Tom King’s CRM Plus --
Ruminations on "cultural resource management," environmental impact assessment, and related esoteric topics, by a curmudgeon who seldom has anything good to say about anything.
Wednesday, January 18, 2017
Two More HAT Award Runners-Up
All the contestants have now given me permission to post their entries, so here are two more. There'll be two more tomorrow, insh'allah, and then THE WINNER on January 20th.
Thanks again to all the participants, and the judges.
Entry by Lydia Costello
Jan. 10, 2017
we embark upon a future of Donald Trump as President of the United States there
are questions regarding the future funding of historic preservation activities
and initiatives. As a student I believe concern
should focus on the classroom.
I am a junior studying Historic Preservation
at Roger Williams University in Bristol, Rhode Island. In the fall of 2015, The
1772 Foundation approached Roger Williams University with a grant to research
the effectiveness of The National Council of Preservation Education.
1772 Foundation’s mission is to ensure protection of historic buildings and
farmland within the northeast, with matching grants for Connecticut, New Jersey
and Rhode Island. The grant’s research objective was to determine which
programs offered Historic Preservation Real Estate Finance courses. Real Estate
Finance was decided as the most under studied aspect of historic preservation.
The 1772 Foundation saw the benefits of a course like this would have on
students. Research was conducted on every university, college and educational
institution that provides an undergraduate degree, graduate degree and/or
certificates within historic preservation. Four students were charged to review
each institution’s course selection and syllabus.
outcome of the research was shocking lack of uniformity among programs. My
colleagues and I began to notice the absence of common classes within the
fourteen undergraduate and thirty-two graduate institutions. One would think
there would be a foundation courses or some kind of curriculum outline however we
found the contrary. With this information The 1772 Foundation offered a course
at Roger Williams University titled, “ARCH 530/HP 530 Project Development and
Finance”. The outcome of the course was very successful. The students both
graduate and undergraduate received invaluable information. This course has now
been opened up to law and business students as well.
one of four students assigned to this project my eyes were opened to the vast
differences in programs and education. Setting up foundation courses or an
accreditation process for undergraduate and graduate programs would be
extremely helpful for employers to better understand the individual’s
education. This could provide some competition or rigor between programs. While
researching we began to see a trend of schools who were much more archeological
based rather than structurally. Some were very history heavy while others
focused on planning and conservation.
Preservation is the endeavor that seeks to preserve, conserve and protect
buildings, objects, landscapes or other artifacts of historical significance. I believe historic preservation is above and belowground,
tangible and intangible however, my education does not go past the structure. I
think that’s a huge disservice to students. Historic preservation
undergraduates should be getting an education in structural integrity,
conservation, cultural resource management, community planning and archeology. Within
these sections are subsections of documentation, surveying, oral history, and archival
research to name a few. Leaving graduate schools to have more specificity to
allow students to hone their knowledge in a certain area. We can accomplish
this within every historic preservation program with foundational curriculum or
accreditation. The biggest lesson in historic preservation that I’ve learned
thus far is every moment is a teachable one.
communities, neighborhoods and citizens opens the door for positive perception
of historic preservation. Historic preservation is seen in a negative light in
many communities throughout the United States. In the summer of 2016 I was an intern
for the Newport Historic Preservation Planner, Helen Johnson. I constantly
overheard members of the community speaking negatively towards historic
preservation and the “hoops” it requires for a citizen to simply change a part
of their structure. Preservation is intended to be positive based planning not
to challenge and hinder citizens. We need to begin investing in our communities
by providing seminars and meetings on helpful and meaningful topics within
transition of leadership in the United States brings up many questions. How organizations
such as the National Trust or National Environmental Policy Act will change and
evolve is not known. The way historic
preservation functions today through government funding could change under
Donald Trumps presidency. Our systems today are flawed and less than adequate
funding will be detrimental to the success of historic preservation. The goal
of interpreting tangible and intangible history is the mission of every
preservationist and must be preserved as a priority in the new administration.
question that needs to be addressed how will federal organizations such as the
National Trust for Historic Preservation or more importantly the role of State
Historic Preservation Officers function in the new administration. The United
States has not seen a government-affiliated organization privatize, I believe
historic preservation can be the driving force.
is the beginning of the conversation. It will take many groups of professionals
to come together and decide on the path of NEPA and Historic Preservation Act. I
am writing this today as a student who believes historic preservation does have
a future. I am not sure what the next four years will bring. I do know that we
will not allow our work to preserve be hindered by a change in political power.
