Section 106 of the National Historic Preservation Act, Back to Basics, set out to evaluate implementation of this important law with the following questions in mind: Have federal agencies fully embraced and incorporated its concepts in their planning for projects? How well is consultation working? Do applicants for federal assistance have clearly defined roles and responsibilities in the process? Do the regulations that implement this law need to be changed? The National Trust commissioned this report—the organization’s first comprehensive evaluation of Section 106—in large part because of its increasing concern about the program based upon its experience in several massive projects.¹ These projects include post-Katrina disaster recovery efforts in New Orleans and the redevelopment of part of the Pearl Harbor National Historic Landmark. In such cases, the law’s emphasis on prior planning and consultation with a variety of stakeholders to avoid harmful impacts to historic properties was treated in a perfunctory or ineffective fashion. Consideration of the project’s impacts was tacked onto the final stages of the National Environmental Policy Act (NEPA) documentation through the analysis of mitigation options.

The Back to Basics report identifies seven recommendations informed by historical research, the substantial experience of the National Trust’s advocacy staff, and interviews with SHPOs, THPOs, representatives from local preservation organizations, and cultural resource consultants (55 interviews in total). In order to strengthen implementation of the law, Back to Basics makes the following recommendations:

Recommendation 1
Federal agencies must endorse and compel compliance with Section 106.

Implementation of Section 106 is very uneven across the 15 executive departments and 65 independent agencies of the federal government. Based upon federal employment statistics, some agencies do not appear to have sufficient in-house expertise as required in Section 112 of the NHPA. This expertise, which includes archeologists, architects, conservators and curators, historians, landscape architects, and planners, is needed to ensure the professionalism of federal agency historic preservation programs, especially when considering their mission, real property inventory, or construction activities. Securing this expertise through the use of outside consultants to carry out reviews for federal projects is a stopgap response to filling these needs and may, indeed, be a more efficient and cost-effective route to Section 106 compliance depending upon the agency. Nevertheless, some federal expertise is required in order to fully carry out the law. Tribal representatives believe government-to-government consultation is undermined when Section 106 compliance is essentially delegated to private contractors. Citizens report that public participation is short-circuited because it is never fully planned for in the contractor’s scope of work and budget. SHPO staffs are frustrated when they are forced to work with engineers, environmental scientists, or other non-cultural resource professionals with inadequate qualifications and training in historic preservation. Given government spending constraints, it seems unlikely that this deficiency will be remedied. However, it is both possible and cost-effective to train supervisory and other staff to understand what the law entails. Further, the report recommends that compliance with the NHPA, including Section 106, be built into federal employee performance reviews, as a measure of individual accountability.

Section 106 is often triggered because a federal agency proposes to approve or fund a project being carried out by non-federal applicant (e.g., a developer or local government). Interviewees reported a disturbing trend in which applicants are largely delegated the duty to carry out Section 106 review and consultation, most often through informal or with tacit approval of the federal agency. Formal delegation of Section 106 authority to applicants has been authorized by Congress in very few instances, the most notable being certain programs of the Housing and Urban Development (HUD) agency. Federal agencies may authorize applicants to initiate consultation, but remain responsible for all findings and determinations and direct consultation with tribal and Native Hawaiian organizations. Back to Basics recommends that federal agencies more clearly define and limit the roles and responsibilities of applicants in Section 106 reviews and “take back” the agencies’ primary obligation to consult, involve the public, and seek ways to minimize harm to historic properties from projects funded, approved, or otherwise assisted by federal action. SHPO staffs can help in this regard by reinforcing with applicants and federal agencies the need for the federal agency itself to carry out the substance of the required review and consultation.

Recommendation 2
Federal agencies need to ensure earlier and broader integration of preservation valuesin their planning processes.

Section 106 is not a subset of the environmental review requirements of NEPA. While both laws have common elements, which include the need for early planning to identify and meaningfully consider a range of alternatives, the courts have consistently recognized that each law imposes independent requirements that must be fully and separately met.

