Alert to preservationists from the National Trust. Deadline for Comments is November 26!!

The National Trust urges preservationists to take advantage of the opportunity--closing next week--to provide comments to the Advisory Council on Historic Preservation on proposed amendments to the Section 106 regulations. As described in further detail below, it is our view that the amendments as currently proposed would significantly weaken federal protections for historic resources, and, in particular, would seriously diminish the roles of the State Historic Preservation Officers (SHPOs) and Tribes in the Section 106 process. But it isn’t too late: changes can--and should--be made to the draft regulations.

The Advisory Council has expressed its willingness to work with preservationists to address concerns raised about the proposed revisions, and has even extended the comment period from October 27, 2003, to November 26, 2003, to encourage public input. It is important that a strong voice be raised in support of changes that would improve the existing proposal.

Information on the proposed Section 106 regulations and a .pdf of the Federal Register notice can be found at http://www.achp.gov/news-regsamends.html. Comments from the public are due November 26, 2003 (the day before Thanksgiving). They may be mailed, faxed, or e-mailed to:

Attn: John M. Fowler, Executive Director Advisory Council on Historic Preservation 1100 Pennsylvania Ave., N.W., Suite 809 Washington, DC 20004 BY FAX: (202) 606-8672 BY E-MAIL: achp@achp.gov (if by e-mail, note “Regs Amendment 2003” in subject line)

Even a short letter expressing some of the points noted below would be helpful in alerting the Advisory Council to the broad concerns of the preservation community.

Background The proposed amendments would make three principal changes to the Section 106 regulations. They would: (1) remove the authority of SHPOs and the Advisory Council to overrule agency determinations of “no adverse effect;” (2) eliminate Section 106 reviews for individual permits issued by state agencies under delegation by federal agencies; and (3) authorize the Advisory Council to propose and approve exemptions from Section 106 on its own initiative. The first two of these three changes were prompted by court decisions ruling that certain provisions in the current regulations were invalid. However, the courts did not dictate to the Advisory Council how the disputed provisions should be revised. In addition, it is important to note that other courts have actually upheld the very same provisions--a significant fact not addressed by the Advisory Council in its rulemaking proposal. In fact, there is room to address the different rulings of the courts without jettisoning the longstanding regulatory framework of the Section 106 consultation process.

Our Concerns While the National Trust has concerns about all three of the changes proposed by the Advisory Council, we are particularly concerned that the proposed amendments relating to agency “no adverse effect” findings would seriously weaken the Section 106 process. As proposed, if a SHPO or THPO or consulting party objects to an agency’s finding of “no adverse effect” or “no historic properties affected,” the agency will be allowed to disregard those objections as long as it writes to the Advisory Council and waits 30 days. Even an objection by the Advisory Council could be disregarded. As a result, agencies will have much less incentive than in the past to continue consultation to reach agreement. Instead, we believe agencies will rely on this new loophole to abandon the consultation process.

In effect, the amendments as proposed would alter the long-standing balance of the current Section 106 process, with nothing to deter agencies from proceeding in the face of strong objections on the most basic of Section 106 determinations: whether properties are historic and whether they would be affected by agency undertakings. The burden will then fall to preservation groups to go to court to challenge arbitrary agency findings of “no adverse affect,” increasing the level of litigation and acrimony. Our initial discussions with the National Conference of State Historic Preservation Officers (NCSHPO) and the National Association of Tribal Historic Preservation Officers (NATHPO) indicate that they have similar concerns. In the past several months, we have started to see an alarming increase in the number of agencies opting to stonewall--rather than resolve through consultation--disagreements about effects. Recent examples include actions by the Army Corps of Engineers, the Bureau of Land Management, and the Environmental Protection Agency. There is a real danger that--if the regulations become permanent as proposed--agencies will opt out of the consultation process on a regular basis. What Can be Done? The Advisory Council should be urged to develop additional procedural safeguards in the revised regulations to ensure that the roles of the Advisory Council, SHPOs, Tribal Historic Preservation Officers (THPOs), and Tribes in the Section 106 process are not substantially weakened. Such safeguards would provide strong incentives for agencies to continue consultation rather than to take advantage of the opportunity to walk away and declare “no adverse effect,” regardless of objections. For example, the revised regulations could:

• Require involvement by the head of the federal agency, the federal preservation officer, and/or a historic preservation professional, if the SHPO, THPO, or the Advisory Council disagrees about historic properties or effects.

• Provide for a referral to the Keeper of the National Register, if National Register eligibility is the disputed issue.

• Restrict an agency’s ability to exclude consulting parties in order to silence objections. • Specify additional documentation needed for an agency’s final decision.

• Require actual comments from the Advisory Council, rather than allowing the agency to wait out an absolute cut-off time of 30 days. The regulations should also allow Tribes and SHPOs to request additional time for review.

• Provide for an annual report by the Advisory Council evaluating agency abuse of “no adverse affect” determinations to avoid their Section 106 responsibilities.

These and/or other procedural protections would counteract the temptation for agencies to abandon the consultation process. We strongly encourage other organizations and individuals involved in historic preservation to contact the Advisory Council on Historic Preservation to make your views known about the proposed amendments to the Section 106 regulations. Please feel free to contact the National Trust if you have questions about the proposed amendments. Send an e-mail to law@nthp.org, or call the Law Department at 202-588-6035, and we will be happy to discuss the proposal with you. We also welcome any additional suggestions that you may have for improving the proposal.