The way historic preservation of our cultural and physical being is taught and
supported will ensure that the United States of America has an accurate history
of who we are, what we believe and how we live.
The Case for the Fantasy Federal
Historic Preservation Law of 2017:
Musings on How to Make a Good Thing
S. Joe Griffin
submission to the HAT contest is based on the central idea that historic
preservation only matters if someone cares about the resources that are being
preserved. The submission also addresses
some of what I consider to be the most glaring deficiencies in the existing
Section 106 process.
there is a cultural resources professional alive who hasn’t encountered a
construction crew, or an engineer, or a developer who laughs at the idea that
some old building/ old rocks/ old irrigation ditch/ old neighborhood/ etc. is
historically significant. Who cares
about all this stuff really? This is a
fundamental question, and our profession must pay close attention to it,
especially as we usher in an era where federal expenditures and requirements
are looked at with increased scrutiny.
Many practitioners approach historic preservation from the smug premise
that the general public simply doesn’t know what is important about the past,
and it is up to our enlightened cadre to bring it to light. You may not care about it, but when an
architectural historian has determined that we must carefully document a building
constructed by a locally prominent architect from the early twentieth century, this
documentation is really for your own good.
the historic preservation community has an obligation to educate the public
about interesting facets of the past, and to identify significant resources
that may not be obvious. How can we
find a middle ground that allows for education and exploration, but that does not
stray too far from the realm of public interest into specialist interest? How are cultural resource managers expected
to work out what is and is not interesting to the public? The Fantasy Law attempts to address this
challenge with state-wide interest surveys, and by prioritizing consultation
and the identification of as many potentially interested consulting parties as
us to the current National Register Criteria, four simple categories into which
all significance must fit; association with an important event or person,
artistic or engineering cleverness, or data potential; and the endlessly
mysterious aspects of integrity, some permutations of which are acceptable,
some others are not. Perhaps
counter-intuitively, these seemingly open-ended categories wind up being
restrictive in practice, introducing a heavy bias toward the opinions and
preferences of professionals rather than communities. The American public, communities, and tribes
are often not able to easily express their values in the limited terms of the law,
and their voice loses volume as a result.
The Fantasy law does away with these limited criteria and integrity
considerations, focusing instead on the ways in which a resource is valued by
different groups—including professionals who may have an intellectual or
the existing process tries to get at these values, after all the first step in
the Section 106 process, as described under 36 CFR 800.3, includes the
identification of consulting parties. In
practice, however, this is generally given pretty brief consideration. The regulations require the Agency to
identify the correct SHPO for instance; this is an easy section to gloss over. Identifying potentially interested tribes can
be straightforward in some cases, tricky in others (e.g. states where
significant and large scale forced displacements occurred or where numerous
small tribes exist with overlapping territories), but always important. Fortunately there are many resources available
in various states to help with this and generally this isn’t terribly time
consuming either. Identifying other
potentially interested groups and individuals is immensely harder. Ambitious practitioners may contact
historical societies and local museums, but more often public involvement is
piggybacked on NEPA public meetings or given some other very minor
consulting parties is vital, and it is obviously appropriate to put it at the
very beginning of the 106 process. On
the other hand, it may not be obvious at the outset of a project whom should be
consulted. For instance, suppose that
construction would occur in a neighborhood that superficially looks like any
other, but that was historically occupied by a particular ethnic group. This information will likely come to light
quickly, but it may not be easy to find members of that group to speak with,
much less a central voice who speaks for the community. For this reason, identification of consulting
parties should be on-going, and made a chief priority throughout the
process. The Fantasy Law does just that.
like the Endangered Species Act, the NHPA is almost entirely toothless unless
someone sues. Even then, a cursory
glance at NHPA case law highlights the fact that the government only loses lawsuits
when it can be shown that an agency failed to follow the process, never when
consulting parties disagree with conclusions or decisions made by an agency. In other words, substantively inadequate work
is nearly bulletproof, so long as all of the boxes got checked along the
way. The Fantasy Law addresses this by
providing oversight from a federal regulatory agency, not individual states
which, thanks to the supremacy clause in our Constitution, are not likely to be
empowered to regulate the federal government.
important aspects of the existing processes are carried over into the Fantasy
Law. Like the NHPA, the law applies only
to Federal Agencies, leaving the individual states to regulate themselves and
their citizens as they see fit. The
structure of the process is similar, involving inventory, effects analysis, and
resolution of effects. Finally, though
the role of the SHPO is supplanted by a new federal agency, their primary
function carries on (and the law benevolently directs the federal government to
absorb all those hard working state employees).
further ado—I present the . . .
