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.