Section 106 of the National Historic Preservation Act: BACK TO BASICS by Leslie E. Barras PART 2: TECHNICAL REPORT 1785 Massachusetts Avenue, NW Washington, DC 20036 202.588.6000 [email protected] www.preservationnation.org ABOUT THE AUTHOR : This report was researched and drafted by Leslie E. Barras, an attorney and consultant based in Orange, Texas, who advises and assists public interest groups, government agencies, and businesses on issues relating to environmental and historic preservation advocacy and compliance (www.rulepilot.us). The report was prepared with editorial assistance and insights from the experiences of the legal staff of the National Trust for Historic Preservation. Copyright © 2010, National Trust for Historic Preservation. All rights reserved. THE NATIONAL TRUST FOR HISTORIC PRESERVATION (www.PreservationNation.org) is a non-profit membership organization bringing people together to protect, enhance and enjoy the places that matter to them. By saving the places where great moments from history—and the important moments of everyday life— took place, the National Trust for Historic Preservation helps revitalize neighborhoods and communities, spark economic development and promote environmental sustainability. With headquarters in Washington, DC, eight regional and field offices, 29 historic sites, and partner organizations in 50 states, territories, and the District of Columbia, the National Trust for Historic Preservation provides leadership, education, advocacy and resources to a national network of people, organizations and local communities committed to saving places, connecting us to our history and collectively shaping the future of America’s stories. Funding for this report was generously provided by the David & Julia Uihlein Special Initiatives Fund of the National Trust for Historic Preservation. CONTENTS PART II: TECHNICAL REPORT – SUMMARY CONTENTS Introduction 1 Section 1: Historical Background 3 Section 2: The Section 106 Process and Its Participants 17 Section 3: Federal Agencies 47 Section 4: Planning 81 Section 5: The Advisory Council on Historic Preservation 109 Section 6: Public Participation 139 Section 7: Funding 155 Section 8: Program Alternatives 167 Section 9: Technology 175 Glossary & Table of Acronyms 183 Section 106: Back to Basics—Technical Report i ii Section 106: Back to Basics—Technical Report PART II: TECHNICAL REPORT — DETAILED CONTENTS Introduction 1 Section 1: Historical Background 3 Early Preservation Policy in the United States 3 Post-World War II Years 5 The 1960s and the Genesis of the National Historic Preservation Act 6 The National Environmental Policy Act 11 Notes 14 Section 2: The Section 106 Process and Its Participants 17 Overview 18 The Advisory Council on Historic Preservation 19 Federal Agencies 22 The Courts 26 The U.S. Congress 27 Native Peoples 28 State Historic Preservation Officers 31 Certified Local Governments 33 Public Interest Groups and the Public 34 Applicants for Federal Funding, Permits, or Other Approvals 35 Consultants 37 Appendix 2-1: Rulemaking Affecting the Advisory Council’s Role in Section 106 Consultation 39 Appendix 2-2: Advisory Council Section 106 Activities, FY 1968-FY 2008 40 Notes 42 Section 3: Federal Agencies 47 Key Recommendation: Federal agencies must endorse and compel compliance with Section 106 47 3-1. A presidential memorandum should be issued reinforcing federal agency responsibilities under the National Historic Preservation Act and requiring reporting on current compliance 48 3-2. The Secretary of the Interior and Advisory Council Chair should consult with federal agencies on the adequacy of historic preservation staff capacity 51 3-3. Federal agencies that oversee or delegate Section 106 compliance to nonfederal applicants for project funding or approvals should implement robust management systems to ensure procedural compliance with the law 54 Section 106: Back to Basics—Technical Report iii 3-3-1. Legal authority for federal delegation of Section 106 compliance clearly exists 57 3-3-2. Many federal agencies lack formal procedures and criteria describing responsibilities and necessary qualifications of nonfederal applicants in the Section 106 process. 