Home Publications Intro: Alternatives for Implementing Section 106 of NHPA: An Assessment full text

Submitted by the Advisory Council on Historic Preservation, May 1998

Table of Contents

Executive Summary

1. Introduction
   Congressional Request and Context
   Report Methodology
   Organization of This Report

2. Overview: National Historic Preservation Policy
   Section 106 Review

3. Background
   Legislative History of NHPA in brief
   Evolution of the Section 106 Review Process
   Consultation Leading to Agreement
   Proposed Revision of the Section 106 Review Process
   Publication of Draft Regulations

4. Analysis and Recommendations
   Three Threshold Questions Considered by ACHP
   Limitations on the Current Regulatory Reform Effort
   Alternatives Within Existing Legal Framework
   Alternatives Requiring Legislative Change

5. Summary and Conclusions
   Findings
   Recommendations

Executive Summary

Reauthorization legislation for the Advisory Council on Historic Preservation, signed into law on November 12, 1996, directed ACHP within 18 months to

submit a report to the appropriate congressional committees containing an analysis of alternatives for modifying the regulatory process for addressing the impact of Federal actions on nationally significant historic properties, as well as alternatives for future promulgation and oversight of regulations for implementation of Section 106 of the National Historic Preservation Act [P.L. 104-333, Section 509(b)].

Methodology

ACHP’s analysis takes advantage of the wealth of material developed through the regulatory reform effort. In addition, the report examines possible statutory changes related to the content and implementation of Sections 106 and 110(f) of NHPA. The analysis also considers the extent to which operational mechanisms and administrative measures, such as policy, guidance, and practice, might address concerns about implementation short of statutory amendments or major program changes.

Scope of Assessment

The report prepared by ACHP:

• examines possible statutory, regulatory, and non-regulatory actions to improve the application and implementation of Sections 106 and 110(f) of NHPA;
• considers the extent to which regulatory reforms already underway and new non-regulatory policy, guidance, or practice, might accomplish these same goals;
• uses the information gathered through ACHP’s regulatory revision initiative to identify major issues of concern; and
• approaches the request from Congress holistically by considering alternative treatment of nationally significant properties as a subset of more general questions about the implementation of Section 106.

• Should the fundamental nature of the current Section 106 review process be significantly changed?
• Is it preferable that ACHP’s “reasonable opportunity to comment” continue to be defined as consultation leading to execution of a binding Memorandum of Agreement?
• Should there be one set of uniform, governmentwide procedures covering the implementation of Section 106, or should there be more than one procedural and review system that distinguishes between Federal and federally assisted actions or between undertakings on public lands and on private property?
• What implementation alternatives are already available within the existing legal framework?
• What alternatives might be desirable to explore that would require legislative changes?

Findings

1. The fundamental elements of the current Section 106 process are sound and do not require radical change.
2. The concept of consultation leading to execution of binding Memoranda of Agreement has strong support and is a vital component of the Section 106 review process that should be retained.
3. There is considerable flexibility built into both the existing and proposed regulations for implementing Section 106, and there should continue to be one set of uniform, governmentwide procedures. Through its regulatory reform initiative, ACHP has explored alternatives available within the Section 106 statutory framework. The concept of “flexible application” in the administration of the regulation, and mechanisms in place for agencies to develop their own alternative ways to implement Section 106, amply provide for tailoring and streamlining the process.
4. Further operational improvements could be realized through development of implementing guidance, as well as adequate staffing and funding for agency historic preservation programs.

Recommendations

1. Alternatives for the future promulgation and oversight of regulations for implementation of Section 106.
   • Responsibility: For Federal programs carried out by State, local, or tribal governments, consideration should be given to amending the statute in the future to allow Federal agencies to delegate their Section 106 responsibilities to approved State, local, or tribal programs as part of an overall program delegation or approval. ACHP should be involved in reviewing such program delegations and commenting on the Federal agency approval. The rights and responsibilities of applicants should continue to be dealt with in agency-specific guidance and, where warranted by the program, in alternate procedures; no statutory change for that purpose is warranted.

   • Substitution: Considerable flexibility and incentives exist at the present time to promote the integration of historic preservation requirements with other planning approval, and resource protection requirements. However, the success or failure of attempts to coordinate the requirements of Section 106 with procedures for the National Environmental Policy Act (NEPA), as well as similar statutes should be monitored, and ACHP should report on this issue to the President and the Congress within three years of the issuance of its revised regulations. This should allow sufficient time to measure the success of coordination under revised Section 106 regulations and to consider any possible recommendations for statutory changes.

   • Oversight: Consideration should be given to amending the National Historic Preservation Act so that agencies act to internalize historic preservation review more effectively. ACHP also recommends that consideration be given to adjusting the composition of ACHP to provide for organizational representation by the U.S. Conference of Mayors, the National Governors’ Association, and/or the National Association of Counties, rather than by individual gubernatorial or mayoral membership as is presently required. This would give ACHP the benefit of more active participation and advice from State and local governments.

2. Alternatives to the existing review process for properties of national significance.
   • Protection and planning: Consideration should be given to amending the National Historic Preservation Act to require Federal agency cooperation and participation in mandated National Park Service and ACHP reporting and review of threats to historic properties, including National Historic Landmarks. Additional funding or changing priorities in existing Federal agency spending should be considered to help ensure adequate description, protection, and enhancement of threatened or neglected National Historic Landmarks under Federal agency jurisdiction and control.

   • Identification and evaluation: A variety of options should be given serious thought in the future to improve the consideration of National Historic Landmarks and other nationally significant properties. Improvements are needed in the timeliness and completeness of Federal planning activities as they relate to actions affecting nationally significant properties. At a minimum, additional incentives or encouragement for identifying and evaluating such properties before specific construction or other projects are under development should be authorized for States, Federal agencies, and others in the form of targeted grants programs, as well as for research and development of historic theme studies and resource guides. The process of identifying and evaluating potential National Historic Landmarks on certain public lands subject to more intensive uses or development should be accelerated as a matter of national policy.

Summary

In summary, the basic implementation of the Section 106 process is sound, though it certainly merits continuing improvement. Improvements underway, or contemplated in the above recommendations, should result in more thoughtful and efficient decisionmaking and better protection of significant historic properties. Only a small number of the thousands of projects and programs considered under Section 106 of NHPA each year are problematic or controversial. These should continue to receive an appropriate level of attention and public debate, even as we work to improve the planning and review process to forestall or minimize potential disputes of this nature that may arise in the future. At the same time, ACHP is committed to ensuring that program and operational enhancements can and will continue to be developed that promote the effectiveness, consistency, and coordination of other public policies and programs with the purposes Congress articulated so eloquently in NHPA.

Congressional Request and Context

In the course of drafting ACHP’s reauthorization legislation, the Subcommittee on National Parks and Public Lands requested ACHP to examine alternative ways to improve the National Historic Preservation Act (NHPA) and its implementation in the future. This legislation, signed into law on November 12, 1996, as part of the Omnibus Parks and Public Lands Management Act of 1996, directed ACHP within 18 months to

submit a report to the appropriate congressional committees containing an analysis of alternatives for modifying the regulatory process for addressing the impact of Federal actions on nationally significant historic properties, as well as alternatives for future promulgation and oversight of regulations for implementation of Section 106 of the National Historic Preservation Act [P.L. 104-333, Section 509(b)].

The action plan recommended that the report:

• examine possible statutory, regulatory, and non-regulatory actions to improve the application and implementation of Sections 106 and 110(f) of NHPA;
• consider the extent to which regulatory reforms already underway and new non-regulatory policy, guidance, or practice, might accomplish these same goals;
• use the information gathered through ACHP’s regulatory revision initiative to identify major issues of concern; and
• approach the request from Congress holistically by considering alternative treatment of nationally significant properties as a subset of more general questions about the implementation of Section 106.

Report Methodology

In preparing this report, ACHP reviewed existing ACHP reports, testimony related to ACHP’s 1996 reauthorization, and survey results and comments associated with ACHP’s recent regulatory reform efforts. It also consulted National Park Service (NPS) staff and solicited views from the full ACHP membership.

Existing materials

In previous years, several times in response to specific requests from Congress, ACHP has reviewed its regulations, the review process they establish, and related matters. Re-examined in the context of the present study, this material included:

• The National Historic Preservation Program Today (1976), a comprehensive report on the National Historic Preservation Program, prepared at the request of Sen. Henry M. Jackson, Chairman of the Senate Committee on Interior and Insular Affairs. Many of the recommendations contained in that report provided the basis for amendments to the National Historic Preservation Act in 1980, in addition to other policy and statutory actions.
• The National Historic Preservation Act of 1966: An Assessment of Its Implementation Over Twenty Years (1986), prepared in association with the issuance of final revised regulations implementing Section 106 of NHPA.
• Review of Regulations Implementing the National Historic Preservation Act (1990) prepared at the request of the House Committee on Interior and Insular Affairs in its report accompanying ACHP’s reauthorization.
• The House Committee on Appropriations requested ACHP to survey Federal agencies regarding their experience with the Section 106 review process and to make recommendations to address concerns raised by the agencies (1992).

