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Wednesday, January 18, 2017

Two More HAT Award Runners-Up

All the contestants have now given me permission to post their entries, so here are two more. There'll be two more tomorrow, insh'allah, and then THE WINNER on January 20th.

Thanks again to all the participants, and the judges.

Entry by Lydia Costello
Jan. 10, 2017
            As we embark upon a future of Donald Trump as President of the United States there are questions regarding the future funding of historic preservation activities and initiatives.  As a student I believe concern should focus on the classroom.
             I am a junior studying Historic Preservation at Roger Williams University in Bristol, Rhode Island. In the fall of 2015, The 1772 Foundation approached Roger Williams University with a grant to research the effectiveness of The National Council of Preservation Education.
            The 1772 Foundation’s mission is to ensure protection of historic buildings and farmland within the northeast, with matching grants for Connecticut, New Jersey and Rhode Island. The grant’s research objective was to determine which programs offered Historic Preservation Real Estate Finance courses. Real Estate Finance was decided as the most under studied aspect of historic preservation. The 1772 Foundation saw the benefits of a course like this would have on students. Research was conducted on every university, college and educational institution that provides an undergraduate degree, graduate degree and/or certificates within historic preservation. Four students were charged to review each institution’s course selection and syllabus. 
            The outcome of the research was shocking lack of uniformity among programs. My colleagues and I began to notice the absence of common classes within the fourteen undergraduate and thirty-two graduate institutions. One would think there would be a foundation courses or some kind of curriculum outline however we found the contrary. With this information The 1772 Foundation offered a course at Roger Williams University titled, “ARCH 530/HP 530 Project Development and Finance”. The outcome of the course was very successful. The students both graduate and undergraduate received invaluable information. This course has now been opened up to law and business students as well.
            As one of four students assigned to this project my eyes were opened to the vast differences in programs and education. Setting up foundation courses or an accreditation process for undergraduate and graduate programs would be extremely helpful for employers to better understand the individual’s education. This could provide some competition or rigor between programs. While researching we began to see a trend of schools who were much more archeological based rather than structurally. Some were very history heavy while others focused on planning and conservation.
            Historic Preservation is the endeavor that seeks to preserve, conserve and protect buildings, objects, landscapes or other artifacts of historical significance.  I believe historic preservation is above and belowground, tangible and intangible however, my education does not go past the structure. I think that’s a huge disservice to students. Historic preservation undergraduates should be getting an education in structural integrity, conservation, cultural resource management, community planning and archeology. Within these sections are subsections of documentation, surveying, oral history, and archival research to name a few. Leaving graduate schools to have more specificity to allow students to hone their knowledge in a certain area. We can accomplish this within every historic preservation program with foundational curriculum or accreditation. The biggest lesson in historic preservation that I’ve learned thus far is every moment is a teachable one.
            Educating communities, neighborhoods and citizens opens the door for positive perception of historic preservation. Historic preservation is seen in a negative light in many communities throughout the United States. In the summer of 2016 I was an intern for the Newport Historic Preservation Planner, Helen Johnson. I constantly overheard members of the community speaking negatively towards historic preservation and the “hoops” it requires for a citizen to simply change a part of their structure. Preservation is intended to be positive based planning not to challenge and hinder citizens. We need to begin investing in our communities by providing seminars and meetings on helpful and meaningful topics within historic preservation.
            The transition of leadership in the United States brings up many questions. How organizations such as the National Trust or National Environmental Policy Act will change and evolve is not known.  The way historic preservation functions today through government funding could change under Donald Trumps presidency. Our systems today are flawed and less than adequate funding will be detrimental to the success of historic preservation. The goal of interpreting tangible and intangible history is the mission of every preservationist and must be preserved as a priority in the new administration.
            The question that needs to be addressed how will federal organizations such as the National Trust for Historic Preservation or more importantly the role of State Historic Preservation Officers function in the new administration. The United States has not seen a government-affiliated organization privatize, I believe historic preservation can be the driving force.
            This is the beginning of the conversation. It will take many groups of professionals to come together and decide on the path of NEPA and Historic Preservation Act. I am writing this today as a student who believes historic preservation does have a future. I am not sure what the next four years will bring. I do know that we will not allow our work to preserve be hindered by a change in political power. The way historic preservation of our cultural and physical being is taught and supported will ensure that the United States of America has an accurate history of who we are, what we believe and how we live.
The Case for the Fantasy Federal Historic Preservation Law of 2017: 
Musings on How to Make a Good Thing Better

January 5, 2017

S. Joe Griffin

My submission to the HAT contest is based on the central idea that historic preservation only matters if someone cares about the resources that are being preserved.  The submission also addresses some of what I consider to be the most glaring deficiencies in the existing Section 106 process.

