The Senate Committee on Energy and Natural Resources is planning on having a hearing on the National Historic Preservation Act the last week of October (potentially 10/29). On October 19th, I sent the following to Senator David McCormick of Pennsylvania, who is on the Senate Committee.
Senator McCormick,
I am writing you regarding the National Historic Preservation Act (of 1966). My observations are informed by a 40 year career as a professional archaeologist who has worked with the NHPA for most of that time. I was employed by the Pennsylvania Department of Transportation and the Maryland State Highway Administration; my experience was largely with Section 106 of the NHPA. I am currently retired from PennDOT. Please note that my comments are my own and do not reflect the views of PennDOT or Maryland SHA.
In the nearly 60 years since its passage, the goals of the NHPA are unchanged.
“The Congress finds and declares that — the spirit and direction of the Nation are founded upon and reflected in its historic heritage; the historical and cultural foundations of the Nation should be preserved as a living part of our community life and development in order to give a sense of orientation to the American people;…”
The responsibilities of the Federal Government with regard to these goals are also unchanged. Amongst other things,
“It shall be the policy of the Federal Government, in cooperation with other nations and in partnership with the States, local governments, Indian tribes, and private organizations and individuals to — use measures, including financial and technical assistance, to foster conditions under which our modern society and our prehistoric and historic resources can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations;…”
My own experience has largely been with Section 106, one of the shortest Sections in the law. I can restate in its entirety here:
“The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under Title II of this Act a reasonable opportunity to comment with regard to such undertaking.”
As far as transportation and other agencies are concerned, the main implementing regulation for Section 106 is 36CFR800, last revised in 2004. As implemented by Federal Agencies, what is important to know is that Section 106 and its regulation are procedural and not prescriptive. Agencies must take into consideration the impacts their projects have on historic resources, but are not told how to implement. Secondly, within 36CFR800 is enormous flexibility to implement Section 106. This flexibility is not limited to the Federal Agency level, but exists at the State level, for types of actions, and even within a specific action. Finally, the law and regulations put public input into the decisionmaking. This does not mean that individuals or small groups are given the power to change or stop projects, but it does mean that all voices are meant to be heard.
Using the flexibility in existing law and regulations, at PennDOT we were able to streamline the Section 106 process to accomplish the following: by definition or by a quick check, most of the projects using Federal Funding were exempt from further Section 106 review. Section 106 was finished instantly or in a few days. This was with the blessing of the Advisory Council on Historic Preservation, FHWA, the State Historic Preservation Officer, and other signatories to our agreement, which included Federally recognized Tribes. A further slice of our projects were determined in-house to have No Effect or No Adverse Effect on historic resources. Our findings were made public and unless there were objections from the State Historic Preservation Officer, were final. Section 106 was finished in days or weeks, and well before the NEPA approval could be made.
Only those projects that had an adverse effect on historic resources– around 3% of all projects – required more extensive consultation with other parties. In 25 years at PennDOT, there wasn’t a single instance where this consultation held up a NEPA decision or held up construction. It wasn’t just the up-front consultation that expedited conclusion of Section 106, but also the flexibility in Section 106 to find workable solutions. Sometimes engineers were able to avoid the adverse effect by redesigning the project. Sometimes archaeologists completed field excavations after NEPA approval but before construction. And it is important to note that Section 106 does not require preservation of historic properties, although that could be an outcome. In many cases, the action to address adverse effects involved recording and sharing local history, saving and re-using parts of historic buildings and structures, or protecting similar properties not in the project area, but at risk. In all cases, costs to complete these mitigations were required to be reasonable and in each case, the benefit to the local community needed to be shown. For PennDOT, all projects are local and benefit and impact real people.
Successful Section 106 implementation creates no noise, no angst, no blowback. In 2025, PennDOT is expected to spend $4+ billion in Federal, State, and private funding on more than 1,200 highway and bridge projects. How many of these have come to your office as Section 106 problems?
There is no question that the regulations can be improved and updated, and over the 60 years of the Act, regulations have been regularly revised. That said, the NHPA and Section in its current form provides PennDOT the tools to meet the goals of the Act in an efficient manner. Projects were never delayed, and in certain instances, design changes spurred by the Act led to improved and better projects, appreciated by the community in which they were built.
I, Beckerman, not Robot 