Worst Practices for Section 106 Consultation

By Elizabeth Merritt posted 03-06-2015 16:46


Today's working world is often all about “team building.” And there are ground rules for working as a team—to use more business lingo, let’s call them “best practices” and “worst practices.” In practice, Section 106 consultations should be a team exercise, with all parties working together to come up with an agreed-upon solution. Sometimes, however, consultations don’t work that way. As part of this series on Section 106, we will run posts on best practices and worst practices. Here Elizabeth Merritt, the National Trust’s Deputy General Counsel, begins with a list of worst practices, based on her 30 years of experience participating in Section 106 consultation. But don’t get too discouraged after reaching this—for every bad example we’ve seen, we can cite just as many good examples.

 An early Section 106 case involved proposed highway construction  through the French Quarter in New Orleans, which would have affected iconic landmarks such as the St. Louis Cathedral. | Courtesy Wikipedia Commons
An early Section 106 case involved proposed highway construction through the French Quarter in New Orleans, which would have affected iconic landmarks such as the St. Louis Cathedral. | Courtesy Wikipedia Commons

1. A Climate of Intimidation and Exclusion

Have you ever been greeted by a “bouncer” who refused to allow you to enter a Section 106 consultation meeting, or escorted you out the door? This was a practice used in New Orleans after Hurricane Katrina, when agencies such as FEMA, HUD, and the VA responded to the high level of public interest in protecting historic properties by enforcing rigid restrictions on who could attend consultation meetings and how many representatives from each group could attend. The resulting climate of intimidation created an enormous chilling effect on the consultation itself.

2. Comments vs. Consultation (Dodging Dialogue)

Sometimes less is more. The standard NEPA approach of issuing a massive document, accepting written comments, and then issuing another massive document, won’t cut it under Section 106. True consultation requires “seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them.” A meaningful consultation meeting can often accomplish much more than stacks of paper with comments can achieve.

3. The Cone of Silence: Separate Negotiations with State Historic Preservation Office (SHPO) or Advisory Council on Historic Preservation (ACHP)

It is certainly permissible for the governmental parties to communicate about 106 projects without including every consulting party in every conversation. However, over-reliance on agency meetings that exclude consulting parties can undermine the consultation process as a whole. When the agencies “cut a deal” behind closed doors and then present it to the consulting parties, the opportunity for meaningful input is precluded.

4. Inadequate Technology for Communications

Since government budgets are tighter than ever, travel to attend consultation meetings in person is a luxury that is not always possible to fund. As a result, it is especially important for agencies to offer options for participating in Section 106 consultation remotely, by telephone and/or webinar. Sometimes, however, the telecommunications equipment used for Section 106 meetings is inadequate and makes it extremely difficult to capture the comments of all participants. For those on the phone, just trying to follow the discussion is often an exercise in frustration, let alone trying to participate.

5. “Document and Destroy” Mitigation

When mitigation is needed, settling for the traditional approach of preparing HABS documentation to memorialize the loss of a historic property is a missed opportunity for much more creative mitigation. Section 106 places no limits on what can be negotiated as mitigation. Although HABS can certainly be a component of a larger and more robust mitigation package, we should not settle for “document and destroy.”

6. Procrastinating Preservation

Agencies often fail to properly coordinate or integrate the timing of their NEPA and Section 106 reviews. A surprising number of agency staff view Section 106 as a process that only comes into play after the agency has already chosen an alternative. Nothing could be further from the truth. Consulting parties should be included in the process from the beginning. Delaying consultation often has the effect of improperly insulating agencies from parties that might raise objections to an improper “No Adverse Effect” determination, especially if the SHPO is unwilling or politically unable to challenge a questionable finding by the federal agency. (See #10, Political Pressure on SHPOs.)

And for projects that do have adverse effects acknowledged by the agency, Section 106 specifically requires the development and consideration of “alternatives” and “modifications” to the project that would “avoid, minimize, or mitigate” harm to historic properties. Addressing Section 106 last creates a risk of foreclosing these alternatives and modifications. Recent guidance issued by the Council on Environmental Quality and the Advisory Council on Historic Preservation on integrating Section 106 and NEPA should help to reduce the misguided urge to defer preservation considerations for last.

7. Tardy Tribal Consultation

Despite the status of tribes as sovereign governments, tribal consultation is too often an afterthought by federal agencies under Section 106. When federal agencies are tardy or resistant to hearing tribal concerns, the result can be major project delays and controversy. For example, belated tribal consultation regarding the proposed Cape Wind project in Nantucket Sound eventually led to a determination by the Keeper of the National Register that Nantucket Sound itself was National Register-eligible as a Traditional Cultural Property. However, that determination did not occur until more than a year after the final EIS had already been issued, when alternatives had been foreclosed. That belated tribal consultation was strongly criticized by the ACHP in comments to the Secretary of the Interior, and has also been challenged in court, adding years of delay. (More on tribal consultation next week.)

8. Covenants Allowing Cancellation or Non-Enforcement

 Ben Franklin objected to the Postal Service’s determination that the sale of Berkeley’s post office will have “no adverse effect” | Credit: Brian Turner
Ben Franklin objected to the Postal Service’s determination that the sale of Berkeley’s post office will have “no adverse effect.” | Credit: Brian Turner

When historic properties are transferred out of federal ownership, the Section 106 regulations specifically allow a finding of “No Adverse Effect” if the transfer is accompanied by enforceable legal restrictions to ensure the long-term preservation of the property’s historic significance. Agencies such as the GSA, the Department of Defense and the U.S. Postal Service routinely process these dispositions by attaching preservation covenants to the transfer of the historic property, and SHPOs approve these “No Adverse Effect” determinations. Sometimes, however, the protection afforded by these covenants turns out to be illusory. For example, the covenant may allow the SHPO to cancel the restrictions altogether, which could cause problems if the SHPO is facing political pressure to do so (see #10, Political Pressure on SHPOs), leaving the SHPO and preservation advocates with little or no recourse. Another recent example is the Postal Service’s assignment of covenant enforcement duties to itself (notwithstanding the agency’s lack of interest or experience in enforcing preservation covenants), or assigning enforcement responsibility to the SHPO, without providing any resources to support the additional workload. The bottom line is: Read the fine print of any of these types of covenants, and think about worst-case scenarios.

9. Exclusive Privileges Limited to Concurring Parties

Some agencies structure their Section 106 agreements so that only consulting parties who are willing to formally “concur” in the agreement will be allowed to participate in subsequent consultation opportunities, such as design review. The problem is that some parties, including tribes, may not want to be misunderstood as endorsing a project they morally oppose, and thus do not want to concur in the Section 106 agreement as a matter of conscience. The right to participate in ongoing consultation should not be held hostage to this kind of symbolic endorsement, especially when key decisions about project design or other matters are deferred until after a Section 106 agreement is signed.

10. Political Pressure on SHPOs

It’s a reality we all need to understand—that SHPOs serve at the pleasure of the governor, and they are often under pressure not to stand in the way of projects that have strong support from elected officials. A number of SHPOs have suffered consequences for taking a principled stand on a controversial project in the Section 106 process. But consulting parties and the ACHP can often fill the gap, when a SHPO’s hands are politically tied, and collaboration among all parties is essential to making this work.

Want more? Read the full Section 106 series and the series on Section 110 of National Historic Preservation Act on this page.

 Elizabeth S. Merritt is the deputy general counsel for the National Trust for Historic Preservation.

#Planning #Legal #Section106