In 2010, the National Trust for Historic Preservation commissioned a detailed study by Leslie Barras, a lawyer and consultant on issues relating to environmental and historic preservation advocacy and compliance.
The report, entitled Section 106 of the National Historic Preservation Act: Back to Basics, urges federal agencies to take more seriously their obligations to comply with the basic statutory mandate (on the books since 1966) to consider the effects of their activities on the nation’s heritage.
The direct and indirect influence of the federal government on America’s heritage is inescapable. Hundreds of thousands of buildings, archaeological sites, and cultural landscapes are owned and administered by federal agencies. Hundreds of thousands of others are affected by projects carried out with federal funding support, including the huge infusion of federal recovery funds now being used for state and local infrastructure improvements. And many thousands of historic sites and cultural resources are affected each year by the actions of private companies or individuals operating under federal licenses or permits – from wind farms to mining operations.
Since the mid-1960s – largely in response to the widespread demolition of historic neighborhoods in the name of urban renewal – federal agencies have been directed by Congress to evaluate the impacts of their programs and projects (and non-federal programs and activities they support) on historic properties, and to do so before taking action and before approving any permit or funding.
This statutory requirement, set out in Section 106 of the National Historic Preservation Act, imposes a procedural obligation: That federal agencies consider the effects of their actions on historic sites and cultural resources listed in or eligible for the National Register of Historic Places, and obtain the views of an independent federal agency – the Advisory Council on Historic Preservation – regarding actions that will adversely affect historic resources. While there is no mandate that federal agencies avoid harming historic resources, the simple obligation to “stop, look, and listen” has proved to be one of the most important aspects of federal historic preservation law.
When applied properly, Section 106 (the shorthand term used by practitioners in the historic preservation field) has proved to be an effective planning tool, encouraging agencies to engage the Advisory Council, interested members of the public, and representatives of State Historic Preservation Offices, Tribal Historic Preservation Offices, and Native American Tribes, often resulting in reshaping federal (or federally-assisted) projects to avoid or minimize harm to historic resources.
On the other hand, when Section 106 is not applied properly, agencies lose critical opportunities to avoid harming historic properties, and the results can be devastating for communities that value their heritage. All too often, this happens because the Section 106 consultation process is poorly integrated into federal agency planning and is carried out too late to allow project plans to be changed. However, in some cases, federal agencies ignore their responsibilities altogether.
This groundbreaking report – the first comprehensive review of federal compliance with federal preservation law in recent years – concludes that, “[W]hile the statutory and regulatory framework of Section 106 remains sound, actual implementation of this important preservation tool suffers in several key respects.”
First, Barras notes that many federal agencies recognize their responsibilities and ensure that their paperwork is managed well, but tend to apply their obligations in a “rote” manner that gives little serious consideration to planning to avoid or minimize harm to historic places. Second, other federal agencies “do not often understand, or give only perfunctory attention to, their compliance responsibilities” under Section 106.
In both cases, Barras concludes, “there is a compelling need for attention to and reinforcement of the basic purpose of the [Section 106] review and consultation process.” Quoting from the regulations implementing Section 106, she emphasizes that the essential obligation under the statute is that federal agencies, at the early stages of project planning, “identify historic properties potentially affected by [a federal] undertaking, assess its effects, and seek ways to avoid, minimize, or mitigate any adverse effects on historic properties.” Too often, the report suggests, agencies treat this statutory requirement simply as a process to endure, and not a meaningful obligation – or opportunity – to consider alternatives that would actually preserve historic resources. It is also often commenced too late in the federal decision-making process to have any real chance of serious consideration.
Addressing these shortcomings, Section 106 of the National Historic Preservation Act: Back to Basics suggests a number of different ways to ensure that federal agencies take more seriously their statutory obligation to consider the impacts of their activities on America’s cultural heritage. The report makes seven key recommendations, each accompanied by a set of more detailed suggestions to improve Section 106 compliance:
- Federal agencies must endorse and compel compliance with Section 106.
- Federal agencies need to ensure earlier and broader integration of preservation values in their planning processes.
- The Advisory Council on Historic Preservation should vigorously assert Section 106 as its core mission.
- Improvements are needed to increase consulting party access and public involvement in the Section 106 process.
- State and tribal Section 106 programs should be supported by fees and full appropriation of proceeds in the national Historic Preservation Fund account.
- Prior to further federal agency use of alternative approaches to comply with Section 106, the Advisory Council should establish standards to promote accountability for implementing these “program alternatives.”
- Section 106 stakeholders should pursue new ways of using technology, while improving and expanding existing uses.