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Saturday, May 28, 2011

On Sweating the Small Stuff

I’m helping an agency client plod along toward the end (I hope) of a long and complicated consultation regarding a new construction project. The other consulting parties have quite justly criticized the responsible agency for tardiness in initiating review, too late for the parties to influence key siting decisions. But now the same parties are wringing their hands over minor issues that can be resolved only in the process of final design. “Oh dear oh dear,” they say, “maybe we shouldn’t conclude a Memorandum of Agreement (MOA) until we’ve reviewed much more detailed plans and specifications.”

People, you can’t have it both ways. If you’re going to insist (as you should, and as the law requires), that agencies initiate and pursue Section 106 review early in planning, you cannot simultaneously say that they have to deliver to their consulting partners fully developed plans and specifications addressing every imaginable jot and twiddle.

Sure, the small stuff needs to be resolved, and the devil does lie in the details. But the way to handle this – or at least A way to handle it – is to include “process” stipulations in the MOA calling out what you think the issues might be and prescribing ways to resolve any problems they present. Usually this will involve review of plans and specifications by all or some of the consulting parties (or by others) and a process for addressing any concerns raised.

Such provisions are almost automatically included in a lot of MOAs (including the one I’m working on), but perhaps because their inclusion has become so automatic, people seem to have forgotten what they’re for. What they’re for is to allow us to address projects under Section 106 early in planning, establish agreement about generally how a project will be carried out, and then make adjustments as necessary to resolve relatively minor design issues as detailed plans and specifications are developed.

And no, inclusion of “process” stipulations does not automatically force an agency to negotiate a Programmatic Agreement (PA). It’s perfectly OK to include such stips in an MOA. If your agreement begins to become composed only of “process” stips, then you probably do need to think about a PA, but there are innumerable perfectly good MOAs that include “process” stips, and the regulations provide no bar to their inclusion.

Thursday, May 19, 2011

Knock It Down Quick or Let It Rot: The Choice is Yours

Continuing with my book-in-progress on “How to Destroy Historic Landmarks” –

Here are a couple of tips that apply mostly to the demolition of old buildings and structures, particularly those owned or controlled by federal agencies in the United States.

Knock it Down Quick

In the United States, most places regarded as “historic” have been around for at least fifty years, and other countries tend to demand even greater antiquity. The U.S. rule is that a place can’t be eligible for the National Register of Historic Places if it has “achieved significance” only within the last fifty years – unless it is of “exceptional” significance.

This rule presents you with an obvious opportunity if you have a building you want to get rid of that is, say, forty-five years old. If you plan to knock it down before it turns fifty, you’re relatively unlikely to run into problems with laws like the National Historic Preservation Act.

I say “relatively unlikely” because there is that pesky language in the National Register regulations (36 CFR 60) about “exceptional significance.” The language is there to handle things like the 9/11/01 crash site of United Airlines Flight 93, which went into the history books the moment it hit the ground (or before), and to keep the Register open to truly astounding pieces of modern (or postmodern) architecture. But the language is open to a lot of interpretation, and if someone really doesn’t like your project they may find ways to argue – and convince authorities like the Keeper of the Register – that your 40-year-old dairy barn really IS exceptionally significant in the history of milking-machine development.

If your 40- or 45-year-old building doesn’t seem to have anything super-special about it, though, and if opposition to your project hasn’t yet risen to a fever pitch, you’re probably well advised to knock the building down as fast as you can.

Let it Rot

There’s also a strategy that often works quite well at the other end of the spectrum, so to speak. If you’re confronted with a building that’s pretty old – not so ancient that its antiquity alone makes people treasure it, but pretty venerable – and you can neglect it long enough, and badly enough, it can “lose integrity,” in National Register-speak, and no longer be eligible for the Register. Or even if it doesn’t technically lose integrity, it may just become so obviously beyond repair that no one will object too loudly to your proposal to take it down.

Note, though, that if you’re a federal agency official, you’re not supposed to let old buildings you control go to hell. This practice – politely called “demolition by neglect” by preservation people – is pretty clearly forbidden by Section 110(a)(1) of NHPA, which says:

The heads of all Federal agencies shall assume responsibility for the preservation of historic properties which are owned or controlled by such agency. … 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 10 1(g) of this Act, any preservation, as may be necessary to carry out this section.

In other words, you’re supposed to – hell, you’re required by law to – take care of your historic properties, including old buildings that may be eligible for the Register. But there are ways to get around this troublesome legality.