I doubt there is a cultural resources professional alive who hasn’t encountered a construction crew, or an engineer, or a developer who laughs at the idea that some old building/ old rocks/ old irrigation ditch/ old neighborhood/ etc. is historically significant.  Who cares about all this stuff really?  This is a fundamental question, and our profession must pay close attention to it, especially as we usher in an era where federal expenditures and requirements are looked at with increased scrutiny.  Many practitioners approach historic preservation from the smug premise that the general public simply doesn’t know what is important about the past, and it is up to our enlightened cadre to bring it to light.  You may not care about it, but when an architectural historian has determined that we must carefully document a building constructed by a locally prominent architect from the early twentieth century, this documentation is really for your own good. 

Certainly the historic preservation community has an obligation to educate the public about interesting facets of the past, and to identify significant resources that may not be obvious.   How can we find a middle ground that allows for education and exploration, but that does not stray too far from the realm of public interest into specialist interest?  How are cultural resource managers expected to work out what is and is not interesting to the public?  The Fantasy Law attempts to address this challenge with state-wide interest surveys, and by prioritizing consultation and the identification of as many potentially interested consulting parties as possible.

This leads us to the current National Register Criteria, four simple categories into which all significance must fit; association with an important event or person, artistic or engineering cleverness, or data potential; and the endlessly mysterious aspects of integrity, some permutations of which are acceptable, some others are not.  Perhaps counter-intuitively, these seemingly open-ended categories wind up being restrictive in practice, introducing a heavy bias toward the opinions and preferences of professionals rather than communities.  The American public, communities, and tribes are often not able to easily express their values in the limited terms of the law, and their voice loses volume as a result.  The Fantasy law does away with these limited criteria and integrity considerations, focusing instead on the ways in which a resource is valued by different groups—including professionals who may have an intellectual or academic interest.

Certainly the existing process tries to get at these values, after all the first step in the Section 106 process, as described under 36 CFR 800.3, includes the identification of consulting parties.  In practice, however, this is generally given pretty brief consideration.  The regulations require the Agency to identify the correct SHPO for instance; this is an easy section to gloss over.  Identifying potentially interested tribes can be straightforward in some cases, tricky in others (e.g. states where significant and large scale forced displacements occurred or where numerous small tribes exist with overlapping territories), but always important.  Fortunately there are many resources available in various states to help with this and generally this isn’t terribly time consuming either.  Identifying other potentially interested groups and individuals is immensely harder.  Ambitious practitioners may contact historical societies and local museums, but more often public involvement is piggybacked on NEPA public meetings or given some other very minor consideration. 

Identifying consulting parties is vital, and it is obviously appropriate to put it at the very beginning of the 106 process.  On the other hand, it may not be obvious at the outset of a project whom should be consulted.  For instance, suppose that construction would occur in a neighborhood that superficially looks like any other, but that was historically occupied by a particular ethnic group.  This information will likely come to light quickly, but it may not be easy to find members of that group to speak with, much less a central voice who speaks for the community.  For this reason, identification of consulting parties should be on-going, and made a chief priority throughout the process.  The Fantasy Law does just that.

Unlike laws like the Endangered Species Act, the NHPA is almost entirely toothless unless someone sues.  Even then, a cursory glance at NHPA case law highlights the fact that the government only loses lawsuits when it can be shown that an agency failed to follow the process, never when consulting parties disagree with conclusions  or decisions made by an agency.  In other words, substantively inadequate work is nearly bulletproof, so long as all of the boxes got checked along the way.  The Fantasy Law addresses this by providing oversight from a federal regulatory agency, not individual states which, thanks to the supremacy clause in our Constitution, are not likely to be empowered to regulate the federal government. 

