Forum Journal & Forum Focus

The Decision Maker’s Guide to Section 106  

12-09-2015 17:35

Shortly after becoming Ohio’s historic preservation officer (SHPO), I was invited to speak to a gathering of economic development professionals. With prepared remarks in hand (as I recall the title was “Good for the Purse and Good for the Soul”), I showed up at the appointed time eager to make the case for preservation. In due course the program chair invited me to the podium with the standard introduction—but before stepping away from the microphone added “and, oh, by the way, this is the man who will make your planning life a living hell.” The audience’s subdued chuckles should have alerted me of what to expect—the torrent of horror stories, most associated with Section 106 experiences, that followed.

Over the next 15 years, part spent as a SHPO, part spent in the Federal Communications Commission (FCC) preservation office, and the remainder as a law firm staff member and business owner, I often encountered similar complaints—expressed more or less artfully. Simply put, people who need to comply with preservation rules often see them as a form of torture. Indeed preservationists sometimes even seem to agree. Robert Stipe, for example, described preservation rules and laws as “often highly technical, sometimes to the point of unintelligibility,” and Donovan Rypkema opined that “design standards may seem arbitrary, erratic, and sometimes downright silly.”1

In fact, preservation regulations are no more difficult than rules in other areas that my audiences must comply with. So, why was it that preservation was so frequently regarded as a trip through hell?

There are several reasons, not the least of which is the complexity that Stipe alluded to. While preservation rules are seen as complicated, I decided the real culprit lay in how they are presented. Most educational opportunities around preservation regulations are directed at Cultural Resource Management professionals, agency preservation professionals, or citizen advocates. Business and government decision makers who had little need for the level of technical information that the typical Section 106 course offers, received minimal attention. They had, as it were, been left to fend for themselves in a world of experts and activists.

What these decision makers needed, I soon concluded, was an orientation that provided sufficient background for them to determine when preservation obligations existed, a summary explanation of how preservation compliance worked, guidance on how to organize resources for efficient compliance, and practical suggestions on how to avoid or minimize the unpleasantness that can arise during the 106 process. Accordingly, I began to replace “Good for the Soul and Good for the Purse” in business circles with “The Decision Makers’ Guide,” a presentation tailored for non-preservationists who in course of doing their jobs were responsible for overseeing compliance with Section 106. What follows is a summary of the “guide,” and a sidebar describing programs that delivered it to staff in two specific industries—public safety and pipelines.

Five Myths

As a starting point, project managers should assume that obligations exist to comply with preservation rules for any project that alters the built environment and requires a government (federal, state or local) permit, license or funding. Put differently, the smart project manager assumes there will be a need for preservation compliance until such obligation is ruled out.

Next, project managers should be aware of and avoid certain misconceptions, myths if you will, about Section 106. There are many, but five most often lead project managers astray.

  1. Perhaps the most common myth, and one that preservationists often encourage, is that Section 106 is really just procedural, or that it does not presuppose any particular outcome. The reality is that, while Section 106 does not require preservation of sites, it can impose substantial procedural delays and additional costs on an applicant or organization that does not accept the preferred preservation outcome. As Leslie Barras pointed out in her recent report for the National Trust (see www.preservationnation.org/106), Section 106 (and I would argue other preservation rules) are really “thumbs on the scales” that use procedure to influence desired outcomes.2
  2. Another myth is that federal Section 106 and state/local rules are independent of each other. Again, while technically correct, in practice, this simply is not the case! Common definitions, shared administration, and on occasion actual incorporation of references to the National Register of Historic Places in state and local legislation can mean that decisions made in Section 106 contexts have state and local implications and vice versa. So, for example, a determination made under Section 106 that a previously unevaluated property is eligible for the National Register could bring state and local preservation laws into play. Since local laws often impose more obligations than Section 106, these links can have unanticipated and often financially significant consequences.3
  3. A third myth implies that preservation is broadly opposed to change and, by extension, that Section106 is a tool used to block progress. In most instances nothing could be further from the truth. Preservation is about controlling and accommodating change, and the entire network of preservation rules, beginning with Section 106, is designed to accomplish that end. Understand what kind of change preservationists are willing to accept, be prepared to work for compromise, and preservation will cease to be a significant obstacle in most instances.
  4. In many problem cases I have worked on, project managers have viewed preservation as a tool for other agendas—the “darling of the NIMBYs” as one frustrated executive put it. As with several of the other myths, there is an element of truth here, and, yes, preservation actions often fuel that perception.4 In truth, preservation is most likely to be used for other agendas when the project manager cedes control. Well planned and active engagement by project managers generally prevents Section 106 and other preservation processes from being hijacked.
  5. The fifth myth is that Section 106 compliance is expensive. It need not be. If NPS statistics are to be believed, a relatively small number of 106 reviews actually find National Register-eligible sites or adverse effects.5 Even when there is an adverse effect, mitigation costs are seldom more than a small fraction of a project’s budget when preservation is considered honestly and done early in the project’s planning. In virtually every instance the costs associated with any delay that comes from poor management of or resisting Section 106 are far greater than the costs associated with timely compliance.

