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Wednesday, August 27, 2008

What The Hell is Section 110?

On the “ReNEPA” discussion forum maintained by the Federal Highway Administration (FHWA), there’s recently been a discussion of Section 110 of the National Historic Preservation Act (NHPA) that revealed a (to me) remarkable amount of confusion about what this piece of the law says. Having been very much involved in the 1992 amendments to NHPA that gave us Section 110 in more or less its present form, I thought it might be useful, or at least satisfying to me, to provide a complete copy of the section with my annotations. Here it is:

Section 110
(a) (1) The heads of all Federal agencies shall assume responsibility for the preservation of historic properties which are owned or controlled by such agency. Prior to acquiring, constructing, or leasing buildings for purposes of carrying out agency responsibilities, each Federal agency shall use, to the maximum extent feasible, historic properties available to the agency in accordance with Executive Order No. 13006, issued May 21, 1996 (61 Fed. Reg. 26071). Each agency shall undertake, consistent with the preservation of such properties and the mission of the agency and the professional standards established pursuant to section 101(g) of this Act, any preservation, as may be necessary to carry out this section.

Annotation: In other words, federal agencies are responsible for historic properties they own or control. That’s FEDERAL AGENCIES, not just FEDERAL LAND MANAGING AGENCIES, as some people seem to believe. And it’s HISTORIC PROPERTIES – in other words, districts, sites, buildings, structures and objects included in or eligible for the National Register, not just PROPERTIES THAT HAVE BEEN FORMALLY DETERMINED TO BE HISTORICALLY SIGNIFICANT THROUGH NOMINATION OR ELIGIBILITY DETERMINATION, as some seem to believe.
Agencies are supposed to give priority to “using” such properties in appropriate ways, following a rather complex prioritizing system established by Executive order 13006, and they’re to “preserve” such properties – but understand that the NHPA definition of “preservation” is a very broad one; it DOESN’T mean “preservation” as outlined in the Secretary of the Interior’s Standards for Historic Preservation Projects.

(2) Each Federal agency shall establish (unless exempted pursuant to Section 214) of this Act, in consultation with the Secretary, a preservation program for the identification, evaluation, and nomination to the National Register of Historic Places, and protection of historic properties. Such program shall ensure —
(A) that historic properties under the jurisdiction or control of the agency, are identified, evaluated, and nominated to the National Register;

Annotation: Again, each federal agency (not just each land managing agency) is required to have a historic preservation program. There are guidelines for such programs at . Note that the “nomination” part of this subsection does not obligate agencies to nominate everything they have anything to do with; in fact, a requirement to nominate “all” historic properties was removed by the 1992 amendments at the very reasonable (I think) request of agencies like BLM and the Forest Service. So it’s perfectly OK for an agency to do as the U.S. Army has done, and prescribe conditions under which it will and won’t nominate properties.

(B) that such properties under the jurisdiction or control of the agency as are listed in or may be eligible for the National Register are managed and maintained in a way that considers the preservation of their historic, archaeological, architectural, and cultural values in compliance with section 106 of this Act and gives special consideration to the preservation of such values in the case of properties designated as having National significance;

Annotation: This subsection establishes the affirmative responsibility of federal agencies (not just land management agencies) to manage historic properties they own or control in a responsible way, though it doesn’t rigidly require their physical preservation.

(C) that the preservation of properties not under the jurisdiction or control of the agency, but subject to be potentially affected by agency actions are given full consideration in planning;

Annotation: If the agency’s going to do, assist, or permit something that may affect a historic property it DOESN’T own or control, the agency has an affirmative responsibility to make sure that preservation is “given full consideration.” This obviously underscores agency 106 responsibilities.

(D) that the agency's preservation-related activities are carried out in consultation with other Federal, State, and local agencies, Indian tribes, Native Hawaiian organizations carrying out historic preservation planning activities, and with the private sector; and

Annotation: This is general direction, again to ALL federal agencies (not just land managers) to consult with others in carrying out their activities. The definition of “consultation” in the guidelines referred to above is the same as in the Section 106 regulations, though more fulsomely detailed.

(E) that the agency's procedures for compliance with section 106 of this Act —
(i) are consistent with regulations issued by the Council pursuant to section 211 of this Act;
(ii) provide a process for the identification and evaluation of historic properties for listing in the National Register and 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; and
(iii) provide for the disposition of Native American cultural items from Federal or tribal land in a manner consistent with section 3(c) of the Native American Grave Protection and Repatriation Act (25 U.S.C. 3002(c)).

Annotation: Agency programs must address Section 106 responsibilities, and do so in a manner consistent with the Advisory Council’s regulations. Programs must provide for consultation and agreements. Agency programs must be consistent with NAGPRA.

(b) Each Federal agency shall initiate measures to assure that where, as a result of Federal action or assistance carried out by such agency, an historic property is to be substantially altered or demolished, timely steps are taken to make or have made appropriate records, and that such records then be deposited, in accordance with section 101(a) of this Act, in the Library of Congress or with such other appropriate agency as may be designated by the Secretary, for future use and reference.

Annotation: If a federal agency (not just a land management agency) will do something or help anybody else do something that will muck up a historic property, the agency must AT LEAST provide for the property to be documented. The Secretary’s standards and guidelines indicate that the consulting parties under Section 106 are to decide what kind of documentation will be done; it can be whatever sort of documentation (architectural, archaeological, oral historical, etc.) the parties agree to. Nothing in this subsection relieve agencies of their responsibility to consider doing things BESIDES documentation, or of their broad “preservation” responsibilities.