Historic Preservation Law of 2017
This law establishes
a Federal Agency called the Federal Office of Historic Preservation (FOHP),
with branches in each state. Each state
branch of the FOHP is a Federal agency with authority to regulate the actions
of other Federal Agencies. The FOHP is
responsible for project review and for the establishment and maintenance of
both historic resource record centers and the state historic interest surveys. Each state branch of the FOHP is expected to
absorb and incorporate the staff and resources of existing State Historic
Preservation Offices, as possible. For
projects which occur entirely on Federal Tribal Trust Land, the Tribal Historic
Preservation Officer may assume the role of the FOHP, if the tribe determines
that doing so is in their best interest.
years of the passage of this fantasy law, each state branch of the FOHP shall
conduct state-wide historical interest surveys of the residents of their
state. The interest surveys are intended
to identify themes, events, and locations that are valued by the residents of
each state. The surveys provide a
starting point for historical resource consideration by highlighting resources
and ideas that are important to the general public. For this reason, the surveys must be updated
no less frequently than every five years.
These surveys are intended to provide a broad perspective to the
consultation processes outlined below, and do not replace full and complete
projects will be subject to the following regulatory process:
Inventory Scoping and Planning
jurisdictional project. All projects
that are funded or permitted by the Federal Agency, or those that occur on or
pass through Federal land, are subject consideration. If more than one Federal Agency is involved,
one shall take responsibility for this process as lead agency.
the scale and degree of Federal involvement in the project. The level of effort for historic resource
consideration should be scaled appropriately.
degree of Federal involvement is determined based on the Federal cost as a
fraction of total project cost, and the proportion of the project that would
occur on Federal Land or that would require a Federal permit or permission.
project scale is based on total project cost in dollars. This calculation is based on projected costs
or grant or allocation funds, and is subject to review to ensure that a larger
project is not being artificially separated into smaller undertakings.
interested consulting parties.
Consulting parties are any groups or individuals who can reasonably
ascribe significance to an area or to properties located in whole or in part
within an area. This effort should be on
going throughout the inventory process.
Starting with an initial identification effort made at the beginning of
the inventory process, the Federal Agency should continue to seek additional
parties with a potential interest as the process progresses.
the state and Federal Historical Interest surveys to identify themes, events,
or locations that are potentially significant at a state or Federal level.
consultation. Working collaboratively
with consulting parties, the Federal Agency shall identify properties that are
significant on one of the following bases, in order of descending significance:
property or location is fundamental to the self-identification of a group or
property or location is highly valued by a group or community
property or location is of high intellectual interest to a group of community
properties may not be known to the groups or communities that would value them,
if their existence were known.
Collaboratively with the groups or communities with an express interest
in the property or location, the Federal Agency shall identify an Investigation
Area of Potential Historical Interest (IAPHI), and develop and implement a
physical inventory of the IAPHI.
a reasonably scaled effort to identify significant properties has been completed,
the Federal Agency, working collaboratively with the consulting parties, shall
consider whether the undertaking would cause potentially cause effects to such
the Federal Agency determines that the project would not affect significant
properties, the project may proceed to Final Review. If the Federal Agency
determines that it is reasonable to conclude that a project would affect
significant properties, the Federal Agency shall determine whether or not it is
feasible to avoid affects to such properties.