The body of information engendered by ACHP’s ongoing regulatory reform provided further insight into alternatives to the Section 106 process available within the existing statutory framework, including organizational responsibilities under Section 106 and related authorities. In addition to surveys, focus group sessions, public forums, and other formal and informal opportunities for public input, ACHP sought the public’s views on specific issues and drafted revised regulations in two separate Notices of Proposed Rulemaking, published in the Federal Register in 1994 and 1996, respectively.

Discussions with NPS staff focused especially on the treatment of nationally significant properties for which NPS has administrative or other program responsibility.

Review of these and other materials led ACHP to determine that the existing record well represented the views of stakeholders and the general public. As that record makes clear, some of these views are contradictory; however, widespread agreement on many of the basic concepts and approaches embodied in the Section 106 review process is apparent.¹

At the time of its reauthorization, ACHP was in the process of downsizing. From FY 1995 to FY 1996, there was an approximately 18 percent reduction in ACHP’s appropriation, and further reductions resulted from normal increases in the cost of doing business. Level funding from the FY 1996 appropriation continued into FY 1997. This report was produced within ACHP’s normal operations with no additional funding or personnel support.

Organization of This Report

This report begins with an overview of national historic preservation policy as articulated in NHPA with special emphasis on the evolution of the Section 106 review process administered by ACHP. It then addresses the following questions:

1. What have principal stakeholders and others identified as major concerns about Section 106 and related authorities? Are there particular concerns about the regulatory process as it relates to properties significant at the national level as opposed to those significant at the State or local level?
2. To what extent has recent Section 106 regulatory reform addressed these major concerns, including the assertion that the Section 106 process imposes procedural burdens on both public and private parties with little apparent increase in resource protection or preservation? What issues have not been addressed through regulatory reform?
3. Within existing statutory and regulatory processes, can changes in implementation substantially increase historic preservation outcomes, improve cost-effectiveness and efficiency, and serve the public interest?
4. Are statutory or other governmentwide policy changes necessary to achieve these goals? If so, does ACHP have any recommendations for consideration by Congress, the President, or others?

II. Overview: National Historic Preservation Policy

Within the past generation, historic preservation has evolved from a limited and somewhat insular pursuit into a broad-based popular movement. The reasons for this transformation are legion. Some Americans desire a tangible sense of permanence and continuity, while others wish to embrace their heritage in a direct and meaningful way. Recognition that historic preservation is often associated with economic success is an important reason, as is the fact that many see the preservation of historic districts, sites, buildings, structures, and objects as enhancing their quality of life. Largely because of such highly personal responses, public support for historic preservation has flowed from the bottom up, making it in the truest sense a grassroots movement, not just another Government program.

That the past holds extraordinary value for modern society was explicitly recognized in the National Historic Preservation Act of 1966, which found

the historical and cultural foundations of the Nation should be preserved as a living part of our community life and development in order to give a sense of orientation to the American people....[T]he preservation of this irreplaceable heritage is in the public interest so that its vital legacy of cultural, educational, esthetic, inspirational, economic, and energy benefits will be maintained and enriched for future generations of Americans.... (16 U.S.C. 470)

Public-private partnership

NHPA and related legislation established a partnership among the Federal Government and the States that capitalized on the strengths of each.

• The Federal Government, led by the Department of the Interior as the branch with the longest and most direct experience in studying, managing, and using historic resources, would provide funding assistance, basic technical knowledge and tools, and a broad national perspective on America’s heritage.
• The States, through State Historic Preservation Officers (SHPOs) appointed by the Governor, would provide matching funds, a designated State office, and a statewide preservation program tailored to State and local needs and designed to support and promote State and local historic preservation interests and priorities.
• The National Trust for Historic Preservation, a nationwide nonprofit organization chartered by Congress in 1949, would help stimulate and focus public interest and involvement in the national program and encourage the recognition of historic preservation’s importance in communities throughout the Nation.

• An Advisory Council on Historic Preservation, the first and only Federal entity created solely to address historic preservation issues, was established as a high-level body representing diverse perspectives from presidentially appointed citizens, experts in the field, and representatives of Federal agencies and State and local governments to ensure that local communities, citizens, private industry, interested organizations, and other concerned parties would have a forum for influencing Federal policy, programs, and decisions as they impacted historic properties and their attendant values.
• Section 106 of NHPA, administered at the national level by the Advisory Council on Historic Preservation, granted legal status to historic preservation in Federal planning, decisionmaking, and project execution. Section 106 requires Federal agencies to take into account the impact of their actions on historic properties and provide ACHP with a reasonable opportunity to comment; it links Federal planning and action to State, local, and private interests.

Section 106 Review

Congress framed Federal policy to

foster conditions under which our modern society and our prehistoric and historic resources can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations (16 U.S.C. 470-1).

Under its rulemaking authority, the Advisory Council on Historic Preservation issues regulations that implement Section 106, “Protection of Historic Properties,” (36 CFR Part 800). (Many individual Federal agencies have related policies and procedures specific to their programs and most States have guidelines for State use.) The review process established by ACHP regulations requires an agency planning, funding, or licensing a project or program to:

1. identify historic properties that might be affected by the proposed undertaking;
2. assess that undertaking’s likely impact on such properties;
3. consider alternatives to avoid or lessen any impact; and
4. consult with affected and concerned parties to try to reach a solution in the public interest.

The goal of the review process is not historic preservation at any cost, but a “good faith” effort by Federal agencies and interested parties to accommodate historic values with other, often competing, needs. The hallmark of the Section 106 process is dispute resolution through consultation, which may involve Federal agencies, project proponents, SHPOs, and other affected parties ranging from Indian tribes and local governments to owners of private property and citizen groups. ACHP often participates in these consultations, particularly when preservation issues are complicated or the potential for controversy is significant. The outcome of the consultation process is most often agreement among the major stakeholders on a course of action.

If agreement cannot be reached through consultation, the Federal agency seeks the advisory comments of ACHP on its proposed undertaking and takes them into account in reaching a final decision.

ACHP-administered review process is designed to ensure that historic properties significant at the national, State, and local levels of Government receive serious consideration during Federal decisionmaking. The review process applies whenever a Federal undertaking² has the potential to affect historic properties.

III: Background

Legislative History of NHPA in Brief

Signed into law by President Lyndon Johnson on October 15, 1966, the National Historic Preservation Act of 1966 has been amended several times to strengthen and clarify its various aspects. Significant amendments occurred first in 1976 when Congress established the Historic Preservation Fund (HPF) to provide matching grants to the States and the National Trust for Historic Preservation for historic preservation activities. The 1976 amendments also extended the application of Section 106 to properties eligible for listing in the National Register of Historic Places, as opposed to those already listed. ACHP’s authority to promulgate regulations for Section 106 was established in Section 211. Finally, the amendments rendered ACHP an independent Federal agency; until that point, it had been staffed and supported through the National Park Service.

NHPA changed again in 1980 with the addition of Section 110, which governs Federal agency programs by providing for consideration of historic preservation in the management of properties under Federal ownership or control. Originally a codification of Executive Order 11593, “Protection and Enhancement of the Cultural Environment,” issued by President Nixon in 1971, Section 110 established special preservation responsibilities for Federal agencies with an emphasis on property management. Section 110 neither replaced nor invalidated E.O. 11593, but rather supplemented it.

As passed in 1980, Section 110 established procedures for Federal agencies managing or controlling property. Among other things, it specified that agencies must assume responsibility for the preservation of historic properties under their jurisdiction and, to the maximum extent feasible, use historic properties available to the agency. Federal agencies were additionally directed to carry out their programs and projects in accordance with the purposes of NHPA. Further, Section 110(f) requires that, prior to the approval of any Federal undertaking that may directly and adversely affect any National Historic Landmark, agencies must undertake such planning and action as may be necessary to minimize harm to the landmark and obtain ACHP comments on the undertaking.³ The review required by Section 110(f) is similar to that required under Section 106 but involves a higher standard of care. Generally, Section 110(f) review is accomplished under ACHP’s procedures implementing Section 106.

The 1980 amendments also better articulated the duties of SHPOs and provided for the certification of local government preservation programs and for local government participation in National Register nominations and the Section 106 process. ACHP’s duties were expanded to include the evaluation of Federal agencies’ historic preservation programs.