The Bare Essentials

Once the myths are dealt with, it is important that project managers understand why and how federal preservation policy works. Here two points are essential. First, project managers need to understand their projects are subject to Section 106 because of the “federal handle.” Agencies that are required by the National Historic Preservation Act to “take into account” historic sites are allowed to and frequently do transfer part of their responsibility to applicants receiving the permit or funding. Consequently businesses often are swept into the agency’s compliance process.

Second, project managers should be aware that, while Section 106 imposes similar compliance requirements for each undertaking, agency procedures often differ. More will be said of this presently, but the point cannot be overstated, since it often causes problems for firms that deal with new agencies. A pipeline company accustomed to working with Federal Energy Regulatory Commission (FERC) and Army Corps of Engineers Section 106 procedures, for instance, will find that FCC procedures are very different when it seeks licenses for wireless communications.

Getting the Job Done or Working with Contractors

Once it is established that a preservation obligation exists, the project manager should turn to experienced people to define and map out those obligations.

For entities that expect many Section 106 cases involving the same agencies, it may be effective to employ in-house professionals to do the work. Most, however, find it more efficient to rely
on contractors.

The good news is that there is a sizable community of contractors, often called Cultural Resource Management (CRM) contractors, who specialize in Section 106 compliance work. Many state historic preservation offices and some industry trade associations keep contractor lists. Another useful source is the American Cultural Resources Association (ACRA), a CRM trade group that maintains an excellent website, which lists its members by state and specialty, and also provides rate information and a code of ethics that, among other things, defines its members’ responsibility to clients.6

The bad news is that “buyer beware” should be the guiding principle in working with CRM contractors.

It goes without saying that references should be checked, work samples reviewed, and, for sensitive projects, interviews conducted. At a minimum a CRM contractor (or a subcontractor working for a general environmental contractor) should:

  1. have the qualifications required by the Secretary of the Interior for certification. (see http://www.nps.gov/history/local-law/arch_stnds_9.htm);
  2. be certified in the subject area(s) the project requires. Simply put, archeologists cannot do the work of a historian and vice versa; 
  3. have experience working in the state and preferably the area in which the project is located;
  4. have worked with the agency that is requiring Section 106 review; and 
  5. be aware of preservation “politics” that may affect the project.  

The CRM contractor, in other words, should be familiar with the likely consulting parties, be knowledgeable about issues that have arisen with similar projects, be aware of preservation sensitivities, and be prepared to discuss these with the project manager during the selection process.

It also goes without saying that the relationship with the contractor should be spelled out in a written agreement.

Although agency requirements and varying project scopes make it difficult to describe a “generic” agreement, a typical agreement will specify that the contractor:

  1. Identify the Area of Potential Effect (APE)—the geographic area in which historic sites need to be identified and the project’s impact evaluated.
  2. Identify and invite consulting parties to comment on the project and then evaluate their suggestions. This is a critical part of any agreement. While there is a natural tendency to avoid critics (and most consulting parties will be critics), failure to identify and maintain proof that consulting parties have been given an opportunity to comment is one of the procedural steps that can delay a project—and might turn into the one that opponents use as a delaying tactic. 
  3. Identify sites within the APE that are listed in or eligible for the National Register of Historic Places. There is a tendency among some project managers to encourage CRM contractors to under-identify eligible sites. This is a mistake! Typically when this happens, SHPOs will require that the work be revisited. Once the SHPO requires additional work, the procedural clocks in many instances are restarted, costing time.
  4. Determine whether adverse effects exist. This is an important provision. Some CRM contractors will identify sites they believe to be eligible and expect the SHPO to determine if effects will occur. Many SHPOs will either send the work back to the contractor or lay the report aside until they have time to do the additional work. Either way the project can be delayed. Moreover, SHPOs, when left on their own, will usually overestimate adverse effects, which can increase mitigation costs.
  5. Suggest strategies for resolving adverse effects if adverse effects are found.
  6. Develop a memorandum of agreement if needed. 
  7. Complete reports required by the state historic preservation office, the agency, and the Advisory Council.
  8. Confidentiality may be required depending on the type of project and the business environment. Unless this is made clear from the beginning, CRM staff frequently will feel under no obligation to protect business information. On several occasions I have discovered consultants sharing confidential information about clients’ plans with SHPO staff and even with the clients’ competitors.
  9. Establish points at which the project manager will review the contractor’s work. It is not possible to overstate how important it is to review CRM contractors’ work—both the reports to be submitted and communications with the SHPO and agency.

Accurate reports are particularly important since SHPO and agency decisions are based on the written record. If that record is inadequate or incomplete, the work will need to be redone, often causing delays.

The “dirty little secret” is that many CRM reports are poorly done. Hence I advise anyone employing CRM contractors to review reports before submitting them to the SHPO or agency. Insisting on this step reduces mistakes and delays from work needing to be redone. Often project managers shy away from doing reviews, feeling they have limited understanding of the process. However they, or a designee, can spot common problems such as inappropriate boilerplate language, bad proofreading, poor photographs/maps, and inadequate fact checking. Any or all of these can indicate broader problems that should be addressed.

