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Section 106 from the SHPO Perspective 

12-09-2015 17:35

Thousands of projects are submitted to individual state historic preservation offices (SHPOs) annually for Section 106 review, and each provides an opportunity to protect the well-being of our cultural heritage. While this opportunity does not always result in protection, Section 106 review remains one of the most powerful mechanisms for historic preservation in the nation.

The benefits of Section 106 review are all around you. Chances are that many of the historic places you enjoy and take pride in—from dense urban environments to rural landscapes—were, at some point, considered in part or in whole by this component of the National Historic Preservation Act (NHPA). Highways may have been redesigned to avoid historic farmsteads or archeological resources, cellular towers may have been reduced in height or built on an alternate site to avoid impacts to historic landscapes, monumental government buildings may have been spared from inappropriate renovations, and community development projects may have been altered to better respect the size and scale of neighboring historic buildings. Since its adoption in 1966, Section 106 review has influenced countless projects in both subtle and dramatic ways.

Assistance through Protection

A project is considered a federal undertaking subject to the Section 106 process when its implementation relies on federal funding, assistance, permits or other approvals, and when it has the potential to directly or indirectly affect historic and/or prehistoric resources.1 Despite the complaints often heard by SHPOs that Section 106 review impedes progress or is unnecessarily burdensome on federal agencies and their applicants, the language of the NHPA clearly states an intention that is quite the opposite. Section 1 of the NHPA (Purpose of the Act) states that,

The Congress finds and declares that the increased knowledge of our historic resources, the establishment of better means of identifying and administering them, and the encouragement of their preservation will improve the planning and execution of Federal and federally assisted projects and will assist economic growth and development.

Helping to improve planning and execution along with assisting appropriate growth and development is at the center of the SHPO’s role in Section 106 review. It is sound public policy to consult with various stakeholders, concerned citizens, and interest groups, and to avoid, minimize or mitigate harm to non-renewable historic and prehistoric resources through responsible planning and consensus building. Despite instances of poor consultation and the reluctance of some federal agencies to properly comply with the NHPA at all, most of the projects that go through Section 106 review successfully avoid, minimize or mitigate harm to the historic environment and as a result are planned more responsibly.

Complications and Limitations

While every SHPO has its own dynamic, they operate similarly to one another and try to consistently apply the law. However, consistency is one of the greatest challenges they face. There are a multitude of federal agencies they consult with (some more regularly than others), and a much larger number of applicants who apply for federal assistance and are delegated authority for Section 106 compliance.2 Despite the SHPO’s best efforts, a great disparity exists among these entities regarding their commitment to compliance, their understanding of the requirements, and their internal rules and policies. The reality is that Section 106 on paper is often much different than Section 106 in practice. Too often, the process gets modified to suit specific projects or the needs of federal agencies and/or applicants.

While custom-tailored approaches can certainly meet the spirit and intent of the law, they can and occasionally do push the limits of flexibility. Inconsistency mixed with poor planning and tardy consultation weakens the process and inevitably pits the SHPO and other consulting parties against the applicant and at times the federal agency. This can create political and economic consequences, including pressure on SHPOs from within state government and costly delays to applicants. The pressure increases when arguments concerning the need for job creation and economic development are made.

SHPOs have the ability to influence undertakings in a number of ways, but they hold no veto power and have no decision making “authority.” Influence comes from the process itself and the time it can take to resolve issues that otherwise could turn into legal liabilities for federal agencies. For instance, an agency approach that is more sensitive to historic properties will often reduce delays and limit the potential for lawsuits to be filed by consulting parties and other preservation stakeholders.

Given the SHPOs role in the process, compromise cannot be treated as a dirty word. In some ways, compromise is a necessary outgrowth of the pressures being applied to SHPOs from opposing points of view. Preservation leaders and activists will at times perceive that the SHPO is giving in too much, while applicants, agencies, and elected officials at the federal, state, and local level may perceive that SHPOs wield too much power and push too hard to preserve too much. Given the particular situation, one side may end up much less satisfied with the SHPO position than the other. The process allows for competing interests to be heard at the state level and at the federal level through the Advisory Council on Historic Preservation (ACHP). Attempting to balance these interests is a challenging but valuable component of the regulations.

Improving the Consulting Party Process

While SHPOs represent the citizens of their state and help to ensure federal taxpayer’s dollars are being used in compliance with federal law, SHPO budgets and staffing levels are not sufficient to address all issues on all projects. Despite having access to a tremendous number of survey forms, National Register nominations, historic context and thematic studies, documentation reports, and reference materials housed in their collections, and despite the combined years of staff experience, SHPOs simply don’t have all of the information that may be pertinent to a given project area and don’t always know the full range of concerns. This is why the participation of additional consulting parties is so valuable.

In addition to federally recognized tribes and tribal historic preservation officers (THPOs), Native Hawaiian organizations, local governments, applicants for federal assistance, and of course the ACHP, consulting parties include preservation groups, and individuals who can demonstrate a legitimate interest in a project (such as the owners of affected historic properties). These consulting parties often provide valuable information and reliable perspectives regarding the presence of historic resources and how the proposed undertakings would affect them. Unfortunately, participation by this group is frequently quite low. Preservation organizations and individuals with a desire to be involved should reach out to SHPO staff and stay current on the status of projects being proposed in their local area.

