Making the Section 106 Regulations More Effective and Less Burdensome

Here are my June 2 comments in response to the

Advisory Council on Historic Preservation's request for advice

(See http://www.achp.gov/EO_13563.pdf).

Dear ACHP:


I'm writing in response to your notice of June 1, requesting public comments to assist with your retrospective review of the effectiveness of the NHPA Section 106 regulations. My comments are organized with reference to the nine questions you posed.

1. How should the ACHP periodically review its regulations to ensure they are serving their stated purpose efficiently and effectively? Please provide specific recommendations on appropriate outreach and timing.

The first step would be to rework the regs to make them much simpler and easier to understand (see below). Until that's done, it's going to be very difficult to "review" them in any meaningful, transparent way, because only specialists will understand them and be able to participate in review. Having reworked and simplified them, I'd suggest asking some outside organization -- NOT a preservation advocacy group like the NTHP, or an industry organization, or a contractor's lobby like ACRA -- to put together a stakeholders' group every 5 years or so to review the record of consultations and make recommendations. This might be a job for the Institute for Environmental Conflict Resolution. Of course, this review should be coupled with general public review and comment, and there should be some process for bringing the review to an actionable conclusion.

2. How can the ACHP reduce burdens and maintain flexibility for participants in the Section 106 regulatory process in a way that will promote the protection of historic properties?

First, and without the need for any regulatory or statutory changes, do the following:

a. Insist that the ACHP staff focus on serious issues and cut the crap. We should not, for example, be troubled in the process by wet-behind-the-ears ACHP staff members insisting that we really have to focus on avoidance before minimization before mitigation. If this requires re-educating your legal staff, do that, too.

b. REALLY beat up on agencies, SHPOs, and NPS as the SHPOs' overseer to focus attention on 36 CFR 800.3, initiating review. Try to get them all to understand that the process needs to start early, and that early consultation necessarily entails a degree of ambiguity about project plans, effects, and affected properties. Try to get them to understand that review really is supposed to be an open, public, consultative process, and that among the very first things an agency's supposed to do -- and an SHPO ought to help agencies to do -- is to identify and engage consulting parties.

c. Insist that NPS re-think the standards by which SHPO performance is judged; at the very least, the nonsense that SHPOs are required to keep track of should be consistent with the current regulations, not those left over from the 1980s. Try to get them to understand that however much they may be in love with National Register nominations and equivalent forms of hyper-documentation, these are seldom useful in real-world planning, and are not required by the regulations.

Preferably, however, change the regulations, and even better, seek changes in the statute (see below).

3. How can the process set forth in the Section 106 regulations better achieve positive preservation outcomes?

The question implies that the process is SUPPOSED to result in "positive preservation outcomes," and that strikes me as not necessarily true. It's also very ambiguous: "positive" in whose eyes? Have you forgotten that the ACHP is ON Historic Preservation, not FOR it? The process should be aimed at achieving outcomes that are broadly accepted as being in the public interest; it should NOT be aimed at achieving some abstract measure of historic preservation goodness. This being (I think) the case, the process should be revised to make broad, early, systematic consultation much easier to do, with truly meaningful participation by all parties, aimed at reaching agreed-upon results. In other words, it should emphasize what makes Section 106 review nearly unique in the federal system -- consultation -- and de-emphasize a lot of the fol-de-rol that inevitably comes into play when one insists on seeking "positive preservation outcomes."

4. How can the regulations be better harmonized with other federal environmental review procedures, such as the National Environmental Policy Act?

By actually relating to them. Presumably CEQ is going through an exercise similar to the ACHPs, so there may perhaps be opportunities for mutual revisions of regulations to make them more compatible. The ACHP ought to work on CEQ to get it to adopt a consultation-based approach to NEPA review, and then embed 106 review within it.

5. How can the ACHP ensure that the Section 106 regulations are consistent with and coordinated effectively with other regulations promulgated by the National Park Service pursuant to the National Historic Preservation Act?

Like what? I'm afraid there is a subtext here: "NPS good; cannot be questioned; ACHP must be consistent with good NPS, otherwise ACHP bad." BS. NPS regulations need fixing just as much as the ACHP's do, and NPS has shown brilliantly over the last several decades that its only coordinative capacity lies in its anatomically impressive ability to pat itself on the back. Your review should include review of all NPS regulations that relate in any way to Section 106 review, and you should make recommendations as to how THEY can be made less burdensome and more effective. NPS can then happily spend the next decade or so ignoring them.

