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Monday, November 19, 2012


I’m reliably advised – with authoritative supporting documentation provided – that a State Historic Preservation Officer (SHPO) in a state that will remain nameless uses an “SHPO Clearance Form” to expedite “compliance” (sic) with Section 106 of the National Historic Preservation Act (NHPA) by federal agencies and, apparently, applicants for federal assistance and permits. 

The form is two pages long; the “applicant” fills in blanks identifying the project and saying what county it’s in, then offers his or her own determinations as to the eligibility of affected properties for the National Register of Historic Places and as to the nature of the project’s effects on them (“No effect,” “ No adverse effect” or “Adverse effect”).  He or she then sends the form in to the SHPO, who signs either to concur or not concur in the applicant’s determinations.  And hey presto!  You’ve finished Section 106!

Very efficient, SHPO; great work.  Except, of course, that you’ve systematically directed the applicant into non-compliance with Section 106 and its regulations (36 CFR Part 800).

How?  Let me count the ways:

1.       Nowhere in NHPA or in 36 CFR Part 800 is there any provision for SHPO “clearance.”  The Advisory Council on Historic Preservation (ACHP) has made this clear not only in the regulations but in various guideline documents; I’ve tried to make it clear in every relevant textbook I’ve written since 1998; the ACHP and others (Claudia Nissley, myself) have tried to make it clear in our training.  

2.       This is not merely a technical quibble.  Section 106 review is fundamentally about multi-party consultation.  Reducing it to an exchange of “clearance” documents between an “applicant” and the SHPO cuts everybody but the “applicant” and the SHPO out of the loop.  That’s contrary to the core principles upon which Section 106 review is based.

3.       It also encourages federal agencies and others to break the law by ignoring:
a.       36 CFR § 800.3(e), which directs agencies, when they initiate Section 106 review, to plan how to involve the public (“clearance” effectively cuts the public out).
b.      36 CFR § 800.3(f), which directs agencies initiating review to “identify other consulting parties” – that is, parties other than the SHPO, including Indian tribes or Native Hawaiian groups, local governments, and anyone else who’s “entitled” to consult – “entitlement” being based on interest in the project or its effects on historic properties (36 CFR § 800.2(c)(5)).  “Clearance” cuts out all these consulting parties.

4.       The “clearance” process in this case goes farther by encouraging “applicants” to ignore:
a.       36 CFR § 800.4(a), which requires agencies to consult with SHPOs (and Tribal Historic Preservation Officers or THPOs, also ignored in this form), in establishing the scope of their historic property identification work, including:
                                                               i.      Establishing what the Area(s) of Potential Effect (APE) are;
                                                             ii.      Reviewing background data, and
                                                            iii.      Gathering and considering information held by other parties, notably Indian tribes and Native Hawaiian groups regarding places of religious and cultural significance to them;
b.      36 CFR § 800.4(b), which requires agencies to consult with SHPOs, THPOs, and others in conducting a reasonable and good faith effort to identify potentially affected historic properties, based on the scope of work developed per § 800.4(a); the “clearance” form doesn’t even ask the “applicant” what he or she has done to identify historic properties;
c.       36 CFR § 800.4(c), which requires agencies to consult with SHPOs, THPOs, and others in determining which potentially affected properties are eligible for the National Register; the “clearance” form reduces this to a check-box interaction between the “applicant” and the SHPO;
d.      36 CFR § 800.4(d), which requires agencies to consult with the various parties in determining whether eligible properties will be affected (again reduced by the “clearance” form to the applicant’s box-check and the SHPO’s concurrence); and
e.      36 CFR § 800.5, which requires consultation in determining whether such effects will be adverse (another check-box on the form)

OK, by now your eyes are glazing over, so let’s get down to the nitty-gritty.  By using this “clearance” form, the SHPO is screwing up in two large ways.

1.       He or she is setting things up so the taxpayers who pay his or her salary can have no influence on federal agency decision making under Section 106.  This seems like a pretty strange thing for an ostensible public servant to do – and just to throw another regulatory cite at you, it’s inconsistent with 36 CFR § 800.2(c)(1), which says that the SHPO is supposed to “reflect the interests of the state and its citizens in the preservation of their cultural heritage.”  Though maybe this SHPO can somehow magically reflect such interests while keeping those interested in the dark.

2.       By encouraging agencies not to do what the regulations quite explicitly require them to do, the SHPO is setting agencies and other “applicants” up for litigation and other challenges to their project planning, which can have serious fiscal implications for all concerned.

And I suppose it’s worth noting that he or she is probably facilitating the destruction of a lot of historic properties, but maybe I’m just picking nits.

Bottom line: the regulations have never provided for SHPO clearance, and the revisions of 1999-2001 (with which it looks like this SHPO is unfamiliar) considerably clarified the fact that SHPO clearance is not the name of the 106 game.  Ignoring the regulations, and setting up one’s own happy little process that keeps the public in the dark while the SHPO and agencies pass paper back and forth to one another, is both reprehensible and, I’d say, stupid.  Reprehensible because it encourages illegality, ignoring project impacts, and keeping those who pay one’s salary in the dark about things that are important to them; stupid because one will eventually get caught, and the results of doing so are likely to be very uncomfortable.


Anonymous said...

I recently gave a presentation that focused more on the main points regarding Section 106 to non-practitioners (e.g. project managers, engineers, and urban planners) and it irked me when they mentioned the checklists they complete to determine whether they need “SHPO clearance.” I requested to see these checklists. Could you recommend guidance documents or sections in the books you have written that explain the incorrect use of SHPO “clearance”?

Thomas F King said...

There's some stuff in "Cultural Resource Laws and Practice" and "Federal Planning and Historic Places" about "SHPO clearance" and how it ain't Section 106, and I've tried to emphasize this point when drafting guidelines and such for agencies like the General Services Administration and Department of Veterans Affairs. But the National Park Service, which sets "standards" for SHPOs, happily ignores such reminders and continues to encourage the SHPOs to award and withhold "clearances." And the Advisory Council, which ought to be concerned about this noxious practice, as usual just rolls over and scratches its own belly.