Wednesday, August 25, 2010

The ACHP on "Reasonable and Good Faith" Identification

Unaccustomed as I am to saying anything good about the U.S. Advisory Council on Historic Preservation (ACHP), I’m happy to report that in my opinion, they provided some pretty decent guidance recently about what constitutes a “reasonable and good faith effort” to identify historic properties under their regulations (36 CFR 800). This shouldn’t be a challenging question, but it seems to be; federal agencies, State Historic Preservation Officers (SHPOs) and others are forever trying to translate the simple terminology of the regulations into hard-and-fast standards, which leads to all kinds of idiotic arguments. Does a “reasonable and good faith effort” always demand an archaeological survey? A survey of possibly historic buildings? A landscape study? Must we space our archaeologists ten meters apart on the ground, or will fifteen do? Must everybody on the team have an advanced degree? Oh dear oh dear; whatever shall we do?

The ACHP’s guidance is laid out in a letter dated August 20, 2010 and signed by Reid Nelson, Director of the ACHP Office of Federal Programs. It’s addressed to an SHPO and deals with a particular case, neither of which needs to be identified here. The guidance is contained in the following lines:

In the ACHP's opinion, an agency official's identification effort is "reasonable and in good faith" and in compliance with the Section 106 regulations when it is:

(1) logically designed to identify eligible properties that may be affected by the undertaking. understanding that the regulations do not require identification of all such properties, without being excessive or deficient in light of the cited factors {i.e., the work is reasonable);
(2) not compromised by a disregard for the historic preservation responsibilities of federal agencies as set forth in Section 2 of the NHPA, or by dishonesty, such as manipulating or ignoring evidence (i.e., the work is carried out in good faith): and
(3) supported by documentation that allows reviewing parties to understand (not necessarily to agree with) the basis of its findings.

Oh sure, it could have said more. It could have emphasized the process of scoping – consider the area you’re concerned about, its character, its history, its prehistory and ethnography and sociology, discuss it with people who know about it (like those who live there), and use the resulting information to design your scope of work. It could have cited the rules laid out by the Tenth Circuit in Pueblo of Sandia v. United States (50 F.3d 856 [1995] – see, which held in essence that an agency needs to consider all the relevant background information available to it in designing its identification program, and consider applicable guidance, and not keep data from consulting parties. It could have emphasized the fact that one may need to do different kinds of identification in different parts of one’s area of potential effects (APE), or in different APES, depending on the kinds of impacts that are anticipated (physical, visual, indirect, etc.). But I’m happy to see it say as much as it does. Particularly –

That the regulations don’t require identifying every single historic property out there. You need to identify enough, in enough detail, to get a handle on what the effects will be. What percentage of the total that means depends on all kinds of factors – notably including the kinds of impacts you’re likely to have. And what may be more important than what percentage you ought to identify is how you ought to identify them, and what you ought to note about them. For example, if you’re looking (sic) at visual effects, you need to think and ask about whether a place has characteristics (like people living in it who value their view) that will be affected by changing its viewshed.

That the regulations ought to be implemented with an eye toward the responsibilities laid out in Section 2 of NHPA – that is, the responsibilities to:

(1) use measures, including financial and technical assistance, to foster conditions under which our modern society and our prehistoric and historic resources can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations;
(2) provide leadership in the preservation of the prehistoric and historic resources of the United States and of the international community of nations and in the administration of the national preservation program in partnership with States, Indian tribes, Native Hawaiians, and local governments;
(3) administer federally owned, administered, or controlled prehistoric and historic resources in a spirit of stewardship for the inspiration and benefit of present and future generations;
(4) contribute to the preservation of nonfederally owned prehistoric and historic resources and give maximum encouragement to organizations and individuals undertaking preservation by private means;
(5) encourage the public and private preservation and utilization of all usable elements of the Nation's historic built environment; and
(6) assist State and local governments, Indian tribes and Native Hawaiian organizations and the National Trust for Historic Preservation in the United States to expand and accelerate their historic preservation programs and activities.

Too often, I think, we lose track of why we’re doing all this historic preservation, Section 106y stuff. We’re doing it because Congress, in Section 2, told agencies to do all those things. I think the ACHP has done us a favor by reminding us of this fact.

And I appreciate the final point, about documentation. The adequacy of documentation in identification ought not to be judged by weight, volume, number of fancy words or adherence to any particular set of standards, but by its understandability. It ought to be clear, it ought to be straightforward, it ought to make sense to the lay reader, and it ought to be as complete as it needs to be to allow readers to understand what’s out there and how it will be affected.

The “reasonable and good faith effort” standard is one of the great strengths of the Section 106 process, and it’s too often ignored in favor of rigid technical standards. The ACHP deserves applause for reminding us that it exists, and of what it means.

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