Avoidance Feasibility Process
9. The Avoidance Feasibility process has two
steps. The first step is to formulate one or more alternative approaches to a
project that would avoid or minimize effects.
second step is to determine whether an avoidance alternative is feasible. Such an alternative is considered feasible if
the following conditions are met:
avoidance alternative is not significantly more costly than the economically
preferred plan. As used here, the term
‘significantly more costly’ means: A 5%
increase to the Federal share of the project cost is considered not
significantly more costly. For projects
subject to Federal permitting, or for which access to Federal land is sought, a
1% increase to the total project costs is considered not significantly more
costly. The reduced Federal involvement
justifies this difference.
functionality of the avoidance alternative is not diminished from the
economically preferred plan, or any such diminution of efficacy is acceptable
to the Federal Agency and the project proponent.
the Federal Agency determined that avoidance is preferred, even if either or
both of the above conditions are not met.
avoidance is feasible, the project may proceed to Final Review. If avoidance is not feasible, the Federal Agency
shall consider mitigation.
avoidance is not possible, the Federal Agency shall seek to develop a
mitigation plan collaboratively with consulting parties. The mitigation may take any form, but should
be specifically directed towards correcting anticipated impacts.
Final Review and Approval
Federal Agency shall submit a summary report (SR) to the FOHP that will:
the results of the scoping work
efforts made to identify significant properties, analyze effects, and avoid or
mitigate effects, as applicable.
a plan for discoveries of significant properties during project implementation
or for post review disclosures of properties or significance by consulting
FOHP shall review the SR for completeness and adequacy. The FOHP shall respond to the Federal Agency
with their confirmation of completeness and adequacy, or with comment.
the FOHP provides a Federal Agency with a confirmation of completeness, the
project may proceed, pursuant to any conditions or plans outlined in the SR.
the FOHP provides a Federal Agency with comments, each comment shall explain
the specific incompleteness or inadequacy and suggest a course of action to
resolve the comment.
the Federal Agency chooses to adopt the course of action suggested by the FOHP,
the project may proceed, pursuant to any conditions or plans outlined in the SR
and FOHP comments.
the Federal Agency chooses not to adopt the course of action suggested by an FOHP
comment, the Agency, the FOHP, and any appropriate consulting parties shall consult
directly for a period up to 180 days. If
the Agency and FOHP cannot reach agreement by the conclusion of this
consultation period, the Agency may either continue consultation, or terminate
consultation and proceed with the project.
An Agency shall not terminate consultation without a full 180 days of
Human Remains and Burials
American human remains found on Federal land shall be treated in accordance
with the Native American Graves Protection and Repatriation Act.
human remains are found to exist in the IAPHI, outside of Federal land; and the
Agency determines that they would be affected by the project, but may be
feasibly recovered and moved, the Agency shall take the following steps:
local law enforcement and determine whether the remains constitute a crime
scene. If the remains are found to
constitute a crime scene, the Federal jurisdiction under this process ends.
whether the remains may be individually identified and direct lineal
descendants identified. If such
descendants are identified, they shall be determined to be the responsible
direct lineal descendants cannot be reasonably identified, the Agency shall
seek to identify a group or community with which the remains are most likely
affiliated. If such a group of community
is identified, that group or community shall be determined to be the
the remains are equally likely to be affiliated with more than one group or
community, those groups or communities will be given the opportunity to
designate one group which will assume responsibility for the remains. If the groups cannot reach agreement, the
Agency shall assign one group to be the responsible party based on a preponderance
no affiliation can be demonstrated, interested groups or communities will be
given the opportunity to take responsibility for the remains, if the Agency
determines that such a delegation of responsibility is appropriate.
responsible party shall make a recommendation to the Agency regarding the
ultimate disposal of the remains, or they may be given direct custody of the
remains. If the responsible party
requests that the remains are reinterred, the Agency shall provide reasonable
assistance in accomplishing this.
the responsible party declines to take possession of the remains, and makes no
recommendation as to their ultimate disposition, the Agency shall make the
remains available for scientific research, provide for respectful re-interment,
or leave the remains in place.
is found whenever the FOHP finds that a Federal Agency has not fulfilled their
obligations with regard to process or whose consideration is deemed less than a
full good-faith effort.
the FOHP finds non-compliance, they must notify the Federal Agency within
thirty days of their observation of the non-compliance.
Federal Agency will then have 60 days to resolve the non-compliance.
the Federal Agency cannot resolve the non-compliance to the satisfaction of the
FOHP, the project shall be suspended while the FOHP and Federal Agency enter
into binding mediation by a disinterested third-party.