Finally, the project manager should keep good records. Section 106 and many state and local rules are designed to allow persons who do not agree to easily challenge conclusions at any stage. In most instances the challenges rely on procedural grounds, so it is particularly important to ensure that a complete record is kept.

Conclusion

In summary the project managers should integrate preservation into their planning early; have an overall understanding of Section 106 and related preservation requirements; employ qualified people to do compliance work; review the work those people do; and keep good records. If one follows these steps, preservation in general, and Section 106 in particular, need not be a trip through Hades.

 The FCC’s Outreach to Decision Makers

The Federal Communications Commission, which is involved in 10,000–12,000 Section 106 cases per year (most involving communication towers), has made a concerted effort to insure that its licensees are aware of and have tools that facilitate compliance. The Nationwide Programmatic and the Collocation Agreements and the Tower Construction Notification System, a tool that facilitates Tribal comments, are perhaps the best known of these tools.

While the practices and procedures articulated in these documents have worked well for the commercial wireless industry, they have been less successful with entities such as public safety agencies and pipeline companies, whose communication undertakings are an ancillary part of their overall business or mission. When the commission discovered that applicants in these industries were not fully aware of Section 106 responsibilities, it launched an educational outreach effort designed to provide their project managers with the information they needed for compliance.

In particular, the commission wanted it clearly understood that the holder of the FCC license was responsible for compliance in spite of claims to the contrary from suppliers and contractors. The commission also wanted to provide the project managers with an understanding of the FCC and preservation rules sufficiently complete to allow them to determine when compliance was required and to permit effective supervision of the specialist often hired to do much of the work. The intent was not simply to provide the standard Section 106 training, but to tailor the outreach to the industry and those within it who hire and supervise Section 106 contractors. To accomplish this end it encouraged educational activities that explained Section 106 and provided guidance on how to find, manage, and evaluate the work of preservation specialists.

The seminars and follow-up activities that resulted reached about 700 people in decision making positions within major pipeline companies, public safety communications equipment manufacturers, and public safety agencies, plus more than 100 Cultural Resource Management professionals who service or wanted to service public safety entities. While it is too soon to evaluate the success of the initiative (the sessions were conducted during the spring and summer of 2011), post seminar contacts indicate that they clearly raised awareness of Section 106 and historic preservation among people in both industries who are in a position to protect historic assets.

To get copies of printed materials for the public safety seminars, send an email to ajloveday@AHLhistory.com

Notes:

1 Bradford J. White, and Paul W. Edmondson, Procedural Due Process in Plain English: A Guide for Preservation Commissions (Washington, D.C.: The National Trust for Historic Preservation, 2004), 1. Donovan D. Rypkema, The Economics of Historic Preservation: A Community Leader’s Guide, Second edition. (Washington, D.C.: National Trust for Historic Preservation, 2005), 98.

2Leslie E. Barras, Section 106 of the National Historic Preservation Act: Back to Basics (Washington, D.C.: National Trust for Historic Preservation, 2010), ii, 29.

3Anyone who doubts such linkage exists or wants to see the extent should look at the Lincoln Place Apartments Case in Venice, Calif. There a determination of National Register eligibility (which was later rejected by NPS) triggered both state and local rules and years of appeals. For an overview of the case and an insight into how rules interlace see Committee on Resources U.S. House of Representatives One Hundred Eighth Congress First Session, Reauthorization of The Advisory Council On Historic Preservation and Private Property Protection Under The National Historic Preservation Act, Oversight Hearing June 3, 2003 (Washington, D. C.: U.S. Government Printing Office, 2003), 22-24. The online version can be seen at http://www.gpo.gov/fdsys/pkg/CHRG-108hhrg87420/html/CHRG-108hhrg87420.htm (accessed October 3, 2011).

4William E. Schmickle, The Politics of Historic Districts: A Primer for Grassroots Preservation (Lanham, MD: AltaMira Press, 2007), 9. For example, William Schmickle observed historic districts “are designated for any number of economic and social advantages may in fact have little to do with genuine preservation.”

5See the following documents produced by the National Park Service, “Historic Preservation Fund Grants to States Program Area Histories FY 1969 Through FY 2005, Program History-Review and Compliance,” dated March 3, 2006, and “Historic Preservation Fund Grants to States FY 2005 Preliminary Data End-of–Year Report Review and Compliance Program Area,” also dated March 3, 2006.

6American Cultural Resources Association, ACRA, http://acra-crm.org/ (accessed October 10, 2011). Lists of contractors are often posted on state historic preservation office websites. The most efficient way to find these lists is to select the state on the NCSHPO website and then search for the consultant list. See National Conference of State Historic Preservation Officers, NCSHPO, http://www.ncshpo.org/ (accessed October 10, 2011).

Publication Date: Winter 2012

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Author(s):Amos J. Loveday, Jr.
Volume:26
Issue:2