1992 amendments

Congress amended NHPA most recently in 1992, providing a greater role for Native Americans and Native Hawaiians in Federal and State preservation programs. Federal agencies are now required to establish internal procedures to incorporate historic preservation planning into agency programs, and obligating Federal agencies to withhold Federal assistance in cases of anticipatory demolition. The amendments also set forth specific measures to withhold confidential information about the location of historic properties, specify the responsibilities of Federal agencies that receive formal ACHP comments, and clarify several key terms, among them “undertaking,” “State,” and “Indian tribe.”

The 1992 amendments also clarified the fact that properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization may be determined to be eligible for inclusion in the National Register. The amendments direct Federal agencies to consult with any Indian tribe or Native Hawaiian organization that might attach religious and cultural significance to such properties in carrying out the agency’s responsibilities under Section 106. Although the 1992 amendments did not directly amend the language of Section 106, they significantly affected the Section 106 compliance process and its implementation.

A 1992 amendment to Section 211 gave ACHP specific authority to “promulgate such rules and regulations as it deems necessary to govern the implementation of Section 106 of this Act in its entirety” (emphasis added). Prior to that time, some agencies and other parties interpreted ACHP’s authority as limited to implementing regulations on how ACHP would comment on undertakings. This view was supported by an opinion issued by the Office of Legal Counsel of the Department of Justice to the Office of Management and Budget in 1983, during the last revision of ACHP’s regulations (which were ultimately finalized and published in the Federal Register on September 2, 1986). The amendment of Section 211 was intended to resolve this question and make clear that ACHP was authorized to issue regulations that governed all of the Section 106 process.⁴

The 1992 amendments to NHPA increased Federal agencies’ responsibility to consider historic properties during agency decision-making through expanding Section 110 to require each Federal agency to establish a historic preservation program. The program must provide for the identification and protection of the agency’s historic properties; ensure that such properties are maintained and managed with due consideration for preservation of their historic values; and contain procedures to implement Section 106 that are consistent with ACHP’s regulations (16 USC 470h-2(a)(2)(E)). Such procedures, the amendments specify, must provide a process for the identification and evaluation of historic properties for listing in the National Register and the development of agreements in consultation with SHPOs, local governments, Native Americans and Native Hawaiians and the interested public.

The 1992 amendments to Section 110 also add the responsibility that the head of a Federal agency, without delegation, must document any decision under Section 106 where a Memorandum of Agreement (MOA) has not been executed (16 U.S.C. 470h-2(l)). This provision ensures a high level of Federal agency review where there is a failure to reach an agreement and, thus, strengthens the incentives for agencies to sign MOAs. The amendments also codified a provision of ACHP’s regulations stating that “where a section 106 memorandum of agreement has been executed with respect to an undertaking, such memorandum shall govern the undertaking and all of its parts” (16 U.S.C. 470h-2(l)).

Also in 1992, Congress added a provision directing Federal agencies to withhold grants, licenses, approvals, or other assistance to applicants who intentionally significantly and adversely affect historic properties (16 U.S.C. 470h-2(k)). It allows assistance if, after consultation with ACHP, the Federal agency determines that circumstances justify granting the assistance. This provision, known as the “anticipatory demolition” section, is designed to prevent applicants from destroying historic properties prior to seeking Federal assistance in an effort to avoid the Section 106 process.

Evolution of the Section 106 Review Process

From the very beginning, ACHP’s approach toward agency compliance with Section 106 emphasized consultation among various parties as a means to reach agreement on a given course of action. ACHP’s first guidelines for implementing Section 106 were released in 1969. In 1972, following issuance of E.O. 11593, more formal procedures were published in the Federal Register. Revisions to NHPA in 1976 and ACHP’s establishment as an independent agency transformed the procedures into governmentwide regulations that were released in 1979. These regulations, entitled “Protection of Historic and Cultural Properties,” codified the basic steps of the Section 106 process.

The Section 106 process is guided by the following principles:

• Although the “take into account standard requires a process, it does not ordain a particular outcome.
• The process is designed to gather information early in the planning stages of Federal and federally assisted actions in orders to identify possible conflicts between historic preservation objectives and a proposed activity and to resolve those conflicts in the public interest through consultation.
• Emphasis should be placed on making the requirements of the process sensible and not burdensome, while ensuring that reliable information is collected and the views of interested and concerned parties are adequately considered throughout the Federal planning and decisionmaking process
• The process, if properly approached, can encourage creativity and a common-sense approach to problemsolving and conflict resolution.
• The regulations emphasize open, good-faith consultation and the development of binding agreements as the best means of demonstrating how “take into account” has been achieved.
• The regulations provide for participation in the process by all interested persons and by the public in general. Compliance with the regulations should be integrated into the normal administrative process agencies use to plan projects or review grant or permit applications to ensure early, systematic consideration of historic preservation issues.
• The procedural provisions are to be applied flexibly. Differing program requirements and scheduling and funding constraints, among other factors, may thus be considered, as long as the basic requirements of the Section 106 review process are met.

The 1980 amendments to NHPA prompted ACHP once again to undertake revision of its regulations. That effort culminated in “Protection of Historic Properties,” finalized in fall 1986. These regulations were intended to increase flexibility, improve opportunities for public participation, reduce paperwork, eliminate unnecessary procedural burdens, and promote programmatic solutions to historic preservation issues. They also encouraged better tailoring of the government-wide procedures to particular agency or program needs.

Consultation leading toward agreement

The heart of Section 106 review is the consultation process, which frequently takes the form of discussions among the agency, the SHPO, and ACHP staff; other interested parties may participate as well. During consultation, these parties attempt to reach agreement on measures to avoid or mitigate the adverse effects of the agency’s undertaking on historic resources. If the parties agree, they generally execute a Memorandum of Agreement (MOA) or, if an entire program or a complex, staged project is involved, a Programmatic Agreement (PA). Execution of an agreement for every project is not required by ACHP’s regulations, although it is encouraged and has evolved as the most practical means of obtaining resolution of the Section 106 process in the vast majority of cases.

The 1992 amendments to NHPA acknowledged the importance of the MOA in ACHP’s regulations, and stated that, where an MOA has been signed, it must govern the undertaking and all of its parts. In addition, the amendments stressed that where a Federal agency has not entered into an agreement with ACHP and a property will be adversely affected, the head of that agency must document any decision made pursuant to Section 106; that responsibility may not be delegated.

Occasionally, parties to the consultation process fail to agree on the terms of an MOA, and the Section 106 process is terminated. When this occurs, the agency must request the comments of ACHP. In recognizing the importance of resolution through agreements, the 1992 amendments provide that the head of the agency must document the decision where an agreement has not be made; the decision may not be delegated. Terminations of consultation are extremely rare—approximately 5-10 times per year out of the 3,000 or so cases reviewed by ACHP—but when they occur, ACHP members consider the matter and issue advisory comments to the agency head. Comments from ACHP membership do not represent agreement between the agency and ACHP. The head of the agency must consider ACHP’s comments in reaching a final decision on the undertaking and report that decision to ACHP.

Until ACHP issues its comments, the agency is precluded from taking or sanctioning any action that could either result in an adverse effect on the historic property, or foreclose the consideration of modifications to the undertaking that would avoid or mitigate adverse effects. However, ACHP may still have an opportunity to comment as long as irretrievable commitments have not been made.

Although Section 106 and ACHP’s regulations impose important procedural duties on Federal agencies, ACHP is purely an advisory body; it has no authority to impose substantive requirements on an agency. When an agency enters into an MOA, an enforceable legal document, it agrees to implement the agreement’s terms. Similarly, where an agency agrees to impose certain conditions on permits and licenses, such conditions must be carried out. If the agency obtains ACHP’s comments upon termination or foreclosure of the consultation process, it has the discretion not to follow them. However, an agency’s actions are subject to review under the Administrative Procedure Act, which prohibits agencies from acting arbitrarily or capriciously in their decision-making.

Operationally, in 1997 out of some 3,400 cases seen by ACHP approximately 1,600 were resolved by exchange of letters and information materials, and about 780 resulted in negotiated agreements.⁵ More than half of those agreements—some 450—were concluded between the Federal agency and the SHPO and subsequently approved by ACHP. Only about 330 actively involved ACHP in consultation. By contrast, in that year 14 projects were dealt with through comments from the full ACHP membership.

One of the important strengths of the Section 106 process is in the opportunity that it provides for members of the public to express their views and to participate in the Federal decision-making process. Among the innovations in the process that were put into place in 1986 were specific provisions for participation in Section 106 review by a wide range of interested parties, including local governments; applicants for or holders of Federal grants, permits and licenses; owners of affected lands; Indian tribes; and members of the public. Effective public participation is strongly encouraged, and specific direction is provided for agencies to seek and consider the views of the public throughout the process.

Public participation programs established under NEPA and other statutes may satisfy this responsibility if historic preservation issues are made clear in notices and documents. Under certain circumstances specified in the regulations, “interested persons,” those organizations and individuals that are concerned with the effects of an undertaking on historic properties, are to be invited to participate in consultation with the Federal agency, State Historic Preservation Officer, and ACHP in any attempts to reach agreement on a course of action.

