National Trust Says "Let's Take Section 106 Back to Basics"

Comments on Section 106 of the National Historic Preservation Act: Back to Basics, a report in two volumes issued in late September, 2010 by the National Trust for Historic Preservation in the United States.

People have been asking me if I was going to review the National Trust for Historic Preservation’s new report on the National Historic Preservation Act (NHPA) Section 106 process. OK, I will.

But the report, by preservation attorney Leslie Barras and entitled Back to Basics, is long and rather cumbersome, divided into two volumes – the second a technical elaboration and mustering of supporting data for the first. And it’s loaded with material with which it’s possible to quibble, and I know my quibbles would only put everyone (including me) to sleep. So what I’m going to do – for now, at least, until and unless some of the report’s recommendations begin to look like they might be implemented somehow – is comment just on the first volume, the “Summary Report.” Which is conveniently organized with reference to seven key recommendations, all but one complete with sub-recommendations. Let’s look at them one by one.

Recommendation 1. Federal agencies must endorse and compel compliance with Section 106.

The report begins its elaboration on this recommendation by urging the president to issue a “memorandum reinforcing agency responsibilities…and requiring reporting on current compliance.

Comment: Well, OK, but we’ve kind of been there and done that during the Bush administration, with little evident productive result. My personal belief is that this kind of initiative makes no sense except as part of a larger directive to agencies to clean up their environmental impact assessment (EIA) and public engagement systems generally (See my recommendation for presidential direction on pages 161-4 of Our Unprotected Heritage (Left Coast Press 2009). Section 106 by itself is too small-potatoes to be the subject of such direction, and directing better compliance with 106 without doing the same for the National Environmental Policy Act (NEPA) would not, I think, have very useful results.

The next subrecommendation is that “the Secretary of the Interior and Advisory Council Chair should consult with federal agencies on the adequacy of historic preservation staff capacity.” That’s probably a good idea, but they first ought to agree – with serious attention to outside advice – on what such capacity should look like. Just hiring lots more architectural historians and archaeologists is not necessarily a good idea, even if it were likely to happen.

Next, the report suggests that “federal agencies that oversee or delegate Section 106 compliance to nonfederal applicants for project funding or approvals should implement robust management systems to ensure procedural compliance with the law.” Yes indeed, and again it would be worth looking first at just what “compliance with the law” ought to entail. Agencies like the Environmental Protection Agency (EPA) in its delegation of Clean Water Act responsibilities and the Office of Surface Mining in its laughable (if it weren’t so sad) oversight of coal mining in Appalachia are letting their non-federal “partners” get away with murder, and it ought to stop. But again, just focusing on 106 won’t work; reform has to address the full range of environmental laws, notably NEPA.

Next, it’s suggested that “Special responsive strategies should be developed to address the challenges of Section 106 compliance when nonfederal parties receive project funding or approvals as a result of massive economic or disaster recovery initiatives.” There are two rather separate issues here. One circulates around the American Revitalization and Reinvestment Act of 2009 (ARRA), which pumped vast amounts of money into supposedly “shovel-ready” projects that weren’t, and is as a result distorting and short-circuiting the processes of environmental impact assessment, including but far from limited to Section 106. That’s pretty much a done deal, but yes, some sort of sensible strategy should be developed for such things when they happen in the future – other than just assuming that if an agency thinks its project is ready to go, it is. What that strategy (or suite of strategies) might be is anyone’s guess, and Back to Basics doesn’t essay to advance specifics. The other issue has to do with natural disasters like Hurricane Katrina, and here the report seems to reflect the Trust’s unhappiness with the Federal Emergency Management Administration for permitting large scale demolitions in New Orleans. As one who believes that New Orleans generally is doomed, and that the sooner we get used to the idea and let it go the better off we’ll be, I don’t think I have anything to say about this argument.

Next, Back to Basics says that “government performance and accountability reports should more specifically and prominently identify progress made and improvements needed in federal preservation programs.” This makes sense superficially, but the government performance and accountability report (PAR) standards and guidelines I’ve seen are idiotic, and only cause federal employees to while away their hours making up numbers. Calling on an agency like the Bureau of Land Management (BLM) to estimate how many historic properties it has taken nice care of this year is an utter waste of time, and calling on them to report things like nominations to the National Register is utterly counterproductive. If there’s ever a PAR system that makes sense, though, no doubt stuff like historic preservation should be represented in it.