Several important aspects of the existing processes are carried over into the Fantasy Law.  Like the NHPA, the law applies only to Federal Agencies, leaving the individual states to regulate themselves and their citizens as they see fit.  The structure of the process is similar, involving inventory, effects analysis, and resolution of effects.  Finally, though the role of the SHPO is supplanted by a new federal agency, their primary function carries on (and the law benevolently directs the federal government to absorb all those hard working state employees).
Now, without further ado—I present the . . .
Fantasy Federal Historic Preservation Law of 2017

This law establishes a Federal Agency called the Federal Office of Historic Preservation (FOHP), with branches in each state.  Each state branch of the FOHP is a Federal agency with authority to regulate the actions of other Federal Agencies.  The FOHP is responsible for project review and for the establishment and maintenance of both historic resource record centers and the state historic interest surveys.  Each state branch of the FOHP is expected to absorb and incorporate the staff and resources of existing State Historic Preservation Offices, as possible.  For projects which occur entirely on Federal Tribal Trust Land, the Tribal Historic Preservation Officer may assume the role of the FOHP, if the tribe determines that doing so is in their best interest. 

Within two years of the passage of this fantasy law, each state branch of the FOHP shall conduct state-wide historical interest surveys of the residents of their state.  The interest surveys are intended to identify themes, events, and locations that are valued by the residents of each state.  The surveys provide a starting point for historical resource consideration by highlighting resources and ideas that are important to the general public.  For this reason, the surveys must be updated no less frequently than every five years.  These surveys are intended to provide a broad perspective to the consultation processes outlined below, and do not replace full and complete consultation.    
Federal projects will be subject to the following regulatory process:

Inventory Scoping and Planning

1.      Identify jurisdictional project.  All projects that are funded or permitted by the Federal Agency, or those that occur on or pass through Federal land, are subject consideration.  If more than one Federal Agency is involved, one shall take responsibility for this process as lead agency.
2.      Identify the scale and degree of Federal involvement in the project.  The level of effort for historic resource consideration should be scaled appropriately.   
a.      The degree of Federal involvement is determined based on the Federal cost as a fraction of total project cost, and the proportion of the project that would occur on Federal Land or that would require a Federal permit or permission.
b.      The project scale is based on total project cost in dollars.  This calculation is based on projected costs or grant or allocation funds, and is subject to review to ensure that a larger project is not being artificially separated into smaller undertakings.

Inventory Process

3.      Identify interested consulting parties.  Consulting parties are any groups or individuals who can reasonably ascribe significance to an area or to properties located in whole or in part within an area.  This effort should be on going throughout the inventory process.  Starting with an initial identification effort made at the beginning of the inventory process, the Federal Agency should continue to seek additional parties with a potential interest as the process progresses.

4.      Review the state and Federal Historical Interest surveys to identify themes, events, or locations that are potentially significant at a state or Federal level.
5.      Begin consultation.  Working collaboratively with consulting parties, the Federal Agency shall identify properties that are significant on one of the following bases, in order of descending significance:
a.      The property or location is fundamental to the self-identification of a group or community
b.      The property or location is highly valued by a group or community
c.       The property or location is of high intellectual interest to a group of community
6.      Certain properties may not be known to the groups or communities that would value them, if their existence were known.  Collaboratively with the groups or communities with an express interest in the property or location, the Federal Agency shall identify an Investigation Area of Potential Historical Interest (IAPHI), and develop and implement a physical inventory of the IAPHI.

Effects Analysis

7.      Once a reasonably scaled effort to identify significant properties has been completed, the Federal Agency, working collaboratively with the consulting parties, shall consider whether the undertaking would cause potentially cause effects to such properties.

8.      If the Federal Agency determines that the project would not affect significant properties, the project may proceed to Final Review. If the Federal Agency determines that it is reasonable to conclude that a project would affect significant properties, the Federal Agency shall determine whether or not it is feasible to avoid affects to such properties.

Avoidance Feasibility Process

9.       The Avoidance Feasibility process has two steps. The first step is to formulate one or more alternative approaches to a project that would avoid or minimize effects.