In the 1992 amendments to NHPA, Section 110(a)(2)(E) was added to mandate that agency Section 106 procedures “provide a process for...the development and implementation of agreements, in consultation with State Historic Preservation Officers, local governments, Indian tribes, Native Hawaiian organizations, and the interested public, as appropriate, regarding the means by which adverse effects on such properties will be considered.”

Judicial review of Section 106

It is important to understand the role that historic preservation case law has played in shaping interpretations of Section 106 since the 1966 passage of the National Historic Preservation Act. Court rulings from litigation of Section 106 cases have generally been compatible with ACHP’s regulations governing the Section 106 process. In most cases, the courts have deferred to the judgment of ACHP in interpreting the regulations and in deciding whether an agency has complied with Section 106.

Courts have also upheld Memoranda of Agreement executed according to ACHP’s regulations. Once an MOA is executed, courts have relied on its language to interpret the scope of the Federal agency’s Section 106 obligations and the intent of the signatories to the agreement.

When Federal agencies have proceeded with undertakings without compliance, or before completing the Section 106 process and obtaining ACHP comments according to the regulations, courts have enjoined those undertakings. However, as long as the Federal agency meets the procedural requirements, and solicits and considers ACHP’s comments in advance of making its final decision, courts have determined the agency to be in compliance with Section 106.⁶

Proposed Revision of the Section 106 Review Process

As noted above, the 1992 amendments to NHPA affected the way Section 106 review is carried out under ACHP’s regulations. Consistent with this as well as with the goals of the National Performance Review, ACHP undertook a comprehensive review of the current regulatory process with an eye toward streamlining and improving efficiency.

As a part of its information gathering, ACHP sent a questionnaire to 1,200 users of the Section 106 review process, including Federal agencies, SHPOs, State and local governments, applicants for Federal assistance, Native Americans, preservation organizations, independent contractors, and members of the public. The questionnaire sought opinions on the current regulatory process and ideas for enhancing the process. More than 400 responses were received.

After analyzing the responses and holding several meetings with Federal Preservation Officers (FPOs) and SHPOs, ACHP staff presented preliminary findings to a special members Regulations Task Force comprised of the Department of Transportation; the National Conference of State Historic Preservation Officers; the National Trust for Historic Preservation; ACHP’s Native American representative, William Tallbull; expert member Jane Davidson; and Chairman Cathryn B. Slater.

The Regulations Task Force worked to craft regulations that would reflect the following principles:

1. Federal agencies and SHPOs should be given greater authority to conclude Section 106 review;
2. ACHP should spend more time monitoring program trends and overall performance of Federal agencies and SHPOs and less time reviewing individual cases or participating in case-specific consultation;
3. Section 106 review requirements should be integrated with environmental review required by other statutes;
4. Enforcement of Section 106 should be increased and specific remedies should be provided for failure to comply; and
5. Opportunities for public involvement should be expanded.

Publication of draft regulations

This process resulted in the publication of draft regulations in the Federal Register on October 3, 1994, in which ACHP sought to meet the stated findings and objectives adopted by the Task Force. The Notice of Proposed Rulemaking highlighted a number of issues deserving special attention from commenters, including:

• Agency Implementing Procedures: Criteria and a review process for agency-specific procedures for implementing Section 106.
• Exemption of Certain Undertakings from the Section 106 Process: Criteria and a review process for waiving Section 106 for categories of agency actions generally having no or limited effects on historic properties
• Regulation Versus Guidance: Should material be included in appendices to the regulations or in guidance documents issued later?
• Public Participation: Does increased public access to the Section 106 process offset ACHP’s reduced role in individual case review?
• Role of Certain Interested Parties: Clarifies and enhances involvement of individuals and organizations with significant interests in the negotiating process.
• Substitution of State and Local Review Processes for These Regulations: What role should Certified Local Governments play in Section 106 review? Should State review systems continue to substitute for the Federal process under certain circumstances?
• Role of the Federal Preservation Officer: Should the Section 106 regulations define a role for FPOs?
• Disputes Over Application of the Regulations: Where should the final authority rest in resolving disputes over the application of Section 106 and the various determinations made in the process?
• Reviews and Appeals: Should the public be permitted to appeal a Federal agency decision to ACHP at any point in the Section 106 process?
• Notice of Violation: Authorizes ACHP to issue a preliminary or final notice of violation when it determines a Federal agency has acted in violation of Section 106 or ACHP regulations.
• Treatment of Archeological Resources: Undertakings limited to effects on archeological resources not involving human remains as Conditional No Adverse Effects.
• Coordination with the National Environmental Policy Act: Provisions for coordinating the Section 106 review process with environmental review required under NEPA.
• Use of Information Technology: How can the Section 106 review process be expedited and improved through the implementation of technological advances?

At its February 1995 business meeting, ACHP decided to continue the dialogue with major Section 106 user groups with the goal of resolving their concerns. At the same time, the membership reaffirmed the objective of reducing regulatory burdens on Federal agencies and SHPOs and focusing the review process on important historic preservation issues.

ACHP solicited the views of users of the Section 106 process once again by convening separate focus groups with local governments, industry representatives, Native Americans, and Federal agency officials in May 1995. As a result of these meetings and, after considering the views of commenters, in July ACHP informally circulated a substantially revised draft to the 370 commenters on the October 1994 proposed rule.

The informally distributed draft elicited approximately 80 comments. In general, commenters found the July 1995 draft to be an improvement on previous proposal; however, Federal agencies continued to note that ACHP did not go far enough to remove itself from routine cases and bring the process to closure. Agencies also remained concerned that the public participation provisions were too open-ended and inadequately defined the roles and rights of participants in the process. Federal agencies also considered NEPA integration section to be a step forward, but submitted that its substitution provisions should be extended to environmental assessments as well as environmental impact statements and, overall, could provide better integration of NHPA and NEPA.

In contrast to the Federal agencies, the majority of SHPOs did not want ACHP to remove itself further from the Section 106 process and did not want the NEPA integration section to be extended to environmental assessments. The National Conference of State Historic Preservation Officers, as well as many of its members, supported the public participation process as set forth in the July 1995 draft, but sought clarification on the roles and responsibilities of Federal agencies. Industry commenters deemed the July 1995 a vast improvement over the 1994 proposal, but they, too, remained concerned about the appeals procedures and found the process too burdensome. Private industry continued to echo concerns about the public participation provisions.

On September 13, 1996, a second draft proposed rule was published in the Federal Register for public comment. A 60-day comment period began, and the notice provided for an additional 30 days for an Indian tribe to submit comments based upon the request of a tribal government. The notice once again noted a number of issues deserving special attention from commenters. These included:

• Public Participation: Enhancing the regulations to provide for public involvement in a timely and effective manner.
• Local Governments: How can local governments be incorporated into the Section 106 review process without confusing the regulations?
• ACHP Involvement: Criteria for ACHP involvement in the consultation process.
• ACHP Review of Agency Findings: Under certain circumstances, ACHP may review an agency finding even though it has not participated in the consultation.
• Time Frames: Do the time frames set forth in the regulation balance the need for an expeditious process and time for adequate review of the proposed undertaking?
• Alternate Procedures: Should the Secretary of Interior, ACHP, or the Federal agency itself determine if proposed alternative agency procedures are consistent with ACHP regulations?

Perhaps the two groups most concerned about the general direction of the regulations, however, were Indian tribes and non-profit preservation organizations for exactly the opposite reasons. Both of these groups believed that the public’s role was diminished under the proposed regulations. Indian tribes in particular wanted ACHP to participate more often, and were especially concerned with the process for identification and evaluation of historic properties, including properties of traditional cultural and religious importance to the tribes, which they believed would end up slighting such properties without effective consultation with the tribes. Many historic preservation experts and consultants also had concerns about operational issues, as well as questions of interpretation.

ACHP spent some time reviewing and digesting the public comments on the September 1996 draft proposal. During the summer and fall of 1997, ACHP held a series of government-to-government consultation meetings with Indian tribes, and held informal discussions with Federal agencies and SHPOs. ACHP members endorsed the revised draft at their October 24, 1997, business meeting and, after minor amendment and technical revision, Chairman Slater approved its transmittal to OMB in November.

In February 1998, ACHP concluded the last of its meetings with Federal agencies regarding the proposed revisions to the Section 106 regulation. Chaired by OMB, these meetings played a key part in the interagency review of the regulation. Discussions focused on four major areas of agency concern: participation of Indian tribes, the role of ACHP, public involvement, and time frames. Separate meetings were held to discuss the provisions relating to coordination with NEPA and the definition of the term “undertaking.”