Recommendation 2. Federal agencies need to ensure earlier and broader integration of preservation values in their planning processes

The first subrecommendation here is that “in many cases, consideration of historic properties could be improved through better coordination or integration with National Environmental Policy Act compliance.” Yes indeed, but the fact that the Section 106 and NEPA regulations aren’t themselves coordinated in any meaningful way throws something of a roadblock in the way of implementing this suggestion. The Advisory Council could do something about this, and so could the Council on Environmental Quality, but neither, I think, has the wit to do so.

It’s next suggested that “the Advisory Council should be more active in fulfilling its commenting responsibilities under the National Environmental Policy Act.” That, I think, is true, but the Council would need to think through how its comments on an Environmental Assessment (EA) or Environmental Impact Statement (EIS) would relate to whatever it does (if it does anything) under 106, and that effort would probably provoke institutional brain freeze.

Next, Back to Basics proposes that “environmental management systems should be expanded to encompass cultural resources, including Section 106 implementation.” This was something some of us explored for the Department of Defense’s Legacy program back in the 1990s. It seemed like a good idea then, and it probably still is. It’s a shame if, as Ms. Barras reports, it hasn’t been developed; I’d thought that DOD was actually making advances in this area.

Back to Basics goes on to recommend that “sanctions should be imposed on federal agencies that misuse environmental reviews and prevent meaningful Section 106 compliance,” but the sanctions it discusses (e.g. scolding comments by the Council) are pretty wimpy. More draconian sanctions might be worth considering, but only if “meaningful Section 106 compliance” is clearly and understandably defined. Agency officials shouldn’t get slapped with fines or prison sentences for piddly sorts of noncompliance, but they should get hit for really circumventing full public review of impacts.

The report then veers off in an odd direction, commenting that “interstate projects provide an opportunity to plan for strategic and consistent ways to identify and evaluate archaeological sites.” Well, yes, and some of us have promoted taking advantage of such opportunities for decades, but if anything the tendency lately has been toward fragmenting such projects, and nobody seems to mind. It's probably something worth trying to fix, but it's a pretty small something.

It’s next suggested that “earlier consideration of preservation values should be promoted through increasing preservation advocates’ participation in agency advisory committees.” That’s probably true. Certainly some of the major advances in Corps of Engineers attention to historic preservation happened when there was vigorous archaeological participation in its environmental advisory committee. Of course, this disciplinary bias tended to skew the Corps’ compliance regime in the direction of archaeology at the expense of other aspects of culture; “advocate” representation needs to be carefully thought through.

Back to Basics suggests that “outreach to groups not traditionally familiar with Section 106 should be further expanded, including development interests and the media.” This is doubtless true, but I don’t think it will work unless and until the Section 106 process is simplified and rationalized. Trying to explain the process in all its ramifications to someone “not traditionally familiar with it” – especially those with other things to do, like developers and reporters – can be an exercise in futility.

Recommendation 3. The Advisory Council should vigorously assert Section 106 as its core mission.

What can I say to this in general but YES INDEED. Section 106 IS the Council’s core mission, however much its ostensible leadership would rather attend events in the White House Rose Garden and pontificate at international gatherings. The Council ought to get some leadership that will lead, in doing what the Council was designed by Congress to do, and that’s Section 106.

In terms of specific subrecommendations, the report suggests that “Advisory Council members should increase their direct involvement in strategic Section 106 cases.” I think Ms. Barras really means Council staff here – in other words, the Council should re-think it’s decision of the late 1990s to withdraw from case-by-case Section 106 review. Indeed it should, though over the last fifteen years or so the Council has made itself so irrelevant to the actual process of 106 review on the ground, and provided so little useful direction to its staff, that it will take a major, carefully designed effort to re-engage.

The report very usefully recommends that “the agency’s role in Preserve America should be redefined.” Without of course criticizing Preserve America, because how could the National Trust ever be critical of a White House preservation initiative, Back to Basics delicately suggests that the Council’s emphasis on this feel-good program has distracted it from its core mission. Amusingly, it’s reported that:

“(t)he Council’s staff leadership has emphatically stated that staffing and support for Section 106 compliance has not been adversely affected by the Council’s in¬volvement in Preserve America, and that any shift in resources over the past several years primarily reflects a more limited role assigned to Council staff due to changes in the Section 106 regulations.”

