Forum Journal & Forum Focus

Returning Section 106 to Its Populist Roots 

12-09-2015 17:35

Walk or ride your bike down Chattanooga’s Walnut Street Bridge over the Tennessee River, a distinctive linear park and a vital lynchpin in the city’s remarkable revitalization, and you will gain a unique appreciation for the value of Section 106 of the National Historic Preservation Act. This 1890 truss bridge, now one of the world’s longest pedestrian bridges, would be little more than a memory if Section 106 had not put the brakes on plans by the mayor and highway planners to demolish the bridge following completion of a replacement span. While officials saw no option but to bring it down, committed citizens had another vision and used the Section 106 review process to make their case.

Similar stories can be found throughout the country where Section 106 led to rethinking project plans and saving historic resources. Although limited to federal actions—those carried out, assisted or approved by the federal government—the sweep of Section 106 has been broad. In countless cases the signature process of good faith consultation among stakeholders provided for by Section 106 has helped to better reconcile development plans with preservation values, often resulting in improved projects.

Clearly, Section 106 has played an important role in shaping the legacy of the modern preservation movement over the past 50 or so years. Looking back over this history, virtually every successful Section 106 case—like the Walnut Street Bridge—has included an indispensable ingredient of active public involvement. In the recently released study Section 106 of the National Historic Preservation Act: Back to Basics commissioned by the National Trust, the author, Leslie E. Barras, correctly makes a strong case that “the vitality and effectiveness of Section 106 depends on active and engaged preservation advocates and members of the public…”1

Given this, one would expect to be able to track over time a growing upward trend of citizen involvement in Section 106 cases, particularly judged against the tens of thousands of projects that have moved through Section 106 review over the years. Unfortunately, this has not been the trend. Indeed there is evidence to suggest that the public struggles to have a meaningful role in the operation of Section 106 today. Barras’ research and interviews with state historic preservation officers (SHPOs) and others highlighted the troubling fact that statewide and local preservation advocacy groups and the public are seldom involved in Section 106 consultations. Why? And, what do we do about it? Answering these questions will be necessary to ensure the continued relevance of Section 106 to the future of the preservation movement.

Those familiar with the daily operation of Section 106 know that the governing regulations (36 CFR Part 800) have traditionally reserved for the SHPO the central role of advising federal agencies on the critical findings in the process, i.e., National Register eligibility, assessment of effects, and resolution of adverse effects. The SHPOs have always been the keystone in the Section 106 arch, fundamental to the operational success of the process. (For projects on tribal lands or affecting properties of religious and cultural importance to federally recognized Indian tribes or Native Hawaiian Organizations, this role is shifted to the tribal historic preservation officer (THPO) under the current regulations.)

Through changes over the years, the Section 106 regulations have always encouraged agencies to involve other interested stakeholders. But in a disturbing trend, agencies have increasingly decided that the course of least resistance to completing Section 106 review is to consult solely with the SHPO. Practical considerations and workload volume have typically limited the SHPOs’ ability to reverse this trend. For agencies, there is little incentive to change this strategy since it continues to deliver outcomes under Section 106. But the net result of this situation is that the public has become further and further removed from decision making in Section 106. Needed systemic changes in the regulations by the Advisory Council are unlikely. There are, however, ample opportunities for greater public involvement in Section 106 if there is a willingness on the part traditional stakeholders to rethink their roles, and on the part of preservation advocates to become more skilled in the use of Section 106.

Need for More Training

Too often preservationists are not trained or experienced in dealing with the Section 106 regulations, are not familiar with their rights under the regulations, and are left frustrated when they do attempt to participate. Often intimidated by the Advisory Council’s regulations, they do not feel like they have the support they need in the process. Training in Section 106 that is currently offered by the Advisory Council or others largely focuses on teaching federal agencies, SHPOs, project proponents, and their consultants how to follow the process. Comparable training for the public has not been available.

Not surprisingly, the need to improve public involvement in Section 106 is among the key recommendations coming out of the Section 106: Back to Basics report. One of the best ways to achieve this recommendation is to develop training for preservation advocates that will enable them to effectively navigate the Section 106 process, capitalizing on the potential strengths of Section 106, while avoiding pitfalls that can marginalize public involvement. The pilot workshop sponsored by the National Trust at the 2011 National Preservation Conference in Buffalo, Harnessing the Power of 106 to Save Historic Places: A Citizen Boot Camp, is a step in that direction. This hands-on training helps preservation advocates develop techniques to serve as consulting parties in the process, build coalitions with other Section 106 stakeholders, and construct a memorandum of agreement under Section 106 that represents and protects the public interest. This training has the potential to provide preservation organizations an important tool to improve their involvement in Section 106.

Balancing the Workload

In their unofficial “crossing guard” role under the Section 106 regulations, the SHPOs have accomplished much, holding federal agencies accountable to plan better for how projects affect historic properties, and protecting important heritage values. Faced with agencies often willing to defer to SHPOs on key Section 106 determinations, and concerned that failure to act could mean the needless loss of historic resources, SHPOs have often stepped into the breach, shouldering much of the burden of the Section 106 process. But fulfilling this role has exacerbated a growing Section 106 workload that has seriously strained nationwide SHPO staff resources and budgets.

The consequence of this dynamic is a situation where the federal agencies continue to coast through the process, over-relying on the SHPOs with little or no effort to invite other likely consulting parties to participate. Preservation advocates who do want to participate in a Section 106 review may discover that the federal agency, with the SHPO’s opinion in hand, has little motivation to listen to contrary opinions from the public. The end result is that the public, by default or design, is effectively cut out of the Section 106 process.

There are no magic-bullet solutions to this problem; however, some options might help rebalance the operation of Section 106 while alleviating SHPO workloads. For example, a SHPO could initially advise agencies to identify how they intend to involve the public, and to identify and invite other consulting parties as required under the regulations (36 CFR §§ 800.3(e)-(f). As appropriate, a SHPO could direct agencies to certified local governments (CLGs). Another option would be to engage the panel of experts designated in each state to serve as the State Review Board in shaping advice to agencies under Section 106. These, and other measures—along with a willingness by the SHPO to “step-aside” so that all consulting parties can be full players—could help change the dynamics of the process in a way that might better enfranchise the public. This approach could point to new and promising directions for how Section 106 might evolve in the future to better recognize that all historic preservation is—and should be—local.

Notes:

1 Leslie E. Barras, Section 106 of the National Historic Preservation Act: Back to Basics (Washington, D.C.: National Trust for Historic Preservation, 2010), 139.

Publication Date: Winter 2012



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Author(s):Don Klima
Volume:26
Issue:2