Forum Journal & Forum Focus

Section 106 Uncensored: Introduction 

12-09-2015 17:35

This issue of the Forum Journal is unlike any that we have done before. For one thing, as you will see, it is almost double the length of our typical quarterly publication. But it is also unusual in the depth to which we have delved into a topic of central importance to us all—Section 106 of the National Historic Preservation Act.

As Milford Wayne Donaldson,chairman of the Advisory Council on Historic Preservation, points out in the first essay, Section 106 is a tremendously powerful tool for preserving America’s cultural heritage. Its obligation that federal agencies “stop, look and listen” before jeopardizing historic resources has saved thousands of special places across the country.

Yet, for all that success, there is far more we can do to maximize the potential of this important law. Too often, Section 106 provisions are ignored, short-changed or, in the case of anticipatory demolitions, actively thwarted. The public’s role in the process is not always used effectively, despite the fact that local communities often stand to benefit most from the preservation of a beloved school, courthouse or community building.

These and other concerns led the National Trust to commission an independent report last year, titled Section 106 of the National Historic Preservation Act: Back to Basics (available at https://forum.savingplaces.org/viewdocument/section-106-of-the-national-histori). Author Leslie Barras undertook a comprehensive, nationwide study, including more than 50 interviews with a variety of Section 106 stakeholders, and an exhaustive review of documents. Based on that work, she developed a number of specific recommendations, which are summarized in her essay on page 56.

This issue of the Forum Journal continues the conversation begun by that report. To represent the broad cross-section of perspectives involved in the Section 106 process, we enlisted an extraordinary group of authors, with decades of experience in Section 106 consultation. 

In addition to the Advisory Council on Historic Preservation (ACHP), these authors represent the views of a state historic preservation office (SHPO); a tribal historic preservation officer; a federal agency that is justifiably proud of its historic preservation program; statewide and local preservation advocates; a lawyer who represents preservation advocates; consultants who advise applicants for federal permits and licenses; and the author of the Back to Basics report, Leslie Barras.

Many of these authors have held multiple Section 106 roles over the course of their careers, including stints at SHPO offices, federal agencies, and even the ACHP itself.

They have been remarkably generous in sharing their advice, wisdom, challenges, and candid perspectives on the Section 106 process. You will find powerful arguments for innovative outcomes, as well as case studies from Hawaii, Kentucky, Arizona, and Indiana demonstrating Section 106 at its best.

As our contributors well know, Section 106 may not always function perfectly, but no other federal environmental law requires stakeholders to sit down together and affirmatively seek consensus. This simple mandate of “consultation” often opens the door to productive collaboration and compromise.

We have certainly witnessed this many times at the National Trust over the past 45 years. Just recently, for instance, we celebrated a win/win solution at the Pearl Harbor National Historic Landmark District in Hawaii, where Section 106 negotiations helped to preserve the historic character of this iconic naval base.  We partnered with several public and private groups at Pearl Harbor, including the Historic Hawaii Foundation. As Executive Director Kiersten Faulkner points out in the article on page 34, the Section 106 process brought everyone to the table, and new understanding has developed on both sides as a result.

State and local organizations such as the Historic Hawaii Foundation have a vital role to play in the Section 106 process. Yet, as the Back to Basics report found, effective use of the review process is not always a top priority among state and local preservation organizations, and many would benefit from additional training in Section 106 consultation. The Trust took this finding to heart, and as a first step, we offered a day-long training session for state and local partners at the National Preservation Conference last fall. More training opportunities are in the works at the Trust, and at the ACHP and other organizations. As we have learned through these training programs, and in compiling this issue of the Forum Journal, there is always some fresh insight to discover about Section 106, no matter how well we think we know the review process and the perspectives of other stakeholders.

We certainly drew new ideas and plenty of inspiration from the wonderful spirit of collaboration that distinguished this issue. We hope that spirit comes through in these pages, and inspires you with renewed energy for the important work of saving the places that matter in your communities.

Definitions

As you read these articles, you will come across a number of frequently used terms that apply to Section 106 review. A few key terms are defined here. You can also find a helpful question-and-answer guide to Section 106 at www.achp.gov/106q&a.html.

Area of Potential Effect (APE): The geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties.

Consultation: The process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them regarding matters arising in the Section 106 process. Consulting parties might include the state historic preservation officer, local governments, and applicants for federal assistance, permits, licenses, and other approvals. Individuals and organizations with a demonstrated interest in the site being reviewed can also participate.

Effect: An alteration to the characteristics of a historic property that qualify it forӬinclusion in or eligibility for the National Register.

Memorandum of Agreement:  Document that records the terms and conditions agreed upon to resolve the adverse effects of an undertaking on historic properties.

Programmatic Agreement: Document that records the terms and conditions agreed upon to govern the implementation of a federal agency program or the resolution of adverse effects when the undertaking is complex, or the adverse effects cannot be fully determined in advance.

Undertaking: A project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a federal agency, including those carried out by or on behalf of a federal agency; those carried out with federal financial assistance; and those requiring a federal permit, license or approval.

Section 106 Uncensored:The Insider’s Perspective
Table of Contents

Introduction by Stephanie Meeks
Section 106: Responding Successfully to New Challenges by Milford Wayne Donaldson, FAIA
Returning Section 106 to Its Populist Roots by Don Klima
The Decision Maker’s Guide to Section 106 by Amos J. Loveday, Jr.
Sustaining Section 106 into the 21st Century: GSA’s Perspective by Beth L. Savage
Anticipatory Demolition: Tool for Protection or Paper Tiger? by Andrea C. Ferster
Statewide Organizations’ Involvement in Section 106 by Kiersten Faulkner
Section 106 from the SHPO Perspective by Craig Potts
Section 106 in Indian Country by Alan Downer
Wilson Bridge—A Section 106 Adventure in Saving Indiana’s Historic Bridges by Paul Brandenburg
Back to Basics—Directions for Change in Implementation of Section 106 by Leslie E. Barras



Publication Date: Winter 2012

#Legal #ForumJournal #Section106

Author(s):Stephanie K. Meeks
Volume:26
Issue:2