SECTION 106 THOUGHTS
S. Sydney Bradford
Since its passage in 1966, the National Historic Preservation Act has strengthened historic preservation, both within and without the National Park Service. Section 106 of the act was one of the law's beneficial innovations. That part of the law requires Federal agencies to submit plans for federally-assisted and federally-licensed undertakings affecting properties in the National Register of Historic Places to the Advisory Council on Historic Preservation for review and comment. Compliance with the preceding requirement is provided for by the Advisory Council's Procedures for Compliance, which were published in the Federal Register, February 4, 1975.
The time is here, it seems, to discuss the continuing development of compliance with Section 106, and by implication, Executive Order 11593. The following propositions might be considered if we want to test existing procedures and experiment with new approaches:
1. The National Park Service historic preservation mandate did not originate with the passage of the Historic Preservation Act.
Service preservation responsibilities are identified not only in the Service's Organic Act of 1916, but also in these laws:
Historic preservation responsibility and accomplishment have been National Park Service hallmarks since its founding. Naturally, the Service has made errors. But mishaps in the moon-landing program did not mean its staff was incompetent. Self-flagellation over miscues is destructive of morale. Section 106 should be recognized for what it is, but not at the expense of an honorable tradition.
2. Section 106 implementation procedures should be reasonable. Section 106's last sentence reads - "the head of any . . . Federal agency shall afford the Advisory Council on Historic Preservation . . . a reasonable opportunity to comment with regard to . . . [an] undertaking." The Service ought to prepare its own Section 106 compliance procedures and they should afford the Advisory Council a reasonable opportunity to comment on its undertakings. Since the Service has not prepared compliance procedures and has deferred to the Advisory Council in that regard, it is necessary to note that the Council's regulations minimize agency judgment. An agency's inability to implement well-considered decisions until they have been commented upon by the State Historic Preservation Officer inhibits the National Park Service in practical, day-to-day preservation. Recently, a part of the Crater's tunnel at Petersburg National Military Park collapsed. The Park is initiating an emergency archeological and historical research project which will be conducted by the Service's senior archeologist and one of its senior historians. Is it reasonable to have to receive State and Advisory Council comments before starting the project? Couldn't a project resume be submitted for each agency's information? That document could include a curriculum vitae for each major investigator. Once comments were received from the State and Council, they would be forwarded to the investigators for their consideration.
We should not forget that the executive order implicitly requires Federal agencies to organize preservation staffs. As things are developing, it would seem that a staff's main function will be to prepare compliance paper. Perhaps that is not a fair remark. But it certainly is true that all environmental legislation incorporates procedural requirements leading to studies and reports. Is it stretching a point, therefore, to suggest that procedural matters are beginning to supplant substantive ones - that multitudinous compliance requirements are distracting us from protecting a park's resources?
3. Advisory Council administration of Section 106 could be more flexible.
Under the Council for Environmental Quality's procedures for complying with NEPA, an agency determines whether an undertaking will have a major or minor impact. If a project will have a major effect, then an EIS must be written; if it will not be a major or controversial action, a negative declaration may be made after the preparation of an assessment has been afforded for public review. In the latter case, no documentation is forwarded from the initiating office. The courts have determined, moreover, that if an agency has complied with the procedures and its substantive decision is not arbitrary and capricious, the agency is in compliance. Couldn't this kind of procedure be used for Section 106?
Or could consideration be given to this approach? The Council would monitor an agency's annual preservation work by having its representatives make field inspections of projects. People, rather than paper, would be used in working with an agency. Council representatives would become partners. They would also become purveyors of the latest developments in preservation.
4. The criteria of effect and criteria of adverse effect in the Council's compliance procedures should identify degrees of effect and provide for appropriate courses of action for each degree of effect.
Perhaps the only requirement for an effect of minor degree would be that a complete record of the undertaking would be maintained in a park. Work of more than a simple kind would be subject to different kinds of reporting, and specific guidelines would give agencies an exact idea of the amount of paper work required for each degree of effect.
Another possibility is that the extent of a case report should be commensurate with the significance of the property involved. Not all buildings in the National Register are equally significant. Case reports for properties of local significance would be limited to one page.