The draft regulation is presently in the final stages of OMB review. Remaining policy issues are being worked out before the regulation is published in the Federal Register as a final regulation.

Part IV: Analysis and Recommendations

The following analysis is based on the existing provisions of Section 106 in NHPA, with its two requirements directed at Federal agencies: to “take into account” the effect of an undertaking on historic properties, and to afford ACHP “a reasonable opportunity to comment with regard to such undertaking.”

Three Threshold Questions Considered by ACHP

During the course of the current regulatory reform effort and in the context of preparing this report, ACHP considered three questions that are basic to the historic preservation process as it now operates and as it might operate in the future.

• Should the fundamental nature of the current Section 106 review process be significantly changed?

With few exceptions, notably within certain sectors of industry, those who have made their views known have expressed either outright support or at least lack of opposition to information gathering and consultation to resolve conflicts concerning the fate of historic properties as a reasonable interpretation of the “take into account” and “afford ACHP a reasonable opportunity to comment” language of Section 106. This approach has also been supported by the courts in numerous cases since the 1966 passage of NHPA. As noted above, court rulings have generally been consistent with ACHP’s regulations, and found them to be in accordance with both the letter and the spirit of the Act.

• Is it preferable that ACHP’s “reasonable opportunity to comment” continue to be defined as consultation leading to execution of a binding Memorandum of Agreement?

• Should there be one set of uniform, government-wide procedures covering the implementation of Section 106, or should there be more than one procedural and review system that distinguishes between Federal and federally assisted actions or between undertakings on public lands and on private property?

Where public involvement is important, as it is in Section 106 review and consultation, a plethora of somewhat different procedures may be confusing for potential participants in the process. With the passage of the Urban Development Action Grant program in 1981 under the Housing and Community Development Act (UDAG), ACHP was required to promulgate special regulations (36 CFR Part 801) to ensure expeditious review and processing of grant applications from cities. When ACHP put revised general regulations in place in 1986, the UDAG regulations were superseded; many of the “expedited” time frames contained in the UDAG procedures were incorporated into the revised process. Eventually, Congress phased out the UDAG program. ACHP has opted to continue with one governmentwide procedure.

ACHP believes that tailoring the Section 106 process should be done on an individual agency basis. There is considerable flexibility built into the proposed regulations for agencies to adapt the procedures to their particular program needs through a variety of mechanisms, including alternate procedures, programmatic agreements, exempted categories of agency activities, and standard treatments for particular historic property types. There are also many ways that the regulations can be “flexed” through the development of interpretive guidance. Moreover, special procedures built into the regulations address such situations as emergencies and unanticipated discoveries.

Limitations on the Current Regulatory Reform Effort

During the course of the current regulatory reform effort, several ideas for modifying the Federal historic preservation process have been examined that fall outside ACHP’s statutory authority and/or were inconsistent with established legal precedent or government reinvention principles. Implementation of any of these ideas would require legislative change although they remain based on the “take into account” standard:

• Assign the legal responsibility for historic preservation compliance to project proponents, regardless of whether they are public or private parties.
• Eliminate Section 106 as a separate statutory authority and incorporate historic preservation provisions into the review process established under NEPA.
• Establish a Federal “consistency” provision for review and approval of State-based historic property protection program similar to the program established under the Coastal Zone Management Act.
• Require all agencies to adopt and publish historic preservation policies and procedures for implementing Section 106, including lists of those actions categorically excluded from historic preservation review.

Alternatives Within Existing Legal Framework

Proposed revisions to ACHP's regulations

Through its regulatory reform initiative, ACHP has explored alternatives available within the Section 106 statutory framework and is close to finalizing a proposed revised regulation. Based on five years of investigating and evaluating alternatives to the current structure of the Section 106 process, ACHP has concluded that the current structure is sound. Within that framework, though, opportunities exist to improve the efficiency of the process and increase flexibility for users. The pending revisions are designed to achieve that goal.

The proposed regulation would reduce ACHP’s role in routine case-by-case review under Section 106, and Federal agencies and State Historic Preservation Officers would be given greater authority to conclude Section 106 review. ACHP would assume greater responsibility for overseeing the general functioning of the Section 106 process and focus its case involvement on complex and controversial Federal undertakings, as well as on Federal program improvement and oversight. However, ACHP could enter the process at certain points when it determined its involvement was necessary to ensure that NHPA’s purposes were met. The basis for ACHP involvement in specific circumstances would be spelled out in an appendix to the regulations.

Participants’ roles would be more clearly defined in the revised regulation, with the Federal agency’s primary responsibility of for Section 106 decisions emphasized. The role of consulting parties has been better defined. Opportunities for public participation are more clearly outlined, agencies are encouraged to use their existing public involvement procedures, and the direct interests of applicants for Federal assistance or approval are acknowledged. Applicants would be permitted to initiate and pursue the steps of the process, although the Federal agency would remain responsible for final decisions about historic properties. There are opportunities for better coordination of Section 106 procedures and agency requirements under NEPA.

The proposed revisions would place major emphasis on the role of Indian tribes and Native Hawaiian organizations, incorporating specific provisions for involving tribes as consulting parties and as signatories to agreements when actions occur on or affect historic properties on tribal lands, as well as for consulting with Indian tribes and Native Hawaiian organizations that attach religious and cultural significance to a historic property off tribal lands, as required by Section 101(d)(6)(B) of NHPA.

The proposed revisions would provide for the substitution of the Tribal Historic Preservation Officer for the SHPO when that official has assumed the responsibilities of the SHPO on tribal lands. Moreover, there would be greater recognition of the sovereignty of Indian tribes and the duty to consult on a government-to-government basis. Finally, confidentiality concerns of tribes are addressed.

Flexible application

ACHP’s 1986 regulations introduced the concept of flexible application: “ACHP recognizes that the procedures for the Agency Official set forth in these regulations may be implemented by the Agency Official in a flexible manner reflecting differing program requirements, as long as the purposes of Section 106 of the Act and these regulations are met” (36 CFR § 800.3(b)). This principle has long been followed in ACHP’s approach to interpreting and applying its regulations to specific situations, and ACHP will continue to ensure that this principle is observed. Flexibility in timing, level of effort, consideration of the views of the public, and similar aspects of the process will continue to be given thoughtful consideration during the Section 106 process, as long as the purposes of NHPA and the basic principles set forth in ACHP’s regulations are served.

Alternate procedures

An important dimension of the proposed revised regulations are the many new opportunities built into the system for agencies to develop their own alternative ways to implement Section 106. Since the 1979 version of ACHP’s regulations, agencies have had the option of devising alternate procedures for implementing Section 106. The 1979 regulations defined two options which remain in effect: counterpart regulations and Programmatic Agreements.

The current regulations in Section 800.15 provide for Federal agencies, in consultation with ACHP, to develop counterpart regulations to carry out the Section 106 process. When ACHP concurs, such counterpart regulations stand in place of 36 CFR Part 800 for purposes of the agency’s compliance with Section 106. Counterpart regulations provide maximum flexibility in that the Section 106 review process can be tailored to each agency’s planning and decision-making processes.

Unfortunately, while this opportunity has been available since 1986, few agencies took advantage of this approach, largely because of the difficulty in obtaining internal agency agreement and administrative approvals for new rulemaking efforts. Only one counterpart regulation has been adopted by a Federal agency; these were regulations for some programs of the Farmers Home Administration in the Department of Agriculture. However, in 1997, at ACHP’s recommendation, the Army entered into consultation to develop counterpart regulations. Discussions with a wide range of parties have begun, and draft regulations are expected to be completed in Fiscal Year 1999.

Agencies have tended to tailor the Section 106 process to their needs through agency-wide Programmatic Agreements. Section 800.13 of ACHP’s current regulations illustrate several scenarios where agency’s might pursue Section 106 responsibilities through a PA. A number of agencies have executed PAs with ACHP and NCSHPO that address a wide range of programs or undertakings.

More recently, ACHP has expanded upon the concept of program alternatives in its proposed revised regulations. ACHP’s proposed regulations promote alternative procedures, rather than focusing on counterpart regulations. This is intended to remove the existing impediment of requiring formal regulations to substitute for the standard Section 106 process. In addition, there remain options for programmatic agreements for agency programs, as well as new opportunities to advance exempted categories of agency undertakings and develop standard treatments for different property types or situations.

Standard treatments may be developed for a category of historic properties, a category of undertakings, or a category of effects on historic properties. Categorical exemptions may include actions within a program or category of agency undertakings that would otherwise be subject to review, but for which potential effects have been analyzed and found likely to be minimal or not adverse in most cases.