The greatest impediment to consulting party involvement is the inconsistent approach used by federal agencies to properly notify the public and provide reasonable opportunities for its participation. While the NHPA directs federal agencies to invite consulting parties, there is no regulation regarding how notification must be accomplished. Some agencies use their own staff to oversee the notification process, while others delegate the responsibility to applicants who may have little or no experience with Section 106. SHPOs are far too often left with the responsibility to educate these applicants on what can be a very complicated process. Any number of undertakings can be moving forward concurrently, and given that SHPOs have their own responsibility to comment on submissions within a legally defined 30-day period,3 little time is left to monitor or correct the efforts of inexperienced project managers.

In spite of this imperfect notification process, it is worth pointing out that many historic resources are protected because of the ability of preservation groups and individuals to get formally involved under the 106 process. In addition to providing valuable information and perspectives, preservation organizations and concerned individuals can have tremendous influence over the decision-making process. SHPOs often rely on the views of other consulting parties to bolster arguments for preservation. In addition, these consulting parties can play extremely valuable roles when monitoring project activities at the local level. SHPOs have limited travel budgets, and staff are usually unable to visit the undertakings they review. As such SHPOs often rely on consulting parties to tell them when projects are not in compliance, allowing them to take appropriate steps to rectify the situation.

Ensuring Success

The flexible nature of Section 106 review can be extremely effective when used to reach decisions that preserve or enhance historic assets while accommodating needed projects. Indeed, this flexibility opens the floor to different ideas and perspectives. However simply going through the process to “check boxes” that do little more than illustrate compliance, fails to meet the intent of the law. In some instances, SHPOs have witnessed the adoption of rigid schedules by federal agencies and applicants with the aim “to keep the process moving.” But this can push consulting parties from one point in the process to the next, without adequately resolving or responding to disputed issues raised at each step. This is only slightly better than failing to consult at all.

In the experience of the Kentucky SHPO, the most successful Section 106 reviews share common denominators. These include early coordination, a willingness to consider alternatives in project planning, experienced federal agency staff, applicants with a genuine desire to work with and be responsive to participants in the process, well informed consulting parties who work toward consensus, and a general willingness on the part of all involved to be creative. When a clear path to sound decision making presents itself and the conditions above are present, SHPOs are often able to move efficiently through consultation and complete the process to most everyone’s satisfaction. Three noteworthy Kentucky examples illustrate the point:

Sensitivity to Resources Leads to Efficiency in Review

Paris Pike (US-27/US-68) was a meandering two-lane highway connecting Lexington with Paris, Ky., through a 10,000-acre rural historic district in the heart of the Bluegrass Region. Nestled in the largely pristine rolling landscapes are expansive historic horse farms bounded by miles of dry-laid stone fences. Traffic and safety concerns on the 12-mile stretch of roadway resulted in a plan by transportation officials in 1973 to slice a four-lane divided highway straight through the landscape. More than 12 years of heated debate followed, pitting the SHPO and consulting parties against transportation officials, eventually resulting in a lawsuit and a court injunction halting the project. In the mid-1980s, however, something noteworthy happened. The Federal Highway Administration and the Kentucky Transportation Cabinet adopted an approach called Context Sensitive Solutions and applied it to the Paris Pike project. The landscape and heritage of the area would inform a major overhaul of the design, and the SHPO and other consulting parties would be fully involved in the decision-making process.

Within a relatively short period of time, the issues were resolved and a Section 106 agreement document was in place. The road was designed and constructed within the landscape rather than through it. Miles of dry-laid stone walls were reconstructed and historic buildings were avoided and preserved. The federal agency and the applicant now promote this award-winning project as a national model. We would argue the lessons learned regarding thoughtful consultation and creativity were equally important.

Indirect Effects and Archeology

The Mountain Parkway Interchange project near Winchester, Ky., was designed to facilitate emergency vehicle access and response time in a rural area of Clark County known as Indian Old Fields. Transportation officials insisted that the project was not intended to facilitate development despite the commercial development already taking place. As the name Indian Old Fields might suggest, the immediate area was linked with an important Shawnee village and trading post named Eskippakithiki. In addition, archeological investigations, in what was determined to be a National Register-eligible archeological district, revealed a great diversity of historic and prehistoric time periods represented. Given the reasonably foreseeable cumulative adverse effects to archeological resources from development pressure, the SHPO, the Absentee Shawnee Tribe, the Eastern Shawnee Tribe, private consulting parties, and representatives from local governments in Clark County and Winchester successfully argued that indirect adverse effects to archeological resources were present.

