Paying SHPOs to Consult? The ACHP Interprets the Law but Fails to Advise

The Advisory Council on Historic Preservation (ACHP) has recently – well, I think it was recently; like the good historical organization it is, the ACHP didn’t bother to date it – issued a legal opinion on whether it’s OK for federal agencies to pay State Historic Preservation Officers (SHPOs) for their advice and assistance in the conduct of project impact reviews under Section 106 of the National Historic Preservation Act (NHPA). The opinion doesn’t seem to be available directly through the ACHP web site (www.achp.gov), but I presume it can be obtained upon request.

The bottom line is that the ACHP says yes, it’s OK for agencies to compensate SHPOs for the work they do in conducting Section 106 review. The statutory authority for such compensation is actually pretty clear; Section 110(g) of NHPA authorizes each federal agency to:
… include the costs of preservation activities of such agency under this Act as eligible project costs in all undertakings of such agency or assisted by such agency. The eligible project costs may also include amounts paid by a Federal agency to any State to be used in carrying out such preservation responsibilities of the Federal agency under this Act, and reasonable costs may be charged to Federal licensees and permittees as a condition to the issuance of such license or permit (emphasis added).

The opinion points out that compliance with Section 106 is a pretty basic part of carrying out an agency’s responsibilities under the act, so clearly agencies are authorized to pay SHPOs for helping them do it. Usefully, the opinion stresses that Section 106 compliance is exclusively the responsibility of federal agencies. Whether paid for it or not, SHPOs don’t (properly) make determinations or otherwise call the shots under Section 106; they advise and assist agencies in doing so.

I suppose it would be asking more of a legal opinion than such an opinion can deliver, but it would be nice to see the ACHP go a bit beyond the letter of the law and provide some advice (yes, advice!) about some of the issues that naturally come up, or ought to come up, in connection with agency compensation to SHPOs.

First, of course, is the question of whether having the feds pay the SHPO to help review projects compromises the SHPO’s independence and ability to (in the really quite silly words of the Section 106 regulations) “reflect the interests of the State and its citizens in the preservation of their cultural heritage.” The ACHP apparently thought about this question, because the opinion notes that the National Park Service (NPS) has been paying SHPOs for decades out of the Historic Preservation Fund, “without raising concerns that SHPOs are somehow compromised by it in their Section 106 role.” The ACHP cites no source for its assurance that no concerns have been raised. I have a hunch that there are a few people out there among the citizens whose interests in cultural heritage the SHPOs are supposed to reflect who do have concerns about how independent an SHPO can be in reviewing NPS projects when NPS controls the SHPO’s federal purse-strings. I even suspect that there may be an SHPO or two who’s troubled by this relationship. But I guess such concerns have never been “raised” to a level discernible by the ACHP. And even if one is untroubled by the NPS-SHPO relationship, it doesn’t necessarily follow that one ought not to wonder about SHPO independence if an agency with real money and political clout starts lining their pockets. Some thoughts on how to ensure SHPO independence and responsiveness to citizen concerns would be welcome, should the ACHP have any.

Then there’s the question about just what an agency should pay an SHPO to do. In another opinion, some years ago, the ACHP said that agencies didn’t need to reimburse Indian tribes for the expenses they incur in consultation, representing their own tribal concerns, but should compensate them for work that was on the order of what a contractor might do, supplying substantive data or services. Should the same rule apply to SHPOs? But what authority does the SHPO have in Section 106 review if he or she isn’t acting on behalf of the state and its citizens? If an agency is going to pay an SHPO, but not for representing the concerns of the state’s people, what precisely does the agency actually expect the SHPO to do?

Underlying all this is the almost never-asked question of what the SHPO’s role should be in Section 106 review. The less sophisticated federal agencies, and perhaps the majority of non-federal entities like developers who get their projects reviewed because they want federal licenses or assistance, tend to have a pretty straightforward notion of the SHPO’s role: it’s to sign off on projects, approve plans, issue “clearances.” The more sophisticated agencies use fancier language to mean the same thing: the SHPO is expected to concur or not concur in determinations, and execute agreements. Which is, in part, more or less what the regulations say.