ACHP will continue to encourage program-specific tailoring through these means, particularly where it has been shown on numerous occasions that such tailoring is necessary for a Federal agency to “take into account” the effects of actions on historic properties. For example, shortly after the current regulatory reform effort commenced, the Interstate Natural Gas Association of America (INGAA) approached ACHP, the Federal Energy Regulatory Commission (FERC), and several land-managing agencies to discuss the possibility of developing an interagency agreement for improved, streamlined review of proposed pipeline projects. INGAA requested ACHP to put this effort on hold pending final revised regulations, but ACHP expects these discussions will go forward once revised regulations are in place.

Guidance

Developing guidance, writing illustrative case studies, and collecting and disseminating successful examples or “best practices” play an important role in improving implementation of historic preservation mandates. So does targeted training.

When surveyed, users of the current Section 106 regulations generally requested more specificity and guidance on various provisions of the review process and the regulations. However, the inclusion of model approaches, examples, and other extensive interpretive material is inappropriate in a government-wide regulation. Case studies geared to particular programs or situations can be especially helpful in communicating policy, concepts, and solutions to difficult problems to individual agencies and organizations.

Representatives from Federal agencies or particular sectors of private industry can share useful knowledge of project planning and execution from their particular perspective and experience, leading to more focused and productive consultation on solutions to historic preservation problems. ACHP’s existing training program has been formulated with these objectives in mind, and there are many fruitful avenues for potential interagency and public-private cooperation in developing training and guidance materials in the future, funds and staff time permitting.

Funding and staffing

It is important to note that procedures can only go so far in ensuring a review system that operates efficiently. Adequate and knowledgeable staffing is essential for those agencies that must carry out Section 106. In this regard, responsible staff capability at the Federal, State, and local level is critical.

The position of Federal Preservation Officer (FPO) in Federal agencies, as required by Section 110(c) of NHPA, can be central to an agency’s ability to meet its responsibilities effectively, and to address policy or operational issues and concerns that arise. Problematic cases or controversial projects under review under Section 106 are often brought to the attention of an agency’s Federal Preservation Officer, who should be in a position to advise the agency head and other important decision-makers, and assist in arbitrating internal agency policy disputes. There is currently no mechanism for ensuring that qualified personnel fill the position of FPO. The National Park Service is working with a group of FPOs and ACHP to develop a recommended curriculum for FPO training, which would meet the Secretary of the Interior’s responsibility to “establish an appropriate training program” in accordance with Section 101 of NHPA.

Similar challenges face State Historic Preservation Officers, Tribal Historic Preservation Officers, and local governments active in dealing with historic preservation issues. There are mechanisms in place through the National Park Service’s administration of the Historic Preservation Fund (HPF) monies made available to States and tribes, and through the Certified Local Government (CLG) program for localities, to ensure that qualified staff are in place. However, the relatively low level of funding support, and its potential fluctuation from year to year through the appropriations process, will continue to present challenges for States, Indian tribes, and local governments in meeting these responsibilities and participating fully and effectively in individual historic preservation cases as well as program-building.

It is important to ensure that there are sufficient staff and operating funds at all levels to deal with historic preservation issues, to develop creative approaches for cost-effective planning and management, and to provide adequate assistance to non-federal parties who may be affected by historic preservation laws. Policies, procedures, alternate approaches, and guidance are only as good as the personnel and programs in place to develop, implement, and administer them.

Alternatives Requiring Legislative Change

In light of the above observations, ACHP has examined in more detail possible alternatives for implementing Section 106, and for adjusting consideration of nationally significant properties in this process, that would require statutory changes. The particular issues analyzed have been grouped according to the two topics posed to ACHP in the request from Congress. Several options are presented for addressing each of the issues, along with a recommended course of action for future consideration by the Congress and other concerned parties.

Should the responsibilities for carrying out statutory measures remain with the Federal agencies, or should they be delegated to others, such as recipients of Federal assistance?

Discussion: As the Federal Government’s program and policy role have evolved over the years, the extent of Federal agency involvement with the planning and decision-making process originally envisioned by Section 106 has changed as well. Many Federal programs involve block grants, State or local program delegations, or approved State permit processes that have limited direct Federal involvement. Indirect forms of Federal assistance such as small loans and loan guarantees are common. Private sector contracted management and concessions, and less than fee-simple acquisition of property, such as rentals and easements have become more and more prevalent. Laws enacted since 1966 supporting Indian self-determination and tribal sovereignty also reinforce local decision-making and control on Indian trust lands.

Thus, the degree to which Federal agencies have clear jurisdiction and control over properties and decisions affecting them has decreased, while the number of outside financial and other interests that need to be considered in planning and decision-making has increased.

In a survey of stakeholders in 1993 about possible changes in ACHP’s regulations for implementing Section 106, there was broad—if cautious—support for enhancing the roles and involvement of State, local and tribal governments in the Section 106 process, but opposition to outright delegation of Federal responsibilities to non-federal parties under the statute.

Under the existing as well as proposed procedures, considerable latitude exists for Federal agencies, through alternate procedures or Programmatic Agreement, to delegate responsibilities to non-federal parties. However, Federal agencies remain legally responsible for the actions of these parties under Section 106, as stated in the law.

Options for addressing the issue:

Option A: Federal agencies could be permitted by law to delegate their Section 106 responsibilities to approved State, local, or tribal programs as part of an overall program delegation or approval. Under these circumstances, ACHP could be involved in reviewing that program delegation and commenting on the approval.

Option B: By law, applicants for Federal assistance, permits, or licenses could be given more explicit rights and responsibilities regarding actions subject to Section 106 review, including full or partial delegation and rights of appeal to ACHP or some other authority.

Recommendation: ACHP recommends that, for Federal programs carried out by State, local, or tribal governments, consideration be given to amending the statute in the future to allow for program approval, with appropriate oversight, as outlined in Option A. ACHP recommends that the rights and responsibilities of applicants be dealt with in agency-specific guidance and, where warranted by the program, in alternate procedures, and thus does not believe a statutory change for that purpose is warranted.

2. Issue: Substitution.

Should compliance with other Federal laws, such as the National Environmental Policy Act (NEPA) or the Federal Land Policy and Management Act (FLPMA), or their state or local counterparts, provide an acceptable substitute for compliance with Section 106?

Discussion: There has long been widespread interest in promoting better integration of historic preservation planning and protection requirements with other environmental and planning statutes. ACHP’s proposed revised regulations take this approach in encouraging better coordination of NEPA and Section 106. On Federal lands, various statutes, e.g., FLPMA, and the National Forest Management Act, require preparation of planning documents, including various types of resource management plans. These could certainly provide a basis for substitution of Section 106 requirements, and often do in limited ways through PAs and other means.

However, there is considerable disagreement over the appropriate extent of this “encouragement” to coordinate fulfillment of the requirements under one law for compliance with another, and whether historic preservation needs would be well- or ill-served if the requirements were so integrated that one statute’s process were substituted outright for another’s. ACHP’s 1993 user survey found definite support (albeit tinged with skepticism from some parties) on promoting better integration of planning and review requirements, but stopped short of supporting substitution of compliance under other laws for Section 106 (including NEPA).

On the other hand, there was some feeling that the Section 106 process should be used more to meet the requirements of other cultural resource laws, including the Archeological Resources Protection Act and the Native American Graves Protection and Repatriation Act.

Options for addressing the issue:

Option A. Language could be added to the statute permitting substitution of compliance under other laws for Section 106, perhaps with a “consistency” provision, i.e., “at least as effective as, and no more burdensome than....”

Option B. A requirement might be added to the law that all Federal agencies must explicitly adopt and publish implementing procedures and categorical exemptions, subject to ACHP approval. This would be similar to the provision in ACHP on Environmental Quality’s regulations implementing NEPA.

Option C. A provision could be added to the statute permitting local governments or regional planning authorities to substitute their review procedures for Section 106 requirements, subject to agreement with ACHP. Certified Local Governments might be given heightened consideration in the Section 106 process or “pre-approval” for this substitution through such a provision.

Recommendation: ACHP believes that considerable flexibility and incentives exist at the present time to promote the integration of historic preservation requirements with other planning, approval, and resource protection requirements, and therefore recommends no statutory change. However, ACHP recommends that the success or failure of attempts to coordinate the requirements of Section 106 with the NEPA procedures as well as similar statutes be monitored, and that ACHP report on this issue to the President and the Congress within three years of the issuance of its revised regulations. This should allow sufficient time to measure the success of coordination under revised Section 106 regulations, and to consider any possible recommendations for statutory changes.

3. Issue: Oversight.

Should oversight and administration of the historic preservation protective system remain where it is, with ACHP, or should all or part of that responsibility be shifted to some other entity? If it remains with ACHP, should the composition of ACHP, or its role in resolving disputes or providing policy advice, be modified?

Discussion: From time to time, questions have arisen about ACHP’s role in overseeing and administering the process. Some have argued that the National Environmental Policy Act provides a de facto umbrella for Federal planning and protective activities, and that ACHP on Environmental Quality and the Environmental Protection Agency could adequately oversee and administer consideration under Section 106 as they do with NEPA.