Typically, only direct effects are considered when evaluating impacts to archeological resources. The Federal Highway Administration and particularly the Kentucky Transportation Cabinet were willing to consult in good faith and work with consulting parties to resolve the issue. A Section 106 agreement was entered into and funding was set aside for additional analysis, development of a National Register nomination for the archeological district, and the purchase of protective covenants, if possible, in partnership with The Archaeological Conservancy. These measures are currently being implemented. The result is a good reminder that Section 106 review is flexible and can be applied in new ways. Factoring the potential for indirect effects to archeological resources is one such example that has the ability to set a valuable long-term precedent.

Creative Mitigation

With an initial project cost of more than $4 billion, the Louisville-Southern Indiana Ohio River Bridges project is one of the largest and most expensive undertakings currently underway in the country. The project is intended to improve safety, reduce congestion and improve access by constructing two new bridges over the Ohio River—one linking downtown Louisville, Ky., with Jeffersonville, Ind., and one linking eastern Jefferson County, Ky., with eastern Clark County, Ind. The redesign of a critical interchange where I-65, I-71, and I-64 converge in downtown Louisville is also planned. Throughout the Section 106 review process, diverse consulting parties were engaged in the assessment of eligibility and effects to historic properties within a large geographical area, and a substantial number of affected historic properties were identified. The result was a comprehensive Memorandum of Agreement and Record of Decision that stipulated a great variety of mitigation measures to address adverse effects.

Disinvestment in the West End of Louis-ville was seen as a foreseeable indirect adverse effect from the project’s disproportionate enhancement of accessibility and land value in other parts of the Louisville metro area. As a way to mitigate this disinvestment, both from a historic preservation and environmental justice perspective, the Federal Highway Administration (FHWA) committed $10 million to rehabilitate an 1879 trolley barn complex in west Louisville for reuse as the Kentucky Center for African American Heritage. The trolley barn, located in the Russell Historic District, had suffered many years of neglect and its poor condition discouraged revitalization in the traditionally African American neighborhood. The $10 million commitment coupled with additional unrelated financial contributions from the Environmental Protection Agency, the Commonwealth of Kentucky, the City of Louisville, and private donors resulted in a massive historic rehabilitation project that now houses and celebrates the history and culture of African Americans in Louisville and throughout Kentucky. The project is expected to catalyze redevelopment of the area.

The FHWA also provided $1.5 million in additional funding to create a minority craftsman training program in historic preservation to be housed in the new Heritage Center. The goal of this program is to provide opportunities for disadvantaged residents of the west end to develop traditional building skills that can be used to further revitalize Louisville’s West End and beyond. While this example is far from typical, it underscores the value of thoughtful consultation and full consideration of project effects. Working collaboratively and creatively through Section 106 review can benefit historic properties in profound ways and has the ability to encourage ongoing preservation activities long after the federal undertaking is complete.

Final Thoughts

SHPOs must frequently look for ways to do more with less. This is particularly true in harsh economic times, like the one we are in now where governors and state legislatures struggle to prioritize funding for critical services such as public education and health and family services. States value the role SHPOs play in facilitating the expenditures of federal dollars, but are generally unwilling to provide additional funding for regulatory review that could improve and enhance the Section 106 process. This limits SHPOs’ ability to spend the time truly required to properly monitor the many undertakings occurring throughout the state. As a result, they rely on other consulting parties—particularly preservation organizations and interested individuals—for assistance. SHPOs also attempt to streamline review by encouraging better and earlier consultation, project manager education, and inclusive decision-making protocols. Proper compliance and due diligence on the part of the federal agencies and their applicants creates efficiencies in the process and requires less shepherding by SHPOs. It is safe to say that the current political climate does not favor regulation. But the Section 106 regulations are sensible and responsible, because they work affirmatively to cultivate community consensus, and they work best when they are taken seriously and complied with in good faith.

Notes:

1School lunch programs are an example of a type of federally funded program that does not have the “potential to affect” historic properties. “Indirect” effects are those that are “reasonably foreseeable effects caused by the undertaking that may occur later in time, be farther removed in distance or be cumulative.” 36 CFR § 800.5(a)(1).

2Certain programs funded by the Department of Housing and Urban Development (HUD), such as the Community Development Block Grant (CDBG) program, have operated for decades by formal legal “delegation” of responsibility for NEPA and Section 106 compliance to the funding recipient, usually a state or local government. 42 USC § 5304; 24 CFR Part 58. In addition, beginning in 1999, the Section 106 regulations allowed federal agencies to authorize “applicants” for permits and funding to initiate consultation directly with SHPOs and THPOs. 36 CFR § 800.2(c)(4). The regulations caution that the federal agency remains legally responsible for all findings and determinations under Section 106 (as well as government-to-government consultation with Indian tribes). However, applicants range from sophisticated state transportation departments or companies with expert consultants to those that have very limited experience or capacity to carry out meaningful Section 106 consultation.

3SHPOs are under constant pressure because, if the SHPO misses a 30-day comment deadline to respond to determinations of “no historic properties affected” or “no adverse effect,” the agency is entitled to treat the lack of response as an “approval,” even if the SHPO would not otherwise have approved it. 36 CFR §§ 800.4(d)(1)(i), 800.5(c)(1).

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

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Author(s):Craig Potts
Volume:26
Issue:2

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