I’ll bet the leadership is emphatic; they do love hobnobbing with the upper crust, and you get to do that by taking part in goody two-shoes activities like Preserve America, not in doing the grubby work of 106. But in saying that its infatuation with Preserve America has not distracted the Council from its core mission, the leadership, to put it delicately, prevaricates.

Back to Basics wisely suggests that “the Advisory Council should consider reopening a western office.” As an alternative, I can’t resist offering the suggestion long ago proposed by the then-Western Office’s chief, Lou Wall: the Council should close its eastern office. Having the western office was important not only because it put Council staff within striking distance of western cases – a value that was diluted by facilitated air travel and the Council’s withdrawal from much casework – but because it introduced a certain amount of realism into the Council’s world-view. It’s not a sure bet that a western office alone would be enough to counterbalance the inside-the-beltway biases of the Council’s senior staff, but it would be a good start.

Usefully, the report comments that “checks and balances are needed to reduce conflict-of-interest concerns when the Advisory Council’s “liaison” staff participate in Section 106 reviews for their funding agencies’ projects.” To say the least. See my recent blog post on the related subject of paying SHPOs; it’s absurd to think that getting staff and money from the agencies whose actions they review does not distort and corrupt the Council’s and SHPOs' objectivity.

Next we are told that “there is a compelling need for timely and concrete Section 106advice from the Advisory Council; opinion letters are one possible solution.” Maybe so, but the Section 106 advice we have seen from the Council lately has been a mixed bag at best. I’d like to see a system developed for formulating such advice that at least gave it a fighting chance to be relevant and useful.

It’s suggested that “facilitated negotiations should be conducted more often in controversial Section 106 cases, and training in conflict resolution skills should be provided to the Advisory Council’s staff.” Very, very true. I’ve commented elsewhere (as I did to Ms. Barras) that I learned more about dispute resolution in a 40-hour class at Bowie State University than I did in ten years at the Council. I’ve run into one Council staff member recently who said she was planning to get such training. Good for her, but this should be something the Council does routinely.

Back to Basics calls for “expansion of basic and advanced Section 106 training,” “facilitated by the Advisory Council.” “Facilitated” is a felicitous term. As one who has taught for the Council and for others, I think that others do a better job. Others are not bound to support Council policy; they – we – can tell it like it is. But help and advice from the Council would be welcome. And the report wisely notes that there are lots of ways to provide training these days besides just flying around and giving face-to-face classes.

Recommendation 4. Improvements are needed to increase consulting party access and public involvement in the Section 106 process

The first subrecommendation here is that “federal agencies should honor the requirement to directly invite consulting parties to participate.” This is a tremendously important recommendation; too many agencies continue to think that the only folks they need to consult with are the SHPOs. Of course, there are SHPOs who encourage them in this belief, and the fault for this lies in part with the National Park Service (NPS) – I’ll have more to say about that below. And the Council itself is not always very vigorous in its insistence that agencies bring others into the process – despite the clear priority given to doing so in the regulations as revised in 2000. This is an issue on which some vigorous guidance from the Council would be in order – to the federal establishment, to the SHPOs, and to its own people.

The report goes on to recommend that “consulting parties should be provided a tentative plan of action or roadmap for consultation.” I’m dubious about this. Each consultation is so individualized that it’s hard to imagine a “plan of action” or “roadmap” being anything but stultifying. To me it smacks a little overmuch of the common and repulsive agency practice of smacking down a draft memorandum of agreement at the beginning of a consultation and expecting everybody to sign on. But some notion of how someone (who?) expects a consultation to unfold would doubtless be worth having; it’s an idea worth exploring.

Back to Basics notes that “the Section 106 advocacy capacity of the National Trust’s statewide and local preservation partners requires strengthening.” This of course is an initiative that the Trust itself needs to pursue, and it would be helpful. Too often, statewide and local preservation groups have strange and exotic notions of what Section 106 is about, and bring little to the consultation table other than confusion – if they come to the table at all. An effort – by the Trust perhaps – to motivate and educate such groups would be very welcome.

