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Tuesday, May 05, 2015

Don't Sweat the Small Stuff: Using 36 CFR 800.3(a)

Suppose you’re a federal official, or a contractor for a federal agency, with a piece of land to manage. Or maybe you’re a State Historic Preservation Officer (SHPO) consulting with such an agency.
Suppose you’re SURE that no historic properties, known or unknown, are likely to be affected by operations on the land – maybe because you’ve studied the place and consulted with everyone concerned and found nothing to be concerned about, maybe because the kinds of things being done there (say, routine maintenance) just doesn’t do any damage.
Suppose, as a result, you want to stop spending time doing standard NHPA Section 106 review on each and every operation (e.g. each building remodel or ditch-digging project, but don't know how.
What do you do?
I get this question pretty often, and people usually usually ask about negotiating a programmatic agreement (PA) or some other "program alternative." Which takes months or years to negotiate, bores everyone to tears, usually becomes dangerously bloated and subject to misinterpretation, and often, once in place, is simply (and understandably) ignored.
People, you don't have to go to so much trouble. Fixating on such things, I think, is an expression of an all-too-common distortion of​ the 106 review process, in which everybody agonizes over small, routine, pretty much insignificant issues and develops ponderous documents stipulating how they’ll be addressed.
The flip side of this distortion is ignoring the big, nasty issues and impacts and closing interested parties out of "consultation.” That last word usually defined as "getting the SHPO to approve our projects."
In other words, everybody sweats the small stuff and ignores the important cases where there are real issues to be resolved, of importance to real people.
There’s a simpler way to quit wasting time on reviewing routine, virtually-no-impact operations.
If a federal agency is really sure that its undertakings on a given facility have no potential to affect historic properties, then the agency and its helpers ought to look at 36 CFR 800.3(a). This section of the Section 106 regulations says that in initiating review of a proposed undertaking:
The agency official shall determine whether the proposed Federal action is an undertaking as defined in § 800.16(y) and, if so, whether it is a type of activity that has the potential to cause effects on historic properties. (underscore added)

It goes on to say:

 If the undertaking is a type of activity that does not have the potential to cause effects on historic properties, assuming such historic properties were present, the agency official has no further obligations under section 106 or this part. (underscore added)

In other words, the agency can -- unilaterally and without going through any particular process, conclude that -- say -- routine operations at the Fred Noonan Institute for Aerial Navigation have no potential for effect on historic properties, and hence do not require review under Section 106. Document that for the record and proceed with no further 106 work.

No PA, no exemption, no SHPO buy-in.

I have some caveats, of course:
1.    You need to be REALLY sure there's no potential for impact -- direct or indirect, or contributions to cumulative impact, on any and all kinds of historic properties.
2.    But of course, you may be wrong, so you need to provide somehow for cases where impacts DO arise.
3.    Time passes, history happens, change comes, so you probably ought to reconsider your finding from time to time.

Some have been known to argue that if an action-type (say, ditch-digging) has the theoretical, abstract potential for impact (You can never be SURE what's in the ground, or not, or whether there's something historic about Building 72 that nobody's noticed despite the fact that it was built in 2012), an action falling into that type must be reviewed. There is some intellectual legitimacy to this sort of argument, but it is truly an argument for devoting limited resources to BS debates, and -- as one wise Federal Preservation Officer who used Section 800.3(a) effectively once asked me, "Who the &^%$# is going to sue?"

So seriously, if you’re a federal agency official, or a consultant advising such an official, or an SHPO consulting with such an official, consider Section 800.3(a). Applied responsibly, it can save a lot of time and trouble, and allow you to apply your limited personnel and financial resources to cases that actually matter.


Anonymous said...