But the regulations since their revision in and around 2000 have also directed agencies to consult with SHPOs at the very beginning of a project review under Section 106, in planning how to involve the public (36 CFR 800.3(e)) and in identifying consulting parties (36 CFR 800.3(f)), as well as in establishing the scope of any work needed to identify historic properties and determine effects (36 CFR 800.4(a)). It is at this stage in review that an SHPO can be most helpful to an agency, and to the citizens that the SHPO ostensibly represents. The SHPO can help the agency and other concerned parties set the stage for effective consultation, get people together and talking so that problems get identified and resolved before they become intractable. This would be worth paying for, and it’s a function that wouldn’t necessarily compromise the SHPO’s responsibility to serve the people of the state.

Neither agencies nor SHPOs focus much on the performance of these early planning responsibilities, and in the case of the SHPOs there’s a good reason for this. It goes back to those purse-strings that NPS holds. NPS periodically reviews the SHPOs to make sure they’re spending their federal money the way NPS thinks is right, and it requires the SHPOs to keep records of what they do. The last time I had occasion to look at the list of stuff NPS wants SHPOs to keep track of – about a year ago – I was grimly amused to find that the list hadn’t changed since about 1985. So it doesn't reflect the innovations of the 2000 (and later) Section 106 regulations), and what it does do is insist that SHPOs keep careful track of things like determinations of eligibility and effect, and the execution of memoranda of agreement. Reasonable enough things to keep track of, but by focusing on these interactions, which inevitably occur late in the process of review, NPS encourages SHPOs to focus on them too, to the inevitable exclusion of attention to early coordination.

So, SHPOs are convinced that they must carefully process each determination of eligibility and effect – whatever that may mean to a given SHPO, In the context of NPS oversight and direction. That’s a time-consuming business, and since it does tend to happen rather late in review, it’s likely to be fraught with difficulty, particularly if the agency (lacking useful early SHPO advice) has not gotten off to a good start in consulting concerned parties and establishing its scope of work. SHPOs become overburdened with requests for their concurrence in determinations, to say nothing of requests for “clearance” or its equivalent. Agencies get frustrated with the speed at which SHPO review proceeds. When asked how things can be sped up, the SHPO is likely to say: “Pay me so I can put on more staff.”

This sort of question and answer, I suspect, is what has led to the ACHP legal opinion. Now consider what may happen as agencies digest it. Agencies pay SHPOs. SHPOs lay on staff. Staff speeds up the processing of agency paperwork. All very well, except we ought, perhaps, to remember that Section 106 review isn’t supposed to be about the efficient processing of paper; it’s supposed to be about reasoned consultation to balance the interests of preservation and other public values. And of course, paying for the processing of determinations and agreement documents inevitably raises the specter of conflict between the SHPO’s duty to his or her state’s citizens and to the agency with which he or she is contracting.

We’re already well along in the process of turning SHPO offices into paperwork processing mills, whose driving priorities are turning reviews around, getting the paper out the door. I’m afraid the ACHP’s legal opinion – correct as it is – is going to exacerbate this process.

It’s really time – it’s been time for a decade or more – for the parties who oversee how things are done under NHPA – that is, NPS and the ACHP, with the agencies, SHPOs and, critically, non-governmental interests – to step back and take a hard look at how the system’s working, and how it can be made better to fulfill the purposes of the statute. I know, I know, the ACHP has undertaken reviews from time to time under various authorities, but these tend to be very internal-to-the-government, and they tend to produce easily ignored fluff. And they look outward and criticize the agencies; they don’t look critically at how the ACHP, NPS, and SHPOs themselves do their business.

We ought to have a system in which agency payments to an SHPO, if they must be made, are made not to accelerate the processing of determinations of eligibility and effect or the conclusion of agreements, but to inform early agency planning – to help make sure that all the appropriate consulting parties have been identified and brought into consultation, and that the agency, with those consulting parties and the public, has done a good job of scoping its identification and effect determination work. That, I think, could both speed up review and make it more meaningful and responsible; it could not only better fulfill the agency’s responsibilities but also help the SHPO really “reflect the interests of the state and its citizens in the preservation of their cultural heritage.” The ACHP legal opinion certainly doesn’t preclude that sort of arrangement, but SHPO operations under NPS oversight don’t encourage it. That’s a problem that the ACHP ought to think and advise about.