Others have responded that the issues arising out of historic preservation review would require those entities, or a similar oversight authority, to add staff capabilities with knowledge and experience in historic preservation and its related disciplines, and that perhaps a better approach would be to expand the role and size of ACHP and combine its current oversight functions with some of the technical assistance and administrative programs contained in the National Park Service or other agencies. A middle ground is also possible, with shared responsibility for overseeing and administering the Section 106 process (also, see discussion of “Responsibility” above).

There is also a long-standing debate, dating at least to the legislative action that led to the 1980 amendments to NHPA, that relates to the composition and statutory responsibilities of ACHP itself. ACHP currently includes expert members as well as representatives from a number of Federal departments and agencies. In addition, ACHP has a Native Hawaiian representative, a Mayor, a Governor, the Chairman of the National Trust for Historic Preservation, and the President of NCSHPO. Unfortunately, executive duties often make it impossible for the Mayor and the Governor to attend ACHP meetings; their perspective from a local and State government viewpoint is, therefore, missing from important policy discussions and votes.

ACHP might be better equipped to debate and address some of the important policy issues surrounding historic preservation, and provide appropriate advice to the President and Congress, if other parties were given a formal seat at the table and voting rights. The makeup of ACHP has been changed several times by legislative amendment since its inception in 1966 and has ranged in size from a low of 17 to a high of 29. Current ACHP membership stands at 20.

Options for addressing the issue:

Option A. Oversight of the system, and advice or comment on individual actions affecting historic properties, could be handled in some other way or shared with another entity. For example, an Administrative Law Judge or similar authority might be empowered to rule on appeals or citizen complaints, or ACHP on Environmental Quality could be mandated to rule on the adequacy of compliance with Section 106 when agencies use NEPA to meet their NHPA responsibilities.

Option B. By statute, Federal agencies could be directed to issue regulations to address the administrative and procedural requirements of Section 106, using their own internal dispute resolution and appeals processes to deal with conflicts or issues raised by members of the public. The existing mandate contained in Section 110(a)(2)(E) could be strengthened by adding a time limit for adoption of such procedures, and incentives could be provided to encourage adoption of effective procedures.

Option C. Oversight and administration would be retained by ACHP, but ACHP composition itself would be changed by statute to provide for organizational representation, rather than individual gubernatorial or mayoral membership, by substituting representatives of associations of government officials like the U.S. Conference of Mayors, the National Governors’ Association, or the National Association of Counties.

Recommendation: ACHP recommends that consideration be given to amending the statute in the future as outlined in both Option B and Option C, so that agencies act to internalize historic preservation review more effectively, and so ACHP also has the benefit of more active participation and advice from State and local government. ACHP does not recommend other statutory changes at the present time, and does not believe that the services of an Administrative Law Judge or other arbitration authority are warranted as the statute is currently implemented.

As of February 6, 1998, there were 2,247 designated National Historic Landmarks. There are an additional 212 nationally significant historical areas of the National Park System listed in the National Register. There were also 4,963 properties listed in the National Register for which “national” has been checked as the recommended level of significance by the SHPO or Federal agency submitting the nomination, out of a total listing of about 66,000 properties. These three categories of property together comprise approximately 11 percent of the total National Register listing. Individual states or Federal agencies would have to be contacted to compile a similar listing for eligible properties.

Based on the current draft Interior report to Congress on threatened and endangered landmarks, which is required by Section 8 of the General Authorities Act of 1970, the following statistics are worth noting:

• Six percent of NHLs “are either imminently threatened or already damaged by demolition, erosion, vandalism, damaging uses, or incompatible new construction or are severely deteriorated” (Priority 1).
• Ten percent are threatened or suffer from some damage (Priority 2).
• Eighty-four percent are in good condition (Priority 3).
• Since 1990, the percentage of Priority 1 landmarks has fluctuated between 5.5 and 6.5 percent.
• Approximately 12.9 percent of Priority 1 landmarks are owned by the Federal Government; about 24.5 percent are in multiple ownership (usually large districts), some of which have a Federal interest.

1. Issue: Protection and planning. Is the level of protection, or the degree of planning consideration, for historic properties of national significance appropriate under the current statutory and regulatory framework? Should the level of protection or the degree of planning consideration be modified, based on certain established criteria?

Discussion: Currently, Section 110(f) of NHPA provides the only specific statutory protection for historic properties of national significance, and then only for designated National Historic Landmarks. That section of the statute requires that “prior to the approval of any Federal undertaking which may directly and adversely affect any National Historic Landmark, the head of the responsible Federal agency shall, to the maximum extent possible, undertake such planning and actions as may be necessary to minimize harm to such landmark, and shall afford the Advisory Council on Historic Preservation a reasonable opportunity to comment on the undertaking.”

ACHP’s Section 106 regulations contain a section dealing with consideration of National Historic Landmarks. It provides for:

• Use of the Section 106 consultation process to address “planning and actions to minimize harm” under Section 110(f);
• invited participation by ACHP in any consultation to resolve adverse effects;
• notification to the Secretary of the Interior and an invitation to participate; and
• reporting outcomes to the head of the agency and the Secretary of the Interior.

It is critical that any special consideration given to National Historic Landmarks be done in the context of the broader policy and program objectives established in the NHPA. More reliable information is needed on the extent of significant threats by Federal action (or inaction) to historic properties at all levels of significance in order to reasonably judge whether additional protections for NHLs are warranted. At the same time, budgetary shifts to support increased attention to nationally significant properties should not be made if such shifts would lead to the concomitant loss or neglect of important properties at the State or local levels of significance.

Regardless of the outcome of this debate over preferential treatment, there is a need for better guidance to Federal agencies and to applicants for Federal assistance, licenses, and permits on the location and nature of National Historic Landmarks, as well as on more effective ways of dealing with them and other properties of national significance. There is also a need for better reporting of Federal stewardship and actions affecting NHLs and for follow-up to reports of both active and passive threats to such properties. However, there is a lack of staff and funding at the National Park Service and among the other Federal agencies.

Federal stewardship responsibilities for NHLs could be given greater emphasis, and Federal funding initiatives on public lands and facilities might give higher priority to expenditures for protective projects and programs as well as research. In addition, more targeted funding and assistance might be made available for nationally significant properties on non-federal lands. Advocates for local protections and locally-significant properties would need to have assurances that this would not diminish the funding and assistance available for their work and resources.

Options for addressing the issue:

Option A. The level of protection for historic properties of national significance would remain the same as currently provided for by statute. However, the National Park Service and ACHP would jointly pursue better means for more comprehensively collecting and reviewing information on threats to historic properties, including NHLs. If necessary, the law would be amended to require other Federal agency cooperation and participation in this mandated review and reporting. Additional funding or changing priorities in existing Federal agency spending would be considered to help ensure adequate description, protection, and enhancement of threatened or neglected NHLs under Federal jurisdiction and control.

Option B. By statute, either ACHP or the Secretary of the Interior would have to approve (and could disapprove) Federal and/or federally assisted undertakings having adverse effects on nationally significant properties.

Option C. If the level of protection were increased for certain situations, enhanced protection might be limited only to actions by Federal agencies on Federal lands or property. Federal agencies would be required by law to protect (and encouraged to enhance, where possible) nationally significant properties under their jurisdiction and control.

Option D. The language of Section 110(f) would be modified to establish a planning standard similar to that contained in Section 4(f) of the Department of Transportation Act (49 U.S.C. § 1653(f) ). This would allow Federal agencies to approve programs or projects adversely affecting historic properties of national significance only if they demonstrate that there was “no feasible and prudent alternative,” and that the program or project included “all possible planning to minimize harm” to the property.

Recommendation: ACHP recommends that consideration be given to amending the statute as provided in Option A, and to direct Federal agencies to give some priority consideration to their stewardship of National Historic Landmarks.

2. Issue: Identification and evaluation. Is the current process for identifying and evaluating historic properties of national significance adequate? Should it be modified, or should additional guidance be provided?

Discussion: The definition of “national significance” is codified in 36 CFR Part 65, “National Historic Landmarks Program.” There are currently several ways that potential NHLs are identified. The National Park Service, in cooperation with SHPOs, Federal agencies, and others, undertakes a limited number of theme studies annually on selected topics in American history. These studies provide a historic context for identifying the best examples of nationally significant properties that represent these themes.

Results and recommendations are reviewed twice yearly by the National Park System Advisory Board (established under the Historic Sites Act of 1935), through a special subcommittee on NHLs, and the Board then recommends NHL designations to the Secretary of the Interior through the Director of the National Park Service. In addition, individual nominations, and submissions to the National Register of Historic Places recommended as nationally significant, from States, Federal agencies, and individuals, are added to each year’s study list.

