By Elizabeth Byrd Wood

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.  In this post Elizabeth Byrd Wood, a staff member at the National Trust for Historic Preservation, takes a look at responses from an informal survey of preservationists who have been involved in Section 106 consultations.
 

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​

Last year, about 140,000 Section 106 reviews took place in states across the country. When the program first got underway in 1966, that annual number was much lower, but when you do the math, it still adds up to hundreds of thousands of reviews about federal actions and their impact on historic resources over the past 50 years. What have we learned? And how is the program working?¹

To find out, we conducted an informal survey of preservationists who have been involved in Section 106 consultations and asked them to give us their thoughts on how the program is working and what might be improved upon in the future. Most respondents were old hats at Section 106, having worked in the field for more than 15 years. Over the course of their work, they have reviewed the potential effects from a wide variety of projects ranging from road realignments to irrigation ditches and from visitor centers to wind energy. They have worked with a long list of federal agencies—transportation, housing, defense, environment, communications, and land management, among others.

Most of the respondents were in agreement about the strengths of the program. They commented that Section 106 is important because it requires agencies to take historic resources into consideration when undertaking a project and provides the public and other interested parties a seat at the table. Mark Epstein, deputy state historic preservation officer for Ohio, says, “Section 106 allows for consideration of all factors that influence why and how an undertaking is done, so that historic preservation can get a fair hearing if the agency makes a good faith and reasonable effort to comply with the law. Also, if timed properly, Section 106 encourages agencies to implement good planning practices, especially for large-scale and multi-phase projects, even when preservation is not a major factor.”

Several people noted that Section 106 works especially well with agencies that have cultural resources staff. Mary Hopkins, Wyoming State Historic Preservation Officer, commented, “The agencies who have cultural resource staff who deal with the process on a daily basis are very easy to work with, those agencies who do not have a lot of experience or do not have staff, need support to make it go smoothly. The process needs experienced practitioners who are knowledgeable in the resources and dynamics of the personalities involved.”

A few respondents indicated that the programmatic agreements developed by the Advisory Council on Historic Preservation and the National Conference of State Historic Preservation Officers have made the process more efficient. According to Chris Merritt, deputy SHPO from Utah, the heavier use of PAs in the last few years is “helping to streamline the procedures and hopefully offsetting some of the workload for diminishing federal preservation staff.”

When asked about what is not working well in the Section 106 process, a number of people commented that the process has, over time, simply turned into checklist of bureaucratic responsibilities. “The 106 review is viewed as a required administrative process, rather than as a tool for considering and finding alternatives to action that will have an adverse effect,” says John J. Cullinane, AIA.

Others commented that the original intent of the law has been lost. Agencies focus on the process, not the resources. One person commented on the generalization that SHPOs are seen as obstructionists and federal agencies are thought to not care about the historic environment. Another individual says that the process has become more perfunctory and prescriptive instead of focusing on planning, considering, and discussing.

Federal agencies that ignore or shrug off Section 106 responsibilities was another concern by many of the people surveyed. Nebraska’s review and compliance coordinator Jill Dolberg says, “After seven years of doing Section 106 reviews for this office, there are some federal agencies that I have never heard from. I can’t imagine that they do not have projects that are subject to review… I have often noticed that the federal agency seems to have delegated their responsibilities to local folks without explaining how 106 is done. In other words, projects occur without review.”

Several respondents commented that there isn’t much of a “stick” for agencies that do not comply. Mark Epstein from Ohio notes, “By its very nature, Section 106 may seem like a voluntary requirement because it lacks the enforcement provisions inherent in other environment review laws. Because the statute places the burden solely on the agency to define its undertaking, it is possible for agencies to avoid compliance, or at least not comply fully and consistently.”

More creative mitigation is needed, according to some respondents. “Often mitigation is too predictable and lacks any imagination,” says Lesley Wischmann, a board member of the Alliance for Historic Wyoming. She pleads, “No more projects where the mitigation is only brochures, websites or interpretive signs, please!"

Many believe that education and training is crucial to the success of the 106 process—education for 106 practitioners, agencies, and applicants. And not just education about the process itself, but the value of cultural resources.

The need for agencies to consider historic significance more comprehensively was mentioned, especially in light of projects that affect places that matter to tribes. Dean Suagee, an attorney with a firm that represents tribal governments, says, “Tribal people who use the historic preservation process tend to be largely concerned with trying to protect sacred places, rather than with preserving historic properties…When an issue is framed as religious, non-Indians become reluctant to pursue the conversation, and this is compounded by the perceived or real need for confidentiality regarding certain aspects of tribal religions.”

Tom King, a consultant in Maryland who is also the author of several books on Section 106 review, reminds us, however, that “when Section 106 began ‘tribal projects’ weren’t really on the radar screen. Tribal sites began being considered in the early 1970s, but primarily from a white-eyed archaeological point of view. Tribes got themselves involved in the 1980s and forced changes in law and regulation that emerged in the 1990s.” He goes on to say that “agencies and consulting firms have fought back in the new century by promoting narrow interpretations of the law, regulation, and especially National Register guidance…The evolution [of consultation of tribal projects] continues, with uncertain prospects.”

Age and experience have brought about improvements to the Section 106 process. When asked about the evolution of Section 106 over the past 50 years, we received the following comments:

“Tribal provisions have been incorporated into the law providing THPOs with more authority in the review process.”

“Section 106 has gone from a last-minute consideration to being a part of an upfront planning process with a far better outcome.”

“Acceptable mitigation procedures and mitigation standards have become more defined.”

“We have applied lessons learned from controversial projects to new projects to minimize problems.”

“Opportunities for public involvement in project development have expanded which has resulted in some good outcomes.”

In all the responses we received about Section 106 one thing stood out the most. While the process could be improved in some way, it remains one of the strongest tools preservationists have to protect historic places around the country.

Have something to add? How you think Section 106 consultation has evolved over the last fifty years? In what way does consultation work well? In what ways could it stand to improve? Let us know in the comment section below.

 

Notes:

1. See also Section 106 of the National Historic Preservation Act: Back to Basics


Elizabeth Byrd Wood is senior content manager at the National Trust for Historic Preservation.

 

#Planning #Section106 #Legal #PublicLands