6. How can the ACHP ensure that information developed to support findings under the regulations is guided by objective scientific evidence?

OK, I know that's in the Executive Order so you've got to address it, but it's really only marginally relevant. Trying to find "objective scientific evidence" as the basis for findings about, say, visual effects on the ambience of a historic district is like trying to catch a will-o'-the-wisp in a jar. It's a waste of time and will just frustrate everyone -- AND tend to make the process inaccessible to the public, which mostly is not made up of scientists, is not objective, and doesn't necessarily judge "evidence" the way scientists do. What the ACHP COULD do is look to the SOCIAL sciences -- anthropology, cultural geography, sociology, and the hybrid disciplines that study decision making and public engagement, both within and across cultural, social, and economic groups, and try really hard to make the 106 process reflect the best that these sciences have to offer.

7. Should performance metrics that demonstrate agency compliance and document Section 106 outcomes be developed? Please cite specific areas where metrics are needed.

Not just no, but hell no. "Performance metrics" applied to historic preservation have already resulted in agencies wasting time trying to calculate what percentage of historic properties under their control have been preserved, and by how much. Utter nonsense, and even more nonsensical when applied to something as necessarily flexible as Section 106 review. The only meaningful metric is the answer to the question: "did we or did we not, in this case, reach a conclusion that was broadly accepted as being in the public interest?" If you can count up the times you did and the times you didn't, I guess that would be of some interest.

8. Are there better ways to encourage public participation and an open exchange of views as part of Section 106 review? Please cite specific areas where improvements could be made and indicate what tools or mechanisms might be made available to achieve this goal.

"Better" ways? Better than what? Never mind; are there ways? Certainly. To start with, rigorously expunge the jargon and nit-pickery from the regulations. Specifically, do away with abstractions like "adverse effect" and "no adverse effect." When an agency wants to do something, the process ought to seek to find out whether anybody has a problem with it that's somehow related to historic preservation (broadly understood); if not, the agency ought to be good to go, but if there are problems, the process should be aimed at resolving them through consultation. It is outrageous to spend time and money arguing about whether something is or is not an adverse effect when nobody really gives a hoot whether the adverse effect occurs or not. It is equally outrageous to have an effect that people think is terrible treated as "not adverse" because it's possible to make a lawyerly argument that it doesn't "diminish the integrity of the property's location, design, setting, etc. etc. etc." The regulations are awash in such abstractions, and the related NPS regulations are even worse. Secondly, train your people to engage the public, and insist that SHPOs do likewise (Ridiculous as it is, they are, according to the regs, supposed to represent the people of the state). And restructure the regs to force such engagement. There is a lot of literature and expertise out in the world about how to engage people in defining and resolving disputes; the ACHP staff should become expert in it, and promote its use by others.

9. How else might the ACHP modify, clarify, or improve the regulations to reduce burdens and increase efficiency?

Oh, let me count the ways! To start with, think about restructuring the regs to address different project or program types in different ways. A project conducted directly by a federal agency is different from a project an agency assists, and both are different from projects that agencies permit. Procedures tailored to each type might be helpful. And/or try to build systems for determining the extent to which a given project outrages public sensitivities, and give projects that do a lot more rigorous review than is given those that don't. Whatever is done should be done in concert with CEQ, so that reforms are reflected both in 106 and NEPA, with EPA so they're reflected in the implementation of CERCLA, RCRA, and their toxic kin, and with the land managing agencies so they're reflected in planning under laws like FLPMA.

Seek ways -- and I realize that it would be hard and tricky -- to do away with the noxious practice of letting project proponents hire and fire those who analyze the impacts of their projects. Proponents doubtless need expert advice and advocacy, but it's ridiculous to pretend that a self-understood member of a proponent's planning team, who can be canned if he or she doesn't give the proponent's preferred answers, can objectively analyze impacts or reflect public concerns.

Ideally -- and this, I know, would require legislation -- uncouple the consultation process from the National Register and let it address WHATEVER is of concern to people about the cultural environment. Let the Register go off and be its happy, irrelevant self, while Section 106-type consultation (or rather, an improved version thereof) is applied to resolving concerns about impacts on "cultural resources" broadly defined, or on whatever people value in the environment

Thanks for the opportunity to comment.

Tom King