10.  The second step is to determine whether an avoidance alternative is feasible.  Such an alternative is considered feasible if the following conditions are met:
a.      The avoidance alternative is not significantly more costly than the economically preferred plan.  As used here, the term ‘significantly more costly’ means:  A 5% increase to the Federal share of the project cost is considered not significantly more costly.  For projects subject to Federal permitting, or for which access to Federal land is sought, a 1% increase to the total project costs is considered not significantly more costly.  The reduced Federal involvement justifies this difference.   
b.      The functionality of the avoidance alternative is not diminished from the economically preferred plan, or any such diminution of efficacy is acceptable to the Federal Agency and the project proponent.
c.       If the Federal Agency determined that avoidance is preferred, even if either or both of the above conditions are not met.
11.  If avoidance is feasible, the project may proceed to Final Review.  If avoidance is not feasible, the Federal Agency shall consider mitigation.


12.  Where avoidance is not possible, the Federal Agency shall seek to develop a mitigation plan collaboratively with consulting parties.  The mitigation may take any form, but should be specifically directed towards correcting anticipated impacts.

Final Review and Approval

13.  The Federal Agency shall submit a summary report (SR) to the FOHP that will:
a.      Justify the results of the scoping work
b.      Describe efforts made to identify significant properties, analyze effects, and avoid or mitigate effects, as applicable.
c.       Summarize consultation efforts.
d.      Describe a plan for discoveries of significant properties during project implementation or for post review disclosures of properties or significance by consulting parties. 

14.  The FOHP shall review the SR for completeness and adequacy.  The FOHP shall respond to the Federal Agency with their confirmation of completeness and adequacy, or with comment.
15.  When the FOHP provides a Federal Agency with a confirmation of completeness, the project may proceed, pursuant to any conditions or plans outlined in the SR.
16.  When the FOHP provides a Federal Agency with comments, each comment shall explain the specific incompleteness or inadequacy and suggest a course of action to resolve the comment.
17.  If the Federal Agency chooses to adopt the course of action suggested by the FOHP, the project may proceed, pursuant to any conditions or plans outlined in the SR and FOHP comments.
18.  If the Federal Agency chooses not to adopt the course of action suggested by an FOHP comment, the Agency, the FOHP, and any appropriate consulting parties shall consult directly for a period up to 180 days.  If the Agency and FOHP cannot reach agreement by the conclusion of this consultation period, the Agency may either continue consultation, or terminate consultation and proceed with the project.  An Agency shall not terminate consultation without a full 180 days of good-faith consultation.

Human Remains and Burials

19.  Native American human remains found on Federal land shall be treated in accordance with the Native American Graves Protection and Repatriation Act.
20.  When human remains are found to exist in the IAPHI, outside of Federal land; and the Agency determines that they would be affected by the project, but may be feasibly recovered and moved, the Agency shall take the following steps:
a.      Notify local law enforcement and determine whether the remains constitute a crime scene.  If the remains are found to constitute a crime scene, the Federal jurisdiction under this process ends.
b.      Determine whether the remains may be individually identified and direct lineal descendants identified.  If such descendants are identified, they shall be determined to be the responsible party.
c.       If direct lineal descendants cannot be reasonably identified, the Agency shall seek to identify a group or community with which the remains are most likely affiliated.  If such a group of community is identified, that group or community shall be determined to be the responsible party.
d.      If the remains are equally likely to be affiliated with more than one group or community, those groups or communities will be given the opportunity to designate one group which will assume responsibility for the remains.  If the groups cannot reach agreement, the Agency shall assign one group to be the responsible party based on a preponderance of evidence.
e.      If no affiliation can be demonstrated, interested groups or communities will be given the opportunity to take responsibility for the remains, if the Agency determines that such a delegation of responsibility is appropriate.
f.        The responsible party shall make a recommendation to the Agency regarding the ultimate disposal of the remains, or they may be given direct custody of the remains.  If the responsible party requests that the remains are reinterred, the Agency shall provide reasonable assistance in accomplishing this.
g.      If the responsible party declines to take possession of the remains, and makes no recommendation as to their ultimate disposition, the Agency shall make the remains available for scientific research, provide for respectful re-interment, or leave the remains in place.

21.  Non-compliance is found whenever the FOHP finds that a Federal Agency has not fulfilled their obligations with regard to process or whose consideration is deemed less than a full good-faith effort. 
a.      When the FOHP finds non-compliance, they must notify the Federal Agency within thirty days of their observation of the non-compliance.
b.      The Federal Agency will then have 60 days to resolve the non-compliance.
c.       If the Federal Agency cannot resolve the non-compliance to the satisfaction of the FOHP, the project shall be suspended while the FOHP and Federal Agency enter into binding mediation by a disinterested third-party.

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