The report bluntly notes that “the use of public participation models of inclusiveness has languished and needs to be resurrected.” Indeed. Not only should the Council and SHPOs (among others) talk the talk of fully involving the interested public, they should learn how to walk the walk. There is a vast literature out there in the world on how to open up public decisionmaking to public involvement, and people in historic preservation ought to get familiar with and use it. “Transparency” isn’t enough; if I’m watching a consultation through a perfectly transparent but soundproof window, I can’t have much influence. People want influence, but federal decision makers during the Bush years pretty systematically set up roadblocks to its exercise. Regrettably, the Obama administration has not yet demolished them.

Ms. Barras also recommends that “federal agencies and applicants for federal funding or permits should be more responsible to the public for project changes and commitments made in Section 106 reviews.” In other words, eschew what one of my tribal colleagues has referred to as the “Three-I” model of consultation: Inform, get Input, and Ignore. Listen to what people say and respond to it, give it credence, look for ways to address people’s concerns.

The report next advances the interesting idea that “consulting party and public feedback on their experience in Section 106 reviews needs to be actively solicited.” Presumably this is something the Council and/or the SHPOs could do, and it’s a good idea. Notably, such feedback should be sought not just from the usual “preservation partners,” but from all participants in review, whatever their interests.

Recommendation 5. State and tribal Section 106 programs should be supported by fees and full appropriation of proceeds in the national Historic Preservation Fund account

The report first recommends “serious exploration” of “the authority of states and tribes to assess fees to support their Section 106 review.” As discussed in a previous posting on this blog, I’m dubious of this proposition.

Next, Back to Basics proposes that “Congress should fully appropriate the proceeds in the national Historic Preservation Fund account.” This is a perennial plaint by the National Trust and other preservation advocates. If the proceeds were used to support real-world activities like Section 106 review, this recommendation would be worth real attention by Congress. Unfortunately, an awful lot of HPF-funded work – thanks to NPS – is plain silly, and would cause any thoughtful examiner to question the utility of supporting it with taxpayers’ dollars. If I were advising Congress, I’d say hold the HPF hostage to some serious reform on the part of NPS and its pet national organization, the National Conference of SHPOs.

Recommendation 6: Prior to further federal agency use of alternative approaches to comply with Section 106, the Advisory Council should establish standards to promote accountability in implementing these ‘program alternatives.’

In this very welcome part of the report, Back to Basics takes aim particularly at programmatic agreements (PAs). I’ve spent enough screen space in this blog on criticizing the passion for PAs, and don’t need to spend any more; I simply welcome the Trust’s support for the idea of rethinking how they’re used. It’s revealing that according to the report (and I know it’s true), the Council can’t even tell us how many PAs are currently in effect across the land. I do question whether the Council staff is up to establishing standards; they’ve been as willing as anybody else to accept and promote utter trash in the guise of “program alternatives.” But if done with a lot of – dare I suggest it? – real consultation, preparation of such standards would be a good idea. And holding off on more such enterprises pending a serious review is a very good idea.

Recommendation 6: Section 106 stakeholders should pursue new ways of using technology, while improving and expanding existing uses.

Back to Basics offers four subrecommendations here. First is that “’Web 2.0’ technology should be harnessed to enhance implementation of the National Historic Preservation Act.” Of course, I read that we’re about to see the development of “Web 3.0,” but that aside, I’m sure Ms. Barras is right, and I’m vaguely aware of a number of agency, SHPO, tribal, and other initiatives to do what she recommends. Nothing general and nationwide, though, except for NPS’s well-intentioned if not yet very effective historic preservation portal. The problems, of course, involve costs and the speed with which technology is changing – and the potential for wasting money on whiz-bang gadgets that don’t really accomplish much. Incidentally, I’ve been corresponding recently with a software developer about building a 106/CRM video game to take the place of a lot of face-to-face training. It would be (I think) a real money-saver in the long run, but it would cost about a million bucks. Anybody interested?

The report next recommends that “project management software needs to include Section 106 compliance milestones to help early and coordinated consideration of historic properties in construction projects.” Yes indeed, and this is an initiative that the Council could, I think, very usefully take on. I know that some state departments of transportation (but by no means all) have good systems that might be used as models, but most agencies just don’t factor 106 into project management at all; few do much with NEPA, either.