Importantly, the concept of consultation is unique to Section 106 and requires a two-way communication that simply does not exist within the fabric of NEPA. Consultation is “seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them regarding matters arising in the section 106 process.”² Guidance to the federal agencies further explains that consultation is “built upon the exchange of ideas, not simply providing information” and that the “willingness to explore the possibilities for agreement” upon matters at issue in a Section 106 review is “fundamental” to the concept.³

Many interviewees, and the overwhelming experience reported by the National Trust, is that the independent planning mandate of the NHPA is often thwarted by the disconnected way that federal agencies, applicants, and consultants carry out NEPA and Section 106. Section 106 and stakeholder consultation should be initiated early in NEPA (e.g., the scoping stage for an Environmental Assessment [EA] or Environmental Impact Statement [EIS]) to identify historic properties so that avoidance or minimization alternatives can be designed and evaluated. Instead, “consultation” is often relegated to the very final stages of NEPA analysis (e.g., a Final EIS or even Record of Decision); is delegated to NEPA staff without the appropriate preservation qualifications; and is carried out as a request for written comment on a plan to mitigate harm to historic properties. The experience of interviewees in this regard spans a broad range of agencies and applicants.

Interviews revealed another challenge with NHPA-NEPA, which is that some environmental and cultural resource professionals may tend to compartmentalize their work, rather than embrace the planning as the multi- and interdisciplinary effort it was intended to be. While preservation-minded individuals and organizations do not draw NEPA and Section 106 silos around their beloved buildings or sites, professionals may tend to do so, arguing that the procedural requirements of each law are not a one-to-one match. Neither the Advisory Council nor the SHPOs tend to review NEPA documentation in their independent roles in Section 106, nor do they comment on EIS scoping requests. (Of necessity, often because of severe funding constraints, THPOs are one-stop shops for both environmental and historic property reviews.) The U.S. Environmental Protection Agency (EPA) has an independent role in NEPA that requires that its regional office staff review every EIS, and some environmental assessments, and “grade” the documentation for completeness of analyzing project impacts and the severity of impacts. Historic properties are often omitted from the scope of these reviews.

To remedy this disconnect, a national panel of historic preservation experts was convened by the Advisory Council in 2009 to evaluate the national historic preservation program. Included in its recommendations is a simple set of clear coordination milestones for Section 106 activities in relation to NEPA documentation:

Before a draft EA or EIS is finished or issued, the following three stages of Section 106 review should occur: consultation should be initiated, geographic areas where project impacts could occur (“areas of potential effects” [APE] in Section 106 terms) should be identified, as well as historic properties within the APE; and impacts to these historic properties should be identified in consultation with Section 106 stakeholders.

Commitments to minimize predicted harmful impacts to historic properties should be negotiated and documented before the final NEPA decision document is issued (i.e., before the issuance of a categorical exclusion document, EA/FONSI, or EIS/ROD).

Back to Basics recommends that the Advisory Council, SHPOs, and the EPA use their review and monitoring roles to emphasize the need to respect these milestones. Otherwise, the risk continues that meaningful opportunity to comment on project impacts to historic properties is being foreclosed through implementation of NEPA. Back to Basics further recommends that the EPA use its significant leverage given in federal law to grade “down” the sufficiency of EIS documents that do not reflect full and coordinated compliance with Section 106. Negative ratings in this regard can have adverse consequences that federal or applicant project managers want to avoid, such as project delays and cost increases necessitated by additional compliance efforts, adverse publicity, or even litigation.

Finally, the report identifies specific ways that preservation advocates can promote earlier and better planning for protecting historic properties. For example, proactive options include participation in advisory committees, whether through the Federal Advisory Committee Act (FACA) bodies that each federal agency convenes throughout the U.S., or through local community development block grant committees, or regional transportation committees of metropolitan planning organizations required in each urbanized area of the country. These committees disseminate information and plans of interest to preservationists before projects ever get to the bulldozer stage and they offer the opportunity for preservation to be factored into the planning process.

Recommendation 3
The Advisory Council should vigorously assert Section 106 as its core mission.

The Advisory Council is a small, independent federal agency with substantial responsibility to promote our nation’s cultural heritage. Back to Basics found that, over the 45 years of Section 106 implementation, the agency’s professional staff formally participated in approximately 1 to 3 percent of federal undertakings each year and the agency “members”—those positions established by Section 203 of the NHPA who serve a role akin to board members—formally comment on just 3 to 5 individual projects each year. Under the law, the agency’s formal involvement is reserved to “high-profile” cases, defined as involving important questions of policy or interpretation; proposing substantial damage to important historic properties; precedent-setting in procedural implementation, or involving issues of concern to Indian tribes or Native Hawaiian organizations. These high-profile cases are typically highly controversial. In order to support the Council’s role in these cases, Back to Basics recommends that the professional staff be trained in conflict resolution skills. As of March 2011, the agency reported that it is midway through this staff training.