59 3-3-3. Federal agencies may lack sufficient internal management controls to ensure procedural compliance with Section 106 61 3-4. Special responsive strategies should be developed to address the challenges of Section 106 compliance when nonfederal parties receive project funding or approvals as a result of massive economic or disaster recovery initiatives 66 3-5. Government performance and accountability reports should more specifically and prominently identify progress made and improvements needed in federal preservation programs 68 Appendix 3-1: Federal Employment, Six Preservation Disciplines, March 2009 75 Notes 77 Section 4: Planning 81 Key Recommendation: Federal agencies need to ensure earlier and broader integration of preservation values in their planning processes 81 4-1. In many cases, consideration of historic properties could be improved through better coordination or integration with National Environmental Policy Act compliance 82 4-2. The Advisory Council should be more active in fulfilling its commenting responsibilities under the National Environmental Policy Act 89 4-3. Environmental management systems should be expanded to encompass cultural resources, including Section 106 implementation 91 4-4. Sanctions should be imposed on federal agencies that misuse environmental reviews and prevent meaningful Section 106 compliance 93 4-5. Interstate projects provide an opportunity to plan for strategic and consistent ways to identify and evaluate archaeological sites 95 4-6. Earlier consideration of preservation values should be promoted through increasing preservation advocates’ participation in agency advisory committees. 99 4-7. Outreach to groups not traditionally familiar with Section 106 should be further expanded, including development interests and the media. 101 Appendix 4-1: U.S. EPA Rating Criteria, Environmental Impact Statements 103 Notes 105 iv Section 106: Back to Basics—Technical Report Section 5: The Advisory Council on Historic Preservation 109 Key Recommendation: The Advisory Council should vigorously assert Section 106 as its core mission 109 5-1. Advisory Council members should increase their direct involvement in strategic Section 106 cases 110 5-2. The agency’s role in “Preserve America” should be redefined 112 5-3. The Advisory Council should consider reopening a western office 117 5-4. Checks and balances are needed to reduce conflict-of-interest concerns when the Advisory Council’s “liaison” staff participate in Section 106 reviews for their funding agencies’ projects 119 5-5. There is a compelling need for timely and concrete Section 106 advice from the Advisory Council; opinion letters are one possible solution 122 5-6. Facilitated negotiations should be conducted more often in controversial Section 106 cases, and training in conflict resolution skills should be provided to the Advisory Council’s staff 124 5-7. Expansion of basic and advanced Section 106 training should be facilitated by the Advisory Council 128 Appendix 5-1: Select Examples of Project Outcomes Following the Council Membership’s Involvement in Cases 131 Appendix 5-2: Advisory Council Budget and Staffing, FY 1971-FY 2010 133 Appendix 5-3: Section 106 Guidance Issued by the Advisory Council on Historic Preservation 135 Notes 136 Section 6: Public Participation 139 Key Recommendation: Improvements are needed to increase consulting party access and public involvement in the Section 106 process 139 6-1. Federal agencies should honor the requirement to directly “invite” consulting parties to participate 141 6-2. Consulting parties should be provided a tentative plan of action or roadmap for consultation 142 6-3. The Section 106 advocacy capacity of the National Trust’s statewide and local preservation partners requires strengthening 144 6-4. The use of public participation models of inclusiveness has languished and needs to be resurrected 146 6-5. Federal agencies and applicants for federal funding or approvals should be more responsible to the public for project changes and commitments made in Section 106 reviews 148 6-6. Consulting party and public feedback on their experience in Section 106 reviews needs to be actively solicited 151 Notes 153 Section 106: Back to Basics—Technical Report v Section 7: Funding 155 Key Recommendation: State and tribal Section 106 programs should be supported by fees and full appropriation of proceeds in the national Historic Preservation Fund account 155 7-1. The authority of states and tribes to assess fees to support their Section 106 review responsibilities should be seriously explored 156 7-2. Congress should fully appropriate the proceeds in the national Historic Preservation Fund account 162 Notes 164 Section 8: Program Alternatives 167 Key Recommendation: Prior to further federal agency use of alternative approaches to comply with Section 106, the Advisory Council should establish standards to promote accountability in implementing these “program alternatives” 167 Appendix 8-1: 36 C.F.R. Part 800, Subpart C, Approved Program Alternatives 173 Notes 174 Section 9: Technology 175 Key Recommendation: Section 106 stakeholders should pursue new ways of using technology, while improving and expanding existing uses 175 9-1. “Web 2.0” technology should be harnessed to enhance implementation of the National Historic Preservation Act. 176