Neglecting the building may not have started on your watch; it may have been going on for years, or decades. So who’s to blame? Gee, it’s too bad, but now the roof’s caved in, or the pilings have rotted, and it just wouldn’t be cost-effective to try to fix it up. The preservation authorities may scold you, bemoan the situation, or even insist that you give lip service to considering alternatives or doing better next time, but in the end they’ll probably sigh and sign off on your demolition.

Or maybe you didn’t know the building was historic. Nobody had come along and put a brass plaque on it. It’s not on the National Register (or if it is, nobody told you it was). You thought it was just a rotten old building. In this case you’ll probably get beaten up a bit for failing to consider the building’s possible historicity or architectural merit, and you may have to agree to something like an installation-wide survey to establish what else under your control is eligible for the Register. But again, you’ll probably get agreement in the end; there’s a strong bias among SHPOs and at the ACHP toward reaching agreement, so ignorance of the law is pretty regularly taken as an excuse for non-compliance.

Or maybe retaining the building is inconsistent with your agency’s mission. You have to defend the country, or take care of the sick, or clean up the environment; you can’t be troubled to take care of an old building you don’t need, and whose maintenance is costing you money. This one’s actually pretty weak, because even if it’s true, it’s sort of irrelevant. If you really can’t perform your mission with that stupid old building standing around, then NHPA Section 106 gives you a way to deal with it – you propose to demolish it, and consult with the SHPO and other interested parties about whether and how to do it. And in the end, you get to make the call. There's also a provision at NHPA Section 111 directing that you make unused historic properties available for use by others. But historic preservation people, for all their pomposity and pretensions, tend to cave when confronted with agency missions that have a lot of public (or modestly high-level political) support. Or if they don’t exactly cave, they fall into chest-thumping about historical and architectural significance and how it transcends all other considerations, or into pettifogging proceduralism, which makes them look like irresponsible fools and when all is said and done helps you get your way.

So if you’re a federal official, and you’re responsible for an old building that you can’t use and don’t want to keep, it may be an effective strategy to avert your eyes, defer maintenance, and let the thing deteriorate for a few years before proposing to knock it down. You may even hasten its deterioration by making sure it’s open to infestation by animals, that it’s deprived of climate controls, exposed to the elements, left unprotected from flooding or rising damp, and simply that nothing is done to maintain it. You probably ought not to document decisions about such actions and inactions; such documents could be embarrassing if they come to light when you propose to demolish the sad old eyesore.

Tuesday, May 03, 2011

The Nomination Noose

The following is another segment for my book-in-progress, “How to Destroy Historic Landmarks.” Matt Bandy has suggested that I title it something more innocuous, like “A Project Manager’s Guide to Historic Preservation,” but I don’t think that title would sell as well, and besides would involve taking my tongue out of my cheek – an anatomical impossibility.

The Nomination Noose


One device you can sometimes employ to trip up NIMBYs or Tribes (NOTs) in their efforts to get in the way of your project is to encourage them to nominate the place they’re concerned about to the National Register of Historic Places. This may seem counterintuitive, but I’ve seen it work on several occasions.

The Nomination Noose is a strategy that’s specific to the United States, where Section 106 of the National Historic Preservation Act (NHPA) requires federal agencies to take into account the effects of their actions (like approving your project) on places “included in or eligible for” the National Register. Until the mid-1970s, the law required only consideration of places “included in” the Register, which meant federal agencies could ignore impacts on historic places until somebody (like a NOT) got around to doing the studies and paperwork to nominate them to the Register. This really didn’t make for very sensible planning, so President Nixon issued an executive order (#11593) in 1971 directing agencies to treat “eligible” properties – that is, places that meet the criteria for inclusion in the Register – just as though they were listed. This provision was subsequently adopted by Congress as an amendment to the NHPA. So under current law, it’s up to the federal agency whose funding or permits you seek to figure out what’s eligible for the Register, and if it’s eligible, to consider how it will be affected and what to do about it, all in consultation with the State Historic Preservation Officer (SHPO) and other interested parties.

But not every NOT knows that, and a lot of federal agencies are pretty foggy on the concept themselves. And the National Park Service (NPS), which maintains the National Register and holds quite religiously to a belief that everybody should nominate whatever they possibly can, can be counted upon to encourage nomination and express a degree of scorn for places that are only found eligible for the Register.

So, sometimes you can con the NOTs into nominating the places they’re concerned about to the Register, instead of just insisting that they’re eligible.

