Wednesday, November 16, 2011

What Constitutes a “Project” Subject to Review under Section 106? Some Useful Guidance from the ACHP

 Under Section 106 of the National Historic Preservation Act (NHPA), federal “undertakings” are reviewed for their effects on historic properties, which are then (we hope) resolved through consultation. “Undertaking” can mean lots of things, but “projects” – specific developments, construction operations, land-use activities addressing more or less particular pieces of land – are unequivocally included if there’s some kind of federal involvement in them.

But when you have a project that involves a federal agency but also extends into geographic or other areas where the agency has no jurisdiction, where does the “project” stop for purposes of Section 106? For instance, if the Forest Service or Bureau of Land Management is considering a road across federal land to permit Oliver Oilrig to access the private land on which he wants to drill a well, is the “project” just the right-of-way across Federal land, or the right-of-way plus Oliver’s property?

I was recently asked about this, and – my files and memory failing me when I searched for the antique examples of cases where the matter had been more or less worked out with agencies like the Forest Service, Bureau of Land Management, and Corps of Engineers – I suggested that my interlocutor contact Javier Marquez, Associate General Counsel for the Advisory Council on Historic Preservation. Javier responded with admirable promptness, sharing a memo he had prepared some time ago that had never gotten distributed outside the ACHP and extending the invitation to share it more widely. Here’s what it says:


An important series of cases in the Fourth Circuit provide on point caselaw regarding the scope of “undertakings” whose effects must be considered under Section 106. The Fourth Circuit and judges in the district courts in Virginia have been particularly adamant in their opposition to the concept of agencies putting blinders on when defining the scope of the "project" subject to environmental review under Section 106. This is evident in cases dealing with segmentation. While the issue at hand is not technically a "segmentation" issue, the analysis attempts to solve the same problem: how to define the scope of the "project" whose effects must be considered.
 For example, in Crutchfield v. U.S. Army Corps of Engineers, 154 F.Supp.2d 878 (E.D.Va. 2001), the court held that the Corps could not issue a Clean Water Act permit for a wastewater treatment plant without first considering under Section 106 the effects of an associated sewer interceptor, even though the interceptor was not part of the permit application submitted by the County applicant. In determining whether the interceptor was part of the "project" subject to environmental review, the court saw the issue as boiling down to whether the specifically permitted plant had independent utility without the interceptor. Id. at 889. It held that it did not, since it served no rational need in its own right without the interceptor. Id. at 902. Accordingly, the court ruled that for Section 106 purposes "... the determination of the 'effect of the undertaking on any [historic property]' could not be properly made because the TC Interceptor was not considered part of the 'undertaking.'" Id. at 905. Accordingly, under Section 106, agencies must consider the effects of an entire, proposed development on historic properties. The entire development is the "project" for Section 106 purposes because the specific works permitted by the agency serve no rational need in their own right without the proposed, overall development they will serve.

 In a separate case cited by the Crutchfield court, the Eastern District of Virginia grappled with whether the Federal Highway Administration's funding of one expressway in Richmond, Virginia would require its consideration of the effects of a separate expressway that, while also in Richmond, did not have such Federal funding. River v. Richmond Metropolitan Authority, 359 F.Supp. 611 (E.D.Va. 1973) , aff’d, 481 F.2d 1280 (4th Cir. 1973). In declining to look at the two expressways as one "project" for Section 106 purposes, the court explained that "... if the Court concludes that the two highways each have such little value in their own right that their separate construction could be considered arbitrary or irrational, the Court will find them to be a single project." Id. at 635. The Fourth Circuit affirmed the court's opinion in a short, per curiam decision. Again, as explained above, if the separate construction of the specific works permitted by an agency have very little (if any) value in their own right separate from the overall development project they serve, the overall development project must be considered under Section 106. Without the overall development project, those specifically permitted works would serve no useful purpose.

Applying this rule to the case of Oliver Oilrig, it appears that if the proposed road serves no plausible purpose other than serving Oliver’s drill site, then the federal land managing agency (probably BLM or the Forest Service) must review the whole project, including Oli’s property and the effects of his drilling, under Section 106. If on the other hand the road will go on to provide access to a public campground or Sasquatch-watching site, then maybe Oli’s property can be excluded. How the courts (or agencies) would feel about made-up cases designed to demonstrate “independent utility” will doubtless be revealed in time.

The cases cited by Marquez are, of course, in the Fourth Circuit, covering Maryland, Virginia, West Virginia, and the Carolinas; they aren’t precedential in other circuits, but they can certainly be cited, and any judge will want to consider them. Federal agencies and applicants for federal assistance, permits, licenses and rights-of-way would be well advised to do the same.

Thanks, Javier; I think this will be helpful to a lot of people in understanding the scope and limitations of Section 106.


Darby Stapp said...

A related problem is the increasing use of "Not the Type of Activity with the Potential to Effect Historic Properties." I may not have that exactly right, but it is close. Unfortunately, the regs titled this section "No Potential to Effect," which is how the majority refer to it.

If the agency makes this finding, then the Section 106 process stops.

Although the regs are clear about what it takes to make this finding (e.g., assume you are doing your activity on a National-Register site, will there be an effect?), at least one agency in particular uses logic such as the following: "We surveyed this before, there were no sites, therefore, there can be no effect, therefore there is no potential, therefore, no need to continue the Section 106 process, or tell anyone that we even made this determination."

I think maybe ACHP has weighed in on this, but even if it has, it has no effect or even potential to effect, because certain agencies won't be bothered to know what ACHP has to say. Can you discuss this problem a bit?

Thomas F King said...

I don't think the ACHP has addressed this, though they probably should. I think I did write about it a bit in the last edition of CRM Laws and Practice, but I can do so some more for what (little) it's worth. It's not an entirely uncomplicated question, because there's a certain logic in the kind of determination you describe. The problem is to keep from getting carried away with it.