5. The role of State Historic Preservation Officers in Federal preservation should be reconsidered.
This is not suggested because of any lack of respect for the State Officers, but because it is cumbersome for Federal agencies to be dependent upon their comments, as required by the existing compliance procedures. We should continue to submit projects to State Officers for their information but not be required to get their comments before submitting a case report to the Advisory Council.
The National Park Service employs talented and experienced people in many professional areas and their recommendations are considered in the origin and development of professional projects. Thus, if a project is developed in compliance with Council procedures and its substantive recommendations are not arbitrary and capricious, why should a SHPO have the right to make a comment that could delay or endanger the project? State Historic Preservation Officers should be informed about projects and have the right to comment on them, but the Federal agency must have the right, at its own peril, to accept or reject their comments.
6. Memoranda of Agreement for broad categories of work would make for more effective compliance.
A Memorandum of Agreement for maintenance would heighten park responsibility by making it all the more aware of its obligations under Section 106. Such a memorandum for the entire Service is presently under consideration.
But must Service compliance always be on a national basis? We in the Mid-Atlantic Region would be enthusiastic about developing a Memorandum of Agreement for restoration. Let a park, if it is interested, try a new method or idea. The Department of the Interior bears a special responsibility under the executive order to provide other agencies with preservation guidance, and perhaps the foregoing approach would better enable it to do that. An encouragement to experiment would stimulate park and regional staffs and would place their collective talent and expertise at the service of compliance.
7. Section 2(d) of the executive order requires Federal agencies to "initiate measures and procedures to provide for the maintenance through preservation, rehabilitation, or restoration, of federally-owned and registered sites at professional standards prescribed by the Secretary of the Interior." Thus, agencies must provide for the funding necessary to maintain properties in the National Register.
Some 2,000 structures in the Delaware Water Gap National Recreation Area have been surveyed and inventoried. The inventory has been studied by both the park and region and 33 properties, some including more than one building, have been identified as eligible for nomination to the National Register. Each property has been given a priority rating, proposed use, proposed preservation treatment, and preservation estimate. The total estimate for the work to be done on the properties of National Register quality is almost $3,000,000. Where is the money to come from? Will WASO develop a fiscal program to provide the necessary funds?
Let's take up the matter of use. The park has endeavored to find suitable occupants for many of the buildings on the priority list, but most of the buildings are in such a deplorable state that it would cost, on the average, from $5,000 to $10,000 to prepare a structure for occupancy. If occupants were found for ten structures, $50,000 to $100,000 would have to be spent just to prepare the buildings for use. Where will the money come from?
The preservation situation at Delaware Water Gap vividly illustrates the predicament of field areas. After striving to comply with Section 106, the parks get no money to implement their responsibilities. What kind of a fiscal approach will WASO devise so that responsibilities under Section 106 can be fully implemented?
Couldn't the Advisory Council help on the funding situation? It could not plead before Congress for a single agency, but couldn't it develop statistics identifying the number of registered properties administered by each agency? Furthermore, the Council's data could cite the average cost to maintain buildings, the average cost of complete restoration, and this material could appear in the Council's annual report and the data could be used by agencies to support their budget items for preservation. This is clearly within the stated responsibility of the Council to advise the President on Historic Preservation.
8. Section 106 compliance would be greatly advanced if historic preservation training were emphasized and if such training were given a broad purpose, that of creating an understanding of the value of preserving the nation's historic and prehistoric patrimony.
Regional and park personnel could be made familiar with the philosophy of preservation by sending them to non-NPS properties so that the points-of-view, techniques, and problems of others would benefit Service preservation.
The programs ought to inspire and stimulate and, outside of stressing their importance, should not be concerned with preservation details.
Mr. Brown and Mr. Bradford's presentations were followed by an extensive period of discussions and observations concerning the procedures for implementing NEPA and 106 legislation, and how to improve the compliance process. It was felt that there was need for new and simple procedures, new approaches, and experimentation, but that the Service was not as yet living up to its responsibilities as required by the laws. There was still resistance to 106 by managers and those involved in the planning process.
Last Updated: 14-Jul-2009