How can this help you? Well, it may not; they may succeed, and then you’re in roughly the same place you’d be if your overseeing federal agency and SHPO just agreed to treat the place as eligible. But there’s a pretty good chance that they won’t succeed (regardless of their place's actual significance), and by initiating the nomination process they effectively take the pressure off you to worry about the matter, unless and until they succeed in getting it on the Register.

How is this? Recall that it’s the federal agency’s responsibility to consider impacts on eligible, as well as listed, properties. If a property’s not listed, the federal agency has to figure out whether it’s eligible, and the agency will most likely require you to give it the information it needs in order to do so – which usually means doing surveys, studies, and consultations of various kinds. And if you have a NOT out there jumping up and down insisting that its place is eligible, the path of least resistance for the agency and SHPO is usually to say “OK, it’s eligible,” and start looking at what damage your project will do to it. The burden of proof falls on you to show that it’s not eligible – though, as I’ve argued above, it’s usually wiser simply to accept eligibility and get on with it. But when the NOT (or anyone else) sets out to nominate a property, they take upon themselves the burden of proving it to be historically, archaeologically, architecturally, or culturally significant. They are now under the gun, not you.

And while an agency and SHPO can agree to treat a place as eligible for the Register based on whatever data they decide are sufficient, the nomination process is a highly structured, complicated paperwork exercise, that routinely costs thousands of dollars to complete. Nomination forms must be filled out just so, with appended maps and photographs and supporting documentation. Boundaries must be precisely delineated, sources cited in proper bibliographic fashion, and so on. Once complete, the forms must be reviewed, usually by the SHPO’s State Review Board, and then – if they pass muster – sent on to the Keeper of the National Register in NPS for a final blessing. The Review Board – made up of professional historians, architectural historians and archaeologists, for the most part, who may know and care nothing about the planning processes to which their decisions relate, but who tend to be pretty jealous of their own expert credentials, can be counted on to look on each nomination with a degree of skepticism, as can the SHPO staff members who organize the material for the Board's consideration.

So the NOT winds up spending a lot of time and treasure fighting its way through the nomination process, while you get on with planning your project. The time and treasure the NOT’s spending on nomination is, of course, time and treasure it’s not (sic) spending fighting your project. The NOT’s guns are directed at the SHPO and maybe NPS, not at you or the responsible federal agency; you can both essentially wash your hands of the matter until NPS awards the nomination its thumbs up or thumbs down.

Just to put frosting on the cake, while a place can be determined eligible for the Register regardless of how its owner feels about it (because the determination is simply a finding of fact, like noting that the ground is wet or the tree is a maple), under NHPA a property cannot be placed on the Register if its owner, or a majority of owners where the property has more than one, formally objects to its placement. So if you own the property, or if you can line up a majority of its owners and prevail on them to object (This doesn’t usually cost much), you can block the NOT’s nomination. The place can still be determined eligible, which puts you back into Section 106 review, but you will have caused the NOT to waste a lot of time and money getting back to where things were before the nomination process ever began.  Frustration is likely to set in – to say nothing of confusion – and the NOT may simply give up. Moreover, since the average member of the public has, to say the least, a rather thin understanding of Section 106 review, a failed nomination is widely taken to mean that the place is not significant, so it can turn public and official opinion against the NOT.

So to summarize: if you can get a NOT to stick its head in the nomination noose, the NOT may very well hang itself. Or if not that, it will at least tangle itself up and waste time and money that it might otherwise spend fighting your project. BUT the NOT’s flailing about in the nomination process does introduce an element of uncertainty into your own planning – it’s not impossible that at the eleventh hour the place will get included in the Register, and then you’re back to square one. On balance I don’t think it’s a good strategy, but it’s one you can use if you’re so inclined.

Sunday, May 01, 2011

On the Efficient Destruction of Historic Places: Don’t Question Significance

Preface:

In the interstices of my somewhat fragmented writing life, I’m working on a book that no publisher has agreed to touch, called something like “How To Destroy Historic Landmarks.” I figure that since I’ve written books for people who want to SAVE such places, it’s only fair that I offer something to the other side. This is how the manuscript begins:

You have a plan. Maybe for a new industrial complex, a wind farm, a solar plant. Maybe a prison, or a nuclear waste processing facility, a residential development, a pig farm. Maybe a logging operation, an apartment building, a natural gas pipeline, a railroad.

You start assembling the land for your project, and the financing. Maybe some of the land is owned, or controlled somehow, by the United States government. Or maybe you need some federal financing, or federally-guaranteed financing. Or maybe you need a federal permit of some kind. Or a permit from a local or state government. Or maybe you don’t, or maybe you don’t know. Or maybe your plan involves operations in a country other than the U.S., in which case – well, we’ll get to that.

