Section 106 Works

By Special Contributor posted 02-03-2015 17:09

  
By Milford Wayne Donaldson, FAIA

In her introduction to the 2012 Forum Journal on Section 106, National Trust president Stephanie Meeks notes that Section 106 requires federal agencies to “stop, look and listen” before jeopardizing historic resources. This valuable tool has saved thousands of historic sites across the country. But it only works as long as all players—preservationists and federal agencies—clearly understand Section 106 and their role in the process. As we approach the 50-year mark of the enactment of the National Historic Preservation Act and Section 106, the Preservation Leadership Forum has enlisted the help of preservation practitioners to take a close look at how Section 106 has worked over the past five decades. Milford Wayne Donaldson, FAIA, and chairman of the Advisory Council on Historic Preservation (ACHP), begins the series with a general overview of Section 106 and the work of the ACHP.

 African Burial Ground National Monument, New York, NY was an extensive Section 106 consultation. | Credit: ACHP
African Burial Ground National Monument, New York, NY was an extensive Section 106 consultation. | Credit: ACHP
About 140,000 times a year, a federal official or representative consults one or more states, Indian tribes, Native Hawaiian organizations (NHOs), and in some cases the Advisory Council on Historic Preservation (ACHP) and others, including the National Trust for Historic Preservation, about the effects an agency’s actions may have on historic properties. In the vast majority of instances this consultation results in the development of a federal project or program that completely avoids adverse effects to historic properties. In nearly every other instance where adverse effects to historic properties are anticipated, those effects are resolved through written agreement among these parties.

Established by Section 106 of the National Historic Preservation Act of 1966, this review process has been the cornerstone of the federal government’s commitment to ensuring that historic properties are considered in federal planning for nearly 50 years. Bringing a broad set of stakeholders together to find the appropriate balance between historic preservation and development is a hallmark of the Section 106 review process and its key to success. The ACHP, which oversees this review process, works closely with federal agencies and state and tribal historic preservation officers (SHPO/THPOs) to administer it to maximize potential for successful preservation outcomes while assisting federal agencies to improve projects and programs important to the American people.

The ACHP recognizes that, while federal agencies, states, Indian tribes, NHOs, and others have longstanding commitments to identify and protect historic properties, evolving pressures can create challenges. Key challenges include addressing the effects of energy and infrastructure development; ensuring federal agencies and especially SHPOs/THPOs have adequate resources and information to make informed decisions; strengthening the federal government’s commitment to consult appropriately with tribes and NHOs; and, improving the recognition and protection of historic properties important to diverse stakeholders.

The ACHP has taken action to address these and other challenges. The agency worked with the Council on Environmental Quality to develop a handbook on integrating Section 106 with reviews required under the National Environmental Policy Act. Titled NEPA and NHPA: A Handbook for Integrating NEPA and Section 106, this handbook is designed to assist agencies in making the coordination of both reviews more effective and efficient, while improving consideration of natural and cultural resources. Similarly, the ACHP’s work in educating practitioners on the treatment of landscapes, including those significant to Indian tribes and NHOs, as well as efforts to further educate applicants for federal assistance and approvals on the role they can play in protecting historic properties, have strengthened Section 106 reviews and provided energy and infrastructure project proponents with more tools to succeed. The ACHP has also issued a Citizen’s Guide to Section 106 as well as guidance on developing agreement documents to assist all Section 106 practitioners with documenting their commitments to resolve effects to historic properties when they may occur.

 Pete Coffey, Tribal Compliance Officer for the Three Affiliated Tribes, discusses Section 106 tribal consultation practices at the November 6, 2014, Advisory Council on Historic Preservation business meeting. ACHP Chairman Milford Wayne Donaldson, FAIA, is pictured at right of image. | Credit: ACHP
Pete Coffey, Tribal Compliance Officer for the Three Affiliated Tribes, discusses Section 106 tribal consultation practices at the November 6, 2014, Advisory Council on Historic Preservation business meeting. ACHP Chairman Milford Wayne Donaldson, FAIA, is pictured at right of image. | Credit: ACHP
The ACHP has also encouraged the administration to support funding for the development of a national inventory of historic properties to house information on a broad range of historic property types, regardless of whether they are formally listed in the National Register or not. This would establish an information management infrastructure to store and maintain data about known historic properties to improve Section 106 decision making. The ACHP endorses full funding of the Historic Preservation Fund in large part to provide much-needed additional funding to SHPOs/THPOs who play a vital role in federal Section 106 responsibilities but who have been doing so with inadequate resources for years.

Through its work with the White House and federal agencies, the ACHP has promoted greater awareness of the essential role that Indian tribes play in Section 106 reviews and the necessity to conduct meaningful, government-to-government consultation with tribes at the earliest stage possible. Agency work includes hosting summits with tribal leaders in Southern California and the Northern Plains to address Section 106 challenges, advancing ACHP policy to consult Indian tribes on policy development, supporting the United Nations Declaration on the Rights of Indigenous Peoples, and working with other agencies on sacred sites protection.

The ACHP also has been working closely with partners to build a more inclusive federal preservation program. The ACHP has long recognized that federal commitment to protect historic properties must extend to places of importance to all Americans, and that all citizens interested in the protection of historic properties should have a seat at the table. This work includes expanding awareness and identification of significant diverse historic properties. The ACHP encourages agencies to include communities and organizations with cultural expertise, and works with agencies to better recognize traditional cultural places significant to diverse communities as part of Section 106 reviews.

 Signing Ceremony for a Department of Transportation programmatic agreement. Pictured: Sandra Garcia-Aline, FHWA Alaska Division Administrator Judith Bittner, Alaska State Historic Preservation Officer Pat Kemp, Alaska Department of Transportation and Public Facilities Commissioner | Credit: ACHP
Signing Ceremony for a Department of Transportation programmatic agreement. Pictured: Sandra Garcia-Aline, FHWA Alaska Division Administrator Judith Bittner, Alaska State Historic Preservation Officer Pat Kemp, Alaska Department of Transportation and Public Facilities Commissioner | Credit: FHWA
This is done in broad partnership with agencies, states, Indian tribes, NHOs and preservation partners from across the country. Many of these voices will be heard in this blog series which touches on important current issues in Section 106 reviews. Readers will hear from other parties about the challenges Indian tribes and others face in better engaging tribes as well as discussion about Army Corps of Engineers compliance with the requirements of Section 106 for permits it issues. Topics include environmental review requirements for surface transportation projects and impacts to historic properties, as well as challenges with the use of covenants to avoid adverse effects, particularly regarding disposal of United States Postal Service facilities. Finally, the series will showcase best practices to be emulated.

This series of blog posts will engage and expand understanding of Section 106 reviews, their importance to federal planning, and the role they play in protecting countless places important to the nation. The Section 106 review process works and it is enriched and strengthened by active and meaningful participation.

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

Milford Wayne Donaldson, FAIA, is the chair of the Advisory Council on Historic Preservation.

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