The Council’s nationwide scope provides excellent opportunities to issue guidance, training, and policy. Thus, the Council can play a significant role in providing clarity in interpretation of the regulations, templates for use in documentation, and concrete examples of effective ways to carry out 106 requirements and the range of mitigation options adopted throughout the country for harmful direct, indirect, and cumulative effects.

Recommendation 4
Improvements are needed to increase consulting party access and public involvement in the Section 106 process.

Over 80 percent of the undertakings reviewed throughout the country from 2004 through 2008 resulted in a “no historic properties affected” determination; 13 percent were determined not to cause adverse effects to historic properties; and only 2 percent required consultation to resolve adverse effects. On the surface, at least, it appears that Section 106 review operates efficiently. The vast majority of these reviews involve only the federal agency or an applicant, or more likely a consultant, and the SHPO. But the involvement of local individuals or groups as consulting parties provides an essential on-the-ground check and balance in the review process. Unfortunately the SHPOs reported that very few of the projects that come across their desk have any involvement by preservation groups or individuals as consulting parties.

Federal agencies and applicants are supposed to seek out and invite public interest consulting parties, in consultation with the SHPO, but very few ever do so. Back to Basics recommends that this requirement to seek out and invite consulting parties be reinforced, especially by the SHPO staff when the project first arrives for review in their office. Further, the report recommends that the National Trust expand its Section 106 technical and training assistance to its local and state preservation partners to better equip them to participate in consultation (see article by Don Klima "Returning Section 106 to Its Populist Roots" on page 13).

Recommendation 5
State and tribal Section 106 programs should be supported by fees and full appropriation of proceeds in the national Historic Preservation Fund account.

Nationwide, SHPO staffs review more than 100,000 Section 106 actions each year. The caseload of tribal preservation staff encompasses in total almost 42,000 reviews each year. The Texas Historical Commission alone averaged 10,550 reviews and actions per year from 2004 through 2008. The top caseloads of the federally approved tribal programs included the Tunica-Biloxi (7,138), Eastern Cherokee (4,751), Spokane (4,525), Catawba (4,407), and Lac Vieux Desert Band (3,037). Sheer caseload numbers, however, do not fully depict the challenges of the states and tribes in their essential roles as consulting parties.

Delegation of the Advisory Council’s “opportunity to comment” role to the states in the majority of federal undertakings was first codified in the 1986 amendments to the Part 800 regulations, while the 1992 amendments to the NHPA and corresponding regulatory amendments in 1999 and 2001 recognized the role of the tribes and THPOs. Federal agencies and applicants have promoted this trend. At the same time, state legislatures have not provided funding to SHPOs to keep pace with the caseload, and Congress has failed to provide adequate financial support for tribal and state preservation programs. Both tribal and state budgets are further challenged by general economic conditions. Deposits to the National Preservation Fund total $150 million annually, funded by proceeds from mineral leasing in Outer Continental Shelf waters. However, the fund is doled out by Congress during the annual appropriation process in percentages far short of authorized amounts.

Back to Basics recommends a model of funding that is widely used by state environmental agencies: a user or service fee for reviews of projects. States spend about $15 billion annually on environmental and natural resource regulatory programs, which are substantially supported by user fees. In most states, the agency does not need to ask the legislature for approval to adopt a fee program, but can do so through an administrative rule-making process. Fees are charged based on experience with the amount of staff labor to do certain tasks as well as other direct costs (e.g., travel) and indirect costs (overhead). Regulated industries and federal agencies do not typically challenge these fees because: 1) they want the regulatory staff to stay “local” instead of in Washington, D.C.; and 2) they want their paperwork to be processed in a timely manner.

State and tribal preservation programs that are federally approved have a duty to meet minimum standards of staffing and other capabilities that require adequate budgets. Back to Basics urges state and tribal leaders to emulate the examples in the environmental arena for viable funding sources through a fee-based system. There should be no federal obstacles to doing so. Section 110(g) of the NHPA authorizes federal agencies to include preservation compliance in project costs.

Recommendation 6
Prior to further federal agency use of alternative approaches to comply with Section 106, the Advisory Council should establish standards to promote accountability for implementing these “program alternatives.”

