Under Section 106 of the National Historic Preservation Act and its regulations (specifically 36 CFR 800.14), a “Programmatic Agreement” or PA may be negotiated by a federal agency with a State or Tribal Historic Preservation Officer, group of such officers, or the National Conference of State Historic Preservation Officers (hereafter “SHPO” for short), the Advisory Council on Historic Preservation (ACHP) and (rarely) other parties to establish an “alternative” means of complying with the law – alternative, that is, to the standard process set forth in the regulations (36 CFR 800.3-6). PAs can be very useful tools for adjusting the regulatory process to allow for special needs and situations. They are inherently problematical, however, because they effectively replace the standard process, creating “special deals” for the agencies that execute them. This can make life difficult particularly for citizens who want to use Section 106 to protect something. Such a citizen naturally looks at the regulations for direction, but the relevant agency is doing something quite different; it’s following its PA – as it interprets it. The citizen is left floundering, having to understand not “just” the regulations, but whatever PA or PAs may apply to the project that’s of concern.
It’s also been my observation that when people start drafting a PA, one or both of two things tend to happen. They often fall into regurgitating the standard process, usually in badly masticated form, taking many pages of convoluted prose to say they’re going to do more or less the same thing they’d do if they didn’t have a PA. And they get wordy, blathering on for page after page, creating documents that are impenetrable to the ordinarily educated English-language reader. Oh yes, a third thing – they usually minimize any provision for public participation in review.
I’ve recently had occasion to review several PAs – one being negotiated in Guam and the Northern Marianas on redeployment of military forces, one in the same area covering transportation projects, a “prototype” PA developed by the ACHP for Department of Energy weatherization projects, and another by the Federal Highway Administration covering all highway projects in a western state. Each was about 20 to 30 pages long, single-spaced, 10 or 11 point font. I found that every one of them had the above problems, and moreover that they actually didn’t set out to do very much.
For the most part, all the PAs were about:
1. Delegating certain responsibilities from the federal agency to a recipient of agency assistance;
2. Excluding certain classes of action from standard forms of review;
3. How the agency and the SHPO would interact during project review, and
4. How archaeological sites would be identified.
Now, items 1 and 2 probably require a PA, but it doesn't have to be very complicated PA. For item 1 you just need to say: “Federal Agency X may delegate (or hereby delegates) responsibilities A, B, and C to recipient Z,” subject perhaps to specified conditions. For item 2 you list the action classes, rationalize their exclusion from standard review, and specify any review they WILL get.
Items 3 and 4 can in most cases be taken care of without doing a PA, as long as the agreeing parties don’t try to change anything in the regulations. Regarding item 3: if an agency and SHPO want to agree that they’ll exchange red, green, and purple formletters with 22-day turns-around, they can simply exchange memos to that effect and go to it – as long as they don’t thereby close out opportunities for other parties to have their say, or otherwise alter the overall requirements of the regulations. As for item 4, it’s up to the agency, in consultation with the SHPO and others, to decide what constitutes a “reasonable and good faith effort” to identify archaeological sites and all other kinds of historic properties; there’s no need to negotiate a PA.
So what’s wrong with doing a PA to accomplish these modest purposes, if you have nothing else to do and you’re a glutton for punishment? What’s wrong is that a PA is a nuclear weapon; when you touch one off, it has a lot of fallout. It effectively replaces the standard process – it makes it go away (unless you carefully specify that it doesn’t, and how it doesn’t, and I’ve never seen a PA do that). It forces anyone who wants to participate in Section 106 review to figure out whether the PA applies to his or her concerns, and if so how. This is particularly a problem for members of the public, who can’t be expected to master the eccentricities of even the standard process, let alone an esoteric alternative. And all these alternative processes ARE esoteric; in some places they more or less spit the regulations back at the reader, but sometimes with tweaks of various kinds; in other cases they add new twists to the standard process. And who WILL know how the alternative works? Well, maybe nobody, but if anyone does it will be the federal agency’s lawyers and “cultural resources” professionals, which makes them the experts, gives them the power to tell the interested public to screw off – assuming a member of the public sufficiently figures out the system to even ask a question.
So I contacted the ACHP, and asked if this concerned them at all, and if maybe they didn’t think it would be a good idea to suggest to agencies and SHPOs that they sort of cool it with the PAs – develop them only when they’re really needed, and keep them simple. I was assured that my views would be taken into consideration. No argument, no discourse, and to the extent any rationale was offered for accepting the PAs I was criticizing, it was simply that these are the kinds of agreements the ACHP routinely receives from agencies and SHPOs.
We accept them – and indeed regurgitate them as prototypes – because we receive them, and God forbid we should consider offering any contrary advice (what, advice? From the Advisory Council?). If the agencies and SHPOs want to do it this way, baby, that’s the way it’s gotta be done, and that’s how we’re going to demonstrate our leadership in historic preservation.
The ACHP will soon have a new chairman (Thank goodness it doesn’t take Senate confirmation). One might hope that the new chair would promote some responsibility, but it’s unlikely. The ACHP’s leadership has been disenthralled with Section 106 review since its original executive director retired over twenty years ago, and it’s unlikely that anyone appointed as chairman will even recognize that the system has problems, let alone do anything to fix them. There are many things to do that give more excuse for puffing out one’s chest, like giving out “Preserve America” grants. So the ACHP, I suspect, will remain aloof, while the SHPOs and agencies earnestly go on negotiating massive agreements that focus greater and greater attention on less and less, and deprive members of the public of the opportunity to get attention paid to places they hold dear. Eventually the whole edifice will collapse, but alas, I don’t expect to live to see it.