(c) The head of each Federal agency shall, unless exempted under section 214 of this Act, designate a qualified official to be known as the agency's "preservation officer" who shall be responsible for coordinating that agency's activities under this Act. Each Preservation Officer may, in order to be considered qualified, satisfactorily complete an appropriate training program established by the Secretary under section 101(h) of this Act.

Annotation: Each agency has to have an FPO, who’s supposed to be “qualified.”

(a) Consistent with the agency's mission and mandates, all Federal agencies shall carry out agency programs and projects (including those under which any Federal assistance is provided or any Federal license, permit, or other approval is required) in accordance with the purposes of this Act and, give consideration to programs and projects which will further the purposes of this Act.

Annotation: I actually think this is an important provision. All federal agencies (That is, ALL federal agencies) are required to try to make their programs and actions consistent with the purposes of NHPA, and to advance those purposes. Nobody pays any more attention to this than they do to Section 101 of NEPA, which is a major reason that compliance with both Section 106 and NEPA is in the shape it’s in. This subsection SHOULD be understood to (among other things) set a standard for agreements under Section 106.

(e) The Secretary shall review and approve the plans of transferees of surplus federally owned historic properties not later than ninety days after his receipt of such plans to ensure that the prehistorical, historical, architectural, or culturally significant values will be preserved or enhanced.

Annotation: A curious provision, mostly honored in the breach, that predated the 1992 amendments. If an agency has surplus property that it’s transferring, and has the recipient prepare a plan for its preservation, and submits it to the Secretary of the Interior for review, the Secretary will review it within 90 days.

(f) 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.

Annotation: If you’re going to muck up an NHL, you’re supposed to do what’s necessary to minimize the up-mucking, and consult with the Advisory Council. This provision has been built into the Council’s regulations.

(g) Each Federal agency may include the costs of preservation activities of such agency under this Act as eligible project costs in all undertakings of such agency or assisted by such agency. The eligible project costs may also include amounts paid by a Federal agency to any State to be used in carrying out such preservation responsibilities of the Federal agency under this Act, and reasonable costs may be charged to Federal licensees and permittees as a condition to the issuance of such license or permit.

Annotation: Agencies can budget for preservation, and charge others for it. In the early days of NHPA, there were agencies that insisted they lacked this authority; Section 110(g) disposed of that excuse.

(h) The Secretary shall establish an annual preservation awards program under which he may make monetary awards in amounts not to exceed $1,000 and provide citations for special achievements to officers and employees of Federal, State, and certified local governments in recognition of their outstanding contributions to the preservation of historic resources. Such program may include the issuance of annual awards by the President of the United States to any citizen of the United States recommended for such award by the Secretary.

Annotation: The Secretary will give prizes for preservation. Nice.

(i) Nothing in this Act shall be construed to require the preparation of an environmental impact statement where such a statement would not otherwise be required under the National Environmental Policy Act of 1969 [42 U.S.C. 4321 et seq.], and nothing is this Act shall be construed to provide any exemption from any requirement respecting the preparation of such a statement under such Act.

Annotation: This does NOT relieve agencies of the responsibility to prepare EISs where they may have significant impacts on the quality of the human environment (the EIS trigger under NEPA), but it does say that NHPA does not automatically require an EIS if you’re going to muck up a historic property.

(j) The Secretary shall promulgate regulations under which the requirements of this section may be waived in whole or in part in the event of a major natural disaster or an imminent threat to the national security.

Annotation: Waiver regulations for emergencies, etc.

(k) Each Federal agency shall ensure that the agency will not grant a loan, loan guarantee, permit, license, or other assistance to an applicant who, with intent to avoid the requirements of section 106 of this Act, has intentionally significantly adversely affected a historic property to which the grant would relate, or having legal power to prevent it, allowed such significant adverse effect to occur, unless the agency, after consultation with the Council, determines that circumstances justify granting such assistance despite the adverse effect created or permitted by the applicant.

Annotation: If I’m looking for a federal grant to put in, say, a hog farm, and I decide to simplify my life by bulldozing away that nasty old Indian cemetery on the site before I put in my application, the federal agency isn’t supposed to give me the grant, unless they find, in consultation with the Advisory Council, that there’s some really good reason to.

(l) With respect to any undertaking subject to section 106 of this Act which adversely affects any property included in or eligible for inclusion in the National Register, and for which a Federal agency has not entered into an agreement pursuant to regulations issued by the Council, the head of such agency shall document any decision made pursuant to section 106 of this Act. The head of such agency may not delegate his or her responsibilities pursuant to such section. Where a section 106 of this Act memorandum of agreement has been executed with respect to an undertaking, such memorandum shall govern the undertaking and all of its parts.

Annotation: Where there’s no MOA under Section 106 on a project with adverse effects, and the Council accordingly comments to the agency head, the agency head has to consider the comment and document his or her response. He or she can’t delegate this responsibility down the food chain. This is designed to encourage agencies to negotiate MOAs, which the subsection underscores as documents that are binding on (shall govern) the relevant undertaking.

There’s an abiding myth that Section 110 speaks only to land managing agencies; in fact, only a handful of its subsections are limited to agencies with “jurisdiction or control” over historic properties. There also seems to be a myth that Section 110 is mostly about properties already on or determined eligible for the National Register; that’s absolutely not true. “Historic property” under Section 110 means the same thing it means everywhere else in NHPA – anyplace that’s included in or eligible for the Register, whether anybody’s determined it to be so or not.