Unfortunately, due to staffing and funding constraints, there may be a lengthy waiting period for such properties to be examined by NPS staff, and many properties on the study list have yet to receive attention unless their designation is being strongly advocated by outside parties. If a private owner, or a majority of private owners of a potential landmark with multiple owners (such as a historic district), objects to NHL designation, then the Secretary cannot designate the property, but may find it “eligible” and therefore subject to Section 106.

Some property owners currently object to designation, in part because of the belief that NHL designation may mean an eventual attempt by the National Park Service or Congress to add their property to the National Park system. The involvement of the National Park System Advisory Board in NHL recommendations, as provided for under Section 3 of the Historic Sites Act of 1935, may enhance this suspicion, even though there is no such policy on the part of the National Park Service or the Secretary of the Interior.

Because some National Historic Landmarks were designated 20 or more years ago, when documentation and descriptive standards were somewhat less rigorous, there are NHLs that have presented planning difficulties with indistinct boundaries and other problems. Particularly in large historic or archeological districts, this has led to problems when Federal or federally assisted projects have affected these properties, and has increased the time and costs of field studies and other research connected with planning and mitigation work.

Options for addressing the issue:

Option A. The process of identifying and evaluating historic properties of potential national significance would remain the same as currently provided for by statute, but additional incentives or encouragement for identifying and evaluating such properties before specific construction or other projects are under development would be authorized for States, Federal agencies, and others in the form of targeted grants programs, as well as for research and development of historic theme studies and resource guides. The process of identifying and evaluating potential NHLs on certain public lands subject to more intensive uses or development could be accelerated as a matter of policy.

Option B. The process for designation would be modified from the current practice of relying on the National Park System Advisory Board to make recommendations to the Secretary, and the SHPOs (with their State Review Boards), Tribal Historic Preservation Officers, and FPOs given an enhanced role in the process. Such a change might require an amendment to the Historic Sites Act of 1935.

Option C. The process for determining priorities for conducting special NHL studies and for designating specific properties or groups of properties would be clarified in the law.

Option D. The law would be amended to authorize additional NPS funding for its training and technical assistance to NHL stewards, including other Federal agencies, on identifying, evaluating, protecting, and enhancing NHLs and other nationally significant properties.

Option E. The law would be amended to authorize additional NPS funding for accelerating studies of potential National Historic Landmarks, conduct boundary adjustment studies, and provide additional staff support to the National Park System Advisory Board for oversight and review of potential NHL designations.

Recommendation: ACHP recommends that all of the above options be given serious consideration in the future to improve the consideration of National Historic Landmarks and other nationally significant properties. At a minimum, Option A should be pursued to improve the timeliness and completeness of Federal planning activities as they relate to actions affecting nationally significant properties.

Part V: Summary and Conclusions

ACHP’s assessment of these important issues has resulted in several summary findings related to Section 106 of the National Historic Preservation Act. ACHP also offers a number of specific recommendations for improving the implementation of Section 106 in the future.

Findings

1. The fundamental elements of the current Section 106 process are sound and do not require radical change.
2. The concept of consultation leading to execution of binding Memoranda of Agreement has strong support and is a vital component of the Section 106 review process that should be sustained.
3. There is considerable flexibility built into both the existing and proposed regulations for implementing Section 106, and there should continue to be one set of uniform, government-wide procedures. Through its regulatory reform initiative, ACHP has explored alternatives available within the Section 106 statutory framework. The concept of “flexible application” in the administration of the regulation, and mechanisms in place for agencies to develop their own alternative ways to implement Section 106, amply provide for tailoring and streamlining the process.
4. Further operational improvements could be realized through development of implementing guidance, as well as adequate staffing and funding that is made available for historic preservation programs.

Recommendations

1. Alternatives for future promulgation and oversight of regulations for implementation of Section 106 of the National Historic Preservation Act.
   • Responsibility: For Federal programs carried out by State, local, or tribal governments, consideration should be given to amending the statute in the future to allow Federal agencies to delegate their Section 106 responsibilities to approved State, local, or tribal programs as part of an overall program delegation or approval. ACHP should be involved in reviewing such program delegations and commenting on the Federal agency approval. The rights and responsibilities of applicants should continue to be dealt with in agency-specific guidance and, where warranted by the program, in alternate procedures; no statutory change for that purpose is warranted.

   • Substitution: Considerable flexibility and incentives exist at the present time to promote the integration of historic preservation requirements with other planning approval, and resource protection requirements. However, the success or failure of attempts to coordinate the requirements of Section 106 with procedures for the National Environmental Policy Act as well as similar statutes should be monitored, and ACHP should report on this issue to the President and the Congress within three years of the issuance of its revised regulations. This should allow sufficient time to measure the success of coordination under revised Section 106 regulations, and to consider any possible recommendations for statutory changes.

   • Oversight: Consideration should be given to amending the National Historic Preservation Act so that agencies act to internalize historic preservation review more effectively. ACHP also recommends that consideration be given to adjusting the composition of ACHP to provide for organizational representation by the U.S. Conference of Mayors, the National Governors’ Association, and/or the National Association of Counties, rather than by individual gubernatorial or mayoral membership as presently called for. This would give ACHP the benefit of more active participation and advice from State and local government.

   
   

2. Alternatives to the existing review process for properties of national significance.
   • Protection and planning: Consideration should be given to amending the National Historic Preservation Act to require Federal agency cooperation and participation in mandated National Park Service and ACHP reporting and review of threats to historic properties, including National Historic Landmarks. Additional funding or changing priorities in existing Federal agency spending should be considered to help ensure adequate description, protection, and enhancement of threatened or neglected National Historic Landmarks under Federal agency jurisdiction and control.

   • Identification and evaluation: A variety of options should be given serious thought in the future to improve the consideration of National Historic Landmarks and other nationally significant properties. Improvements are needed in the timeliness and completeness of Federal planning activities as they relate to actions affecting nationally significant properties. At a minimum, additional incentives or encouragement for identifying and evaluating such properties before specific construction or other projects are under development should be authorized for States, Federal agencies, and others in the form of targeted grants programs, as well as for research and development of historic theme studies and resource guides. The process of identifying and evaluating potential National Historic Landmarks on certain public lands subject to more intensive uses or development should be accelerated as a matter of national policy.

In summary, the basic implementation of the Section 106 process is sound, but it certainly merits continuing improvement. Improvements underway, or contemplated in the recommendations above, should result in more thoughtful and efficient decisionmaking and better protection of significant historic properties. Of the thousands of projects and programs considered under Section 106 of the National Historic Preservation Act each year, affecting numerous historic properties at the National, State, or local level of significance, a relatively small number are problematic or controversial. These should continue to receive an appropriate level of attention and public scrutiny, even as we work to improve the planning and review process to forestall or minimize potential disputes of this nature that may arise in the future.

At the same time, ACHP is committed to ensuring that program and operational enhancements can and will continue to be developed that promote the effectiveness, consistency, and coordination of other public policies and programs with the purposes articulated by Congress so eloquently in the National Historic Preservation Act.

FOOTNOTES********************************

¹It is, of course, understood that should Congress, ACHP, the National Park Service, or other Executive Branch agencies determine that any of the findings or recommendations contained in this report are worth pursuit in the future, public review and comment, as well as consultation with affected parties, would need to be sought for any new proposal for legislative, regulatory, or policy action.

²“Undertaking” means a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including: (a) those carried out by or on behalf of the agency; (b) those carried out with Federal financial assistance; (c) those requiring a Federal permit, license, or approval; and (d) those subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency (16 U.S.C. 470w).

³“National Historic Landmarks” are nationally significant properties formally designated as such by the Secretary of the Interior, in accordance with the Historic Sites Act of 1935 (16 U.S.C. §§ 461-467).

⁴Other portions of NHPA that underscore ACHP’s approach to its administration of Section 106 include: Section 110(a)(2)(E) directing that agency procedures for Section 106 compliance be consistent with ACHP regulations, and provide for development and implementation of agreements in consultation with others; Section 110(k), regarding consultation on anticipatory demolition by applicants for Federal assistance; Section 110(l), which directs agency heads to document decisions made pursuant to Section 106 in the absence of an agreement with ACHP; Section 111, which calls for agency consultation with ACHP on establishment and implementation of alternatives for historic properties, including adaptive use, leases, exchanges, or management contracts; and Section 205(b), which provides for ACHP’s General Counsel to represent ACHP in courts of law for enforcement of agreements with Federal agencies.

⁵This is a small percentage of the total estimated annual number of 90,000 projects initially reviewed by States, the vast majority of which do not affect historic properties and are not subject to further investigation or review.

⁶A far more complete and detailed discussion of historic preservation case law and findings of the courts related to interpretation of Section 106 may be found in Federal Historic Preservation Case Law, 1966-1996, Advisory Council on Historic Preservation, 1996.

Updated April 26, 2002

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