Back to Basics says that “the Advisory Council should establish deeper content on its website for Section 106 practitioners, consider establishing a compliance-oriented website name for inexperienced Section 106 stakeholders, and offer a targeted Section 106 link for the public on its homepage.” I kind of like the Council’s website, but it doubtless could use updating and “deepening,” and the idea of a pages especially for newbies and the public is a good one. Maybe the Council would like to fund my video game.

The last, rather lame subrecommendation offered by Back to Basics is that “metropolitan and regional transportation planning organizations need access to digitized cultural resource information.” To the extent I understand what Ms. Barras is getting at here – and the detailed background report doesn’t help much – I’m a bit frightened by this recommendation. It promotes linking planning and land use geographic information systems (GIS) with “cultural resource GIS,” but to the best of my knowledge there’s no such thing as a GIS that really represents cultural resource data in a reliable and comprehensive way. There are archaeological site GISs and historic building GISs and a few predictive model-generating GISs focused on particular kinds of resources, but there’s nothing that’s going to tell a planning organization where all the resources are, and that’s the simple-minded plea (or worse, expectation) that we keep hearing from such organizations and (unfortunately) even such august bodies as NPS and the Council. The idea of a comprehensive list of all the “cultural resources” makes even less sense than a comprehensive list of all historic properties – a notion that led to creation of the National Register and its ilk around the world, and has systematically misled planners ever since it bubbled into the fevered brains of the French revolutionaries back in the early 19th century. I really think we ought to give it up, or at least very seriously re-think it.

What Back to Basics Misses

I’m very glad to see Back to Basics, and hope that its recommendations are attended to by the Advisory Council and others. There are four things that I’d have liked to see the report touch on that it doesn’t address, but none of them, I’m sure, would have been politically feasible even if Ms. Barras had been inclined to pursue them.

One is the obnoxious role of NPS in distorting the 106 process. As I’ve discussed elsewhere in this blog (among other places), by structuring its periodic reviews of SHPO programs as it has, NPS has turned the SHPOs pretty generally into nit-picky counters of standard transactions, carefully keeping track of how many determinations of eligibility and effect they’ve concurred in, how many agreements they’ve executed, and the like, and systematically discouraging consideration of any more creative approaches to 106 review. It’s also predictably stressed the part of the process that it controls and loves – determinations of eligibility – allowing them to become chokepoints. All this has encouraged agencies to seek ways to “streamline” the process, usually through nonsense PAs.

Then there’s the problem of for-profit consultants (like me) performing Section 106 work for project proponents – an absolutely obvious formula for rotten, self-serving, biased findings and determinations. I’ve discussed this problem in my 2009 book, Our Unprotected Heritage, so won’t belabor it here.

Another issue that Back to Basics pretty much dances around is the need for the ACHP to revise its regulations. A lot of the changes the report recommends would be facilitated by regulatory adjustments, but the report doesn’t come right out and say so – or at least I haven’t found where it does. The Council would understandably resist such a recommendation – the last round of regulation changes was a painful experience – but it’s still something that should be considered. The last time round, some useful changes were made – notably the insertion of provisions for early identification of consulting parties, scoping, and the like, which are precisely the aspects of the process that have been ignored by most agencies and SHPOs (the latter largely because of NPS direction). But the 2000 regulations also introduced or retained a lot of little nitpicky steps, or perceived steps, in the process, and it may not be possible to reform the process without fixing the regs.

Finally, as I’ve also argued in Our Unprotected Heritage and hence won’t expound on here, I don’t think it’s possible to really fix 106 without reforming NEPA practice as well. Of course, it was not in Ms. Barras’ brief to go after the Council on Environmental Quality (CEQ) as well as the Advisory Council, but seriously, I think we’ll spin our wheels trying to reform 106 on its own, and 106 by itself is such small potatoes that nobody in Congress is likely to promote such reform either – or if they do, it will probably be nonsense reform. But then, it’s naïve to expect much more of Congress these days anyhow.

All in all, I’m glad to see Back to Basics out on the street, and I hope somebody in authority pays close attention to it.