You engage an architect-engineer firm to help you develop your plan. When you negotiate the A/E’s scope of work, one thing they say is that they’ll need to do an environmental impact assessment (EIA) – though they may call it an “environmental study,” or an “environmental assessment.” They may say you’ll need an “environmental site assessment,” and that’s a whole different thing; we’ll get to that, too.


But what’s this EIA thing? It’s a study, they tell you, designed to make sure your project won’t have any significant impacts on the environment. It’s required by law.


“Oh,” you say, looking at your lawyer, and she nods.


“So what’s to study?”


“Oh,” the A/E says, “endangered species, wetlands, floodplains, cultural resources.”


What resources?”


“Cultural resources – that means historic landmarks, archaeological sites, things like that.”

You look at your lawyer and she shrugs her shoulders. You’re both thinking Mount Vernon, or the Taj Mahal, or Olduvai Gorge. There’s nothing like that on your property.


“It’s required,” the A/E says. “Got to get clearance. It’s usually just a formality.”


And thus you find yourself paying for a “cultural resources study” (though it may be called something else), the purpose of and need for which are not clear to you. And this study may lead you into some very strange worlds.

OK, skipping ahead because this issue has just come up in a project on which I’m consulting, I want today to compose something about how unwise it usually is for a project proponent to argue about the significance of a historic place – in standard US practice, its eligibility for the National Register of Historic Places – and solicit reader reaction. So…

Is It REALLY Historic?

Your consultants have found some places that you’ll have to dig up or knock down to build your project, that they say are “historically significant,” or “eligible for the National Register,” or maybe “potentially eligible.” Or maybe your consultants haven’t found these places but others – the local Indian tribe, the historical society, landowners, the Sierra Club – have drawn attention to them. These places may not look like anything to you: maybe a few piles of rocks, some sharp pieces of stone your consulting archaeologist gets all wet in the pants about and starts mumbling about “bulbs of percussion.” Maybe squiggles on an old map showing that there was once a homestead or a house of prostitution on the site; maybe a scruffy old building in which you wouldn’t house your ne’er-do-well son-in-law. Maybe some broken up fragments of pottery, or some bones. Maybe nothing at all but plants and trees, a rock outcrop and a slow-moving stream, but the tribe says it’s a “traditional cultural place” associated with some old story about weird mythological doings in some ancient dream time. “This place,” they say solemnly, “is eligible for inclusion in the National Register of Historic Places under Criterion A” – or B, C, or D.

Your inclination may be to say “this is a bunch of hooie; my consultant is trying to enrich himself by getting me to fund more studies” – or “these NIMBYs are making up something to encumber my project.” You may be right. You may also not be right, but let’s assume that you are. What happens if you say “Hell no, that place can’t be eligible for the National Register under any criteria; it’s all BS?” Politely, of course.

Well, as you may imagine, there’s a process for that, and quite a few permutations on the process. In essence you have to show why the place is not historic, to the satisfaction of the State Historic Preservation Officer (SHPO), maybe a Tribal Historic Preservation Officer (THPO), and if push comes to shove, to the Keeper of the National Register in the National Park Service. All this takes time, and probably more studies, so your consultant makes out like a bandit; he gets to dig around – in the ground or in archives or in the minds of old folks who remember what’s happened at the place – and all the time you’re paying him. And of course, he – the specialist – is the expert; you’re not, and he’s the guy who knows the SHPO, and maybe the tribes and the local preservation people; you don’t.

Of course, you can hire a new consultant to challenge your original consultant’s arguments, but then you’re likely to find yourself with two consultants arguing about something you don’t understand at all, and there’s no telling how long it will take to reach a decision – if one is ever reached. There’s not much you can do to control this process, other than to keep firing consultants and hiring new ones, and/or calling up your good buddy the governor to put pressure on the SHPO, or your Congressman to lean on the National Park Service – all of which strategies have their own downsides, at the very least requiring ratcheting up your campaign contributions.

If it’s a tribe or NIMBYs pushing the eligibility of the place, you can task your consultants to show that they’re wrong, but this tends to be a real loser. Think about it. The tribe or NIMBY is saying “This place is important because it’s associated with OUR cultural traditions or beliefs.” Your consultant is going to say “no it’s not?” On what grounds? Sure, the consultant may be able to show that there’s no scientific evidence that the cosmic snake Xbuttlesquirm emerged from the ground at the beginning of time and created Crooked Creek, but scientific evidence is irrelevant to the belief system of the tribe, and it’s in their belief system that the creek is (said to be) significant. And the NIMBYs, if they’re smart, will not hang their case on some historical fact that can be disproved (“Jesse James hid in this cave") but on a long-standing belief that has taken on cultural significance of its own (“We’ve all believed, for generations and generations, that Jesse James hid in this cave; it’s become an important part of our identity; it doesn’t matter whether he ever hid there; it’s been “Jesse’s Hideout” since my grandpa was a little sprout.”)

