I recently read through the August 8th Draft Program Comment on Accessible, Climate-Resilient, and Connected Communities, issued by the Advisory Council on Historic Preservation. This was prompted by comments provided by the National Conference of State Historic Preservation Officers’ comments, the Society for American Archaeology’s comments, and the comments from the Washington State Historic Preservation Office. There is no need to recapitulate the main arguments of NCSHPO or SAA, that the Advisory Council may have exceeded its authority in issuing these Program Comments. I am neither a regulatory attorney nor a Federal judge, so I leave those arguments to those better informed. That being said, there are additional reasons why the Advisory Council should withdraw this draft and rethink its approach.
Does the Program Comment or Programmatic Agreement Take Precedent?
The ”integration” with pre-existing program comments and programmatic agreements invites confusion. Take Appendix C-1.4 Work on Bridges. The Pennsylvania FHWA programmatic agreement covered this work in approximately the same manner with approximately the same result (no further 106 review), but would the Program Comment or the State Programmatic Agreement take precedent?
Under II. Scope, C. Effect on Existing Agreements, a federal agency, in this case FHWA, has a choice to use existing 106 PA’s or this Program Comment. It is not clear that this applies to all related undertakings or just the one project activity. The federal agency could terminate the PA and follow the Program Comment or amend the existing PA. Choice is good, right? These decisions will be made by managers, not experts in the dark arts of Section 106. Depending on how this is marketed to federal agencies, at the worst it will result in loss of precise tools for handling these minor projects that had the buy-in of the SHPO and other consulting parties (including tribes). At the best, it will result in extended internal discussions between managers and practitioners over why the Advisory Council would be selling the federal agency a bill of goods. In the credibility racket this is a zero-sum game that benefits no one.
This is an anticipated result in each of the FHWA Divisions, leading to a patchwork of processes nationwide, not exactly the unifying intent of this draft Program Comment. If there is one good thing to come out of this draft Program Comment, it might be a nudge to FHWA Divisions to execute effective programmatic agreements for minor activities, if none exists.
Archaeological Resources under our Feet
The authors of the Program Comment don’t really seem to understand how ground disturbance works. This was alluded to in the other previously referenced comment responses, but deserves a bit more here. In definitions, neither previously disturbed ground nor previously disturbed right-of-way seems to take into account situations within urban areas where there is a wealth of archaeological context right below the pavement. As most archaeologists (qualified professionals, if you will) will tell you, relying on as-built drawings and plans for whether there are archaeological deposits right below the pavement is the surest and fastest way to perdition, if not unanticipated discoveries and delays – something these Program Comments wish to avoid.
In my previous life, working at a state DOT (Pennsylvania), we had an effective programmatic agreement that had an entire section devoted to activities that were unlikely to affect historic resources. We were able to exempt them with the stroke of a pen, actually many strokes of many pens. That authority was placed in the hands of qualified professionals who had the education, training, and experience to check on the context as to whether potential archaeological resources could be present and whether that concern warranted further investigation. They were rarely wrong, something that expertise confers on someone. In addition, the exemptions made by staff were posted to the publicly accessible Project 106 PATH website in near real time. Errors could be caught quickly and long before consequences. The SHPO had the authority to raise any concern on any project at any time for any reason. Again, this rarely happened. As noted by others, these safeguards did not seem to be in the draft Program Comment.
Alienating your Allies
One final point. Let’s all agree that the goals of the ACHP’s Program Comment are admirable, that they wish to use the flexibility within Section 106 to streamline the process and at least not to be in the way of presumably virtuous projects. Furthermore, let’s for the moment agree that what the ACHP is proposing is perfectly legal and would pass judicial scrutiny. This still leaves a bitter taste in the mouths of state historic preservation officers and the archaeological community over process. Section 106 is a process law, not a substance law. Process reigns supreme, not results. You have an entire community of state SHPO’s who have fully committed their lives and sacred honor to that process. (There’s no fortune to be sacrificed here. Parents tell your children before they pick a major.) As a group, they are process nerds and as fully expert a collection of practitioners as you are going to find. They are the ACHP’s natural allies, the one group that can back the Council with full authority within each of their jurisdictions, all 50 of them and territories. And the Council has in one draft document, pulled the rug out from under them. They will not say this publicly. I am not a SHPO, though, and I say they have been disrespected in the one arena they care about most – process.
Archaeology and archaeologists are also treated as an afterthought, something archaeologists are used to, but more often from project managers. This is another group that is a natural ally of the ACHP and although the SAA has come out currently as the main archaeological group to speak to the draft Program Comment, others are likely to follow. I also detect the underlying metallic taste in their mouths. Why would the ACHP alienate two of the most important allies it has? As my late mother would say, “Beats me, Lieutenant.”
As alluded to in other comments, state programmatic agreements seem the best tool to streamline Section 106 for these minor activities. The two main agencies that seem involved in the list of activities in the draft Program Comment are FHWA and HUD. Maybe FEMA as well although the focus is buildings and transportation, not recovery. Should FWHA be interested, it could work with ACHP to develop a specific template that could be shopped to each state FHWA Division, or execute an agency-wide programmatic agreement. Given FHWA’s traditional deference to state divisions, I think the former is more practical. With the support of FHWA and ACHP, needed state PA’s could be executed in approximately a year, faster than most PA’s. I am less familiar with the modus operandi of HUD, but a template PA could also be useful. State SHPO’s and other stakeholders would be the drivers of these agreements. Streamlining 106 could be achieved, and the ACHP could start putting the toothpaste back into the tube.
I, Beckerman, not Robot 