I couldn't agree more Tom. The NPCE is something that I frequently rely on. It is in the regs for a reason. I do think that the ACHP guidance on its use is not realistic however. In my reading of what the ACHP has said, they seem to suggest that you just have to consider the "activity" with no consideration of anything project specific. That is, the "activity" of turning on a light (ridiculous example intended) has No Potential to Cause Effect. I definitely think the intent of the regs is met if you take into consideration the "activity" and the project specific information. It would actually seem much more informed to do. I could perhaps see a chance for an "activity" that taken on its own would seem to pose NPCE, but given project specific information may not. I would hope that's why agencies have cultural resources specialists employed who are able to make or more appropriately recommend those types of findings.

Anonymous said...

The agency I work for is very conservative with the use of 800.3(a). When learning about how the agency uses 800.3(a), they equate it to buying paperclips. However, I think this approach is the result of specialists and managers abusing the use of it.

That being said, I have use 800.3(a) a couple times, but I learn all I can about the undertaking and understand the resources in the area as well as I can. The undertakings are also relatively small in scope and scale.

Also, when using 800.3(a), couldn't we fall back on 800.13 Post-Review Discoveries if on the off-chance we do encounter something? The agency could then go into consultation, and basically begin again with a mea culpa of sorts?

Tom King said...

When 800.3(a) was added to the regs, I started out thinking that paperclip purchases were all it was good for, but when I worked for awhile with the General Services Administration (GSA), which does an awful lot of stuff like interior renovation of non-historic or marginally historic spaces, I learned pretty fast that there were practical reasons for treating it more expansively. One can argue for a narrow interpretation based on the fact that 800.3(a) allows one only to exclude things that represent TYPEs of action that lack the potential for impact -- so interior rehab of a 1995 building, for instance, is still rehab, which as a TYPE of activity does, in theory, have the potential for impact. But that would cause you to spend all your time reviewing BS projects, making it difficult to give the big baddies the attention they deserve. That, to me, suggests that a broader interpretation is the wiser policy.

Anonymous said...

I have a question about this - coming from a SHPO perspective. I have been engaging with a lead agency releasing planning documents for a wildlife refuge that contains several historic properties, including historic structures, WWII resources, plantation era sites, cultural sites trails, etc. Members of the community have asked that the Refuge conduct 106 so that they can weigh in on interpretation and management of the historic and cultural properties within the Refuge, which are largely un-addressed in the alternatives proposed in the Comprehensive Conservation Plan and EA. They see the planning documents as the chance they have to collaborate on interpretative programs that may address the cultural history of the area. The agency has maintained that the planning documents contain no specific actions impacting historic resources, so 106 is not warranted. The ACHP has said it's up to the lead agency to assert this.
Regardless, SHPO will be responding to the plans with comments regarding interpretation and management of the historic and cultural resources, and advancing the concerns of the community -
Do you have insight on this?

Anne said...

I've had the same experience as the first commenter, and in addition to that it's the "assuming such historic properties were present" part that makes things difficult.

To use your own example, even though you know that a building is from 1995, you have to assume there are historic properties present, and the "activity" of remodeling thus has the potential to affect. Only by going through the identification process would you document the building is from 1995, and end up with a no effect determination.

If this is not your interpretation, please elaborate so you save me from the job of reviewing BS projects...

Tom King said...

Anne, I think you may be interpreting the "assuming historic properties were present" language of the regulations backward. An agency doesn't have to find out whether there are historic properties present in order to decide whether to do 106 review. It simply needs to ask itseif: "IF there are any historic properties out there, could what I'm thinking of doing affect them?" If -- within reason, and interpreting the term "historic property" inclusively -- the answer is "no," then the agency doesn't have to do 106 review. In my hypothetical, I imagined that all concerned are quite sure that there are no historic properties involved. Again in the hypothetical, "the identification process" would involve looking up when the building was built, and could be done unilaterally by (or for) the agency.

If I were an SHPO, and wanted to get out from under review of BS projects, I think I'd find the agencies most likely to present me with such projects and help them find responsible ways to exclude projects from review under 800.3(a).