It is possible to get the SHPO to agree with you that the place isn’t eligible, but if the opposition knows what it’s doing there are ways for them to appeal the SHPO’s decision to the Keeper of the National Register in the National Park Service, and you have another delay. The Keeper almost always wants more information, more studies, hence more delay. And the Keeper, living in Washington DC, often asks questions that leave everyone scratching their heads. “What’s the boundary of the place,” for example, whether that makes any practical difference or not. Finally, the Keeper most times comes down on the side of eligibility.

And even if the Keeper goes along with you and says the place is not eligible, there are other laws the opponents can drag in that have nothing to do with Register eligibility; depending on the circumstances, they may have cases to make under NEPA, RFRA, AIRFA, NAGPRA, and maybe state or local law.

So, what to do? Smile, choke back your skepticism, and say “OK, we respect your point of view; we’ll treat everything as eligible.”

Why? Because, remember, the law doesn’t say you can’t destroy eligible, or listed, places; it simply says that you, and the federal agency involved, have to take the effects of doing so into account, following a specific set of procedures laid out in the ACHP’s regulations. So if you accept eligibility, accept the significance of the place, you next go to figuring out what effects you may have on it, and how adverse effects can be resolved. This may turn out not to be too hard. Maybe the effects will really be pretty mild, and you can find pretty easy ways to mitigate them.

True story: I was once involved in mediating a dispute between the U.S. Air Force and the Alaska SHPO over the proposed abandonment of a bunch of Nike Missile batteries and DEW-Line sites. The SHPO said they were historic; the Air Force said they weren’t; the parties were at loggerheads. My colleague and I (she was from the ACHP) asked the SHPO what she wanted done with the places. “Oh, she said, there’s one battery we’d like to make available to a city government to interpret, and we’d like some sort of encouragement to Native Communities to reuse the Dew-Line buildings.”

We turned to the Air Force: “Any problem with that?”

“No,” the Air Force responded, “but we still don’t think they’re eligible.”

In another case I’ve heard about, involving a pipeline over the shoulder of a mountain regarded as sacred by a tribe, after years of wrangling about the mountain’s eligibility for the Register, the effects of the project were resolved by holding a ceremony blessing the pipe, putting it into spiritual synchronicity with the mountain.

It’s not always that easy, but at least when you get to arguing about effects and how to resolve them, you’re on your turf, not the opposition’s. You control information on what’s feasible and what’s not; you can do studies to show what the visual or auditory or atmospheric impacts will be. And in the end, if push comes to shove, you can argue with the federal decisionmakers that there aren’t any feasible options and the public benefits of your project outweighs the damage it will cause. We’ll get to how you do that in the next chapter.

The bottom line here is: fighting over the significance of a place is usually a losing proposition for you. Yes, acknowledging its significance means you’re probably going to have to do SOMETHING to mitigate impacts on it, but the chances are that if you object to its significance you’ll STILL end up doing something; you’ll just take a lot longer to get to the decision about what to do, and spend a lot more money getting there. Plus you’ll so piss off the opposition – because you’re basically calling them liars and cheats, and/or denigrating their cultural values – that they’ll be less willing to deal with you than they’d be if you were more respectful, and more likely to try to stick you for outrageous mitigation measures.

One more point: there's a myth abroad in some parts of the world that if a place is eligible "only" under National Register Criterion "D" -- for containing significant data -- it can be readily dug up and gotten out of the way, while if it's aligible under Criterion "A" for association with significant events, it can't.  This is flatly not true.  The Criteria of eligibility don't define treatment; Criterion "D" sites aren't any more excavation-fodder than are Criterion "A" properties, and Criterion "A" places are no more inviolate than those given a "D" grade.  What has to be preserved, as opposed to moved, dug up, knocked down or blown away, depends on what's negotiated among consulting parties, and ultimately on what the federal agencies involved decide is in the public interest.  Your job is showing them that your project is more in the public interest than would be keeping the historic places inviolate.  You'll do a better job of showing this, and get to the point of doing so quicker and at less cost, by accepting what people tell you about the eligibility of affected properties.