Federal agencies and applicants have sought alternatives to implementing the step-by-step procedures of Section 106 from the very start. A program alternative can take one of five forms under Subpart C of the Part 800 regulations. A program comment essentially exempts individual activities or types of historic properties from ongoing, project-by-project review by providing the Advisory Council a one-time opportunity to comment. Examples issued to date include certain types of Department of Defense buildings, such as some types of military family housing and ammunition manufacturing and storage facilities; disposal of historic naval ships; and certain repairs and upgrades of historic public buildings (windows, lighting, HVAC systems). Natural gas pipelines and the federal interstate system have been removed entirely from Section 106 reviews in an exemption, another type of program alternative. Alternative procedures are authorized for use by individual Army installations that rely heavily on implementation of their internal management plans and NEPA processes for consideration of historic properties. Standard treatments are intended to apply a pre-established method to treat a certain type of historic property, a category of properties, or a category of effects; however, none have been established at this time.

By far, the programmatic agreement (PA) is the most widely used program alternative. A PA is an agreement between the federal agency, Advisory Council, SHPO, THPO (where applicable), and other stakeholders (National Conference of SHPOs, applicants) that lays out a future process for identifying historic properties and effects and mitigating such effects. Adherence to the PA allows the federal agency or applicant to begin to undertake its activities prior to completing a project-by-project review. PAs include project impacts that are similar and repetitive (e.g., renewing permits for animal grazing in national forests where there are no changes in area or activities); project impacts that occur over multiple states or regions, like a pipeline; and for routine management activities by federal agencies responsible for managing land or historic buildings (e.g., maintaining heating, ventilation, and air conditioning systems).

Back to Basics identifies serious concerns about the use of PAs, in terms of accountability for carrying them out, public access to the agreement documents, and the absence of any type of monitoring after they are signed. The Advisory Council does not even have a complete tally of how many PAs exist, and very few are publicly accessible. Nationwide at least 19 PAs have been executed since the late 1970s. However, this list does not include documents that apply specifically to individual federal facilities (e.g., research laboratories, military bases), land-management units (e.g., national forests) or regions or to types or categories of activities within a state. Based upon the annual reports of the Advisory Council, several thousand of these latter types of agreements exist. The SHPOs sign such agreements for activities within their states. Not all SHPOs can produce a comprehensive set of PAs in effect in their states, however, and compounding the problem is the fact that they have practically no funding to do any type of monitoring of these PAs.

For these reasons, the preservation advocates interviewed for the report eye such agreements as akin to letting the “fox guard the hen house.” Their concerns appear warranted. Back to Basics urges that measures to promote accountability and monitoring be included in PAs before any more are enacted. This would include requiring that the beneficiary of the agreement (federal agency, applicant) hire or contract professional staff to carry out the terms of the PA, conduct routine internal audits and reporting of compliance, provide external reporting to interested stakeholders, and conduct public outreach (including posting the agreements on agency websites).

Recommendation 7
Section 106 stakeholders should pursue new ways of using technology, while improving and expanding existing uses.

Blogs, YouTube, Twitter, Google Earth, and conventional websites are now being used effectively by citizens to highlight the “places that matter” to them. Back to Basics argues that there is a substantial, untapped opportunity for states, the National Trust, the Advisory Council, and others to highlight and support such grassroots-based efforts to contribute to the identification of historic properties. Such efforts are important ways to update old community surveys and identify those properties that spark the most public interest.

Recommendation 7 also addresses the need for more timely coordination of NEPA and Section 106 during project implementation. Currently, managers of large federal construction projects, such as levees or dams, or federally assisted projects, like highways or pipelines, use commercially available project management software packages. These products typically include an “environmental” task or activity with associated deadlines, budgets, and tracking capabilities, but not a task or activity for compliance with Section 106. Back to Basics recommends that the Advisory Council work with software product vendors and other stakeholders to address this deficiency.

Summary of Recommendations

In conclusion, practically all of those interviewed as part of Back to Basics believed that the Advisory Council’s Section 106 regulations provide appropriate flexibility and compliance guidance. However, to make Section 106 better, Back to Basics recommends that there needs to be better funding of SHPO and tribal programs so that these consulting parties may fulfill their responsibilities. The report emphasizes the need for federal agencies to directly assume responsibility for compliance and begin early planning to avoid harm to historic properties.  It also recommends using the Advisory Council’s substantial Section 106 expertise in expanded ways; promoting accountability when program alternatives are used; and promoting grassroots involvement in identifying historic properties through creative uses of technology and consulting in project reviews.

Notes:

¹ http://forum.savingplaces.org/section-106
² 36 C.F.R. § 800.16(f).
³ U.S. Department of the Interior, Standards and Guidelines for Federal Agency Historic Preservation Programs, 63 Federal Register 20498 and Standard 5, Guideline (a), 20504 (Apr. 24, 1998).