I, Beckerman, not Robot

Section 106 in its entirety:

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.

It appears that the Advisory Council on Historic Preservation is about to undertake a review and rewrite of the main implementing regulation of Section 106 of the National Historic Preservation Act, namely 36CFR800.  Last formally revised in 2000, it has served multiple agencies as the go-to regulatory guidance for implementing that Section of the NHPA.

Some of my fellow historic preservation peers have already begun to put pen to paper.  After 30 years working with this regulation through the eyes of a state department of transportation, I think I may have some things to say about any revision.

The first two observations about 36CFR800 are this: the Regulation is exquisitely flexible in its application and can be customized to fit nearly every agency or situation.  By design, it is a streamlining regulation.  Secondly, to unlock the full potential of the Regulation, you need to know what you’re doing. I’ve always likened the Regulation to a Maserati.  A good driver can move through compliance at great speed and efficiency, but if you don’t know what’s up or down, you will crash very quickly.

PennDOT, as well as many other transportation agencies, both state and federal, have figured out how to make the Regulation serve both the letter and intent of the Section 106 law. In some cases, it took more than a decade of trial and error to get there, but get there they did. And to throw metaphor upon metaphor, there’s no need to reinvent the wheel, especially if it’s holding a Pirelli Scorpion tire.

Most of the trial and error in making best use of the Regulation was in identifying those pain points that appear within the Regulation, then finding ways to work through them.  I believe that recreating that thought process is useful in trying to revise the Regulation going forward. Identifying the problems faced by an Agency attempting to comply with the Regulation and grasping the solution could lead to regulatory revisions that might anticipate and avoid the problems in the first place.

The alternative to this approach is a more traditional line by line comment and revision. I think looking at specific issues and addressing them provides more context, more “why” and again shows why the current Regulation is largely worth keeping.

Pain Point 1: Projects or Activities that have little or no potential to affect historic properties, by their nature.

The classic starting point is line painting. (Although line painting is routinely part of maintenance, which usually is not Federally funded, work with me here, folks.) It’s an activity undertaken by an agency. Does it have the potential to affect historic properties? I know of no example where it has. And under 36CFR800.3(a)(1), it clearly states that “If the undertaking is a type of activity that does not have the potential to cause effects on historic properties…the agency official has no further obligation under Section 106 or this part.” Done and done.

Line painting is the extreme case, but if you move through larger and more complicated activities and undertakings, the certainty of 800.3(a)(1) begins to blur.  At some point, reasonable people can agree that an undertaking could have the potential to cause effects.  The problem is everyone has their own opinion on just where that point is, which leads to uncertainty, disagreement, confusion, and delay.

Routine and repetition is the norm, so it is reasonable to look at types and classes of undertakings that occur over and over again and decide which qualify under 800.3(a)(1) and which don’t.  PennDOT and other transportation agencies do not undertake an infinite variation in types of projects or undertakings. Bespoke has no place here.  For the ones where everyone agrees, it is a simple matter to put these into a program-wide programmatic agreement and treat like undertakings and activities as exempt from Section 106. When the agency does this specific set of activities, they have no further obligation than to name it as exempt. Many transportation agencies have taken this route, and in the evolution of an agency’s programmatic agreement, this is often the baby first step.

The language is all there currently in the Regulation to do programmatic agreements.  The language could be more persuasive or more forceful, but in any case, I would argue this is the lowest of low fruit for improving the functioning of Section 106. Agencies that haven’t availed themselves to this have no one to blame but themselves.

There is one hiccup in programmatically exempting undertakings.  If an agency makes an exemption, and there is no further action required, how does the SHPO or public know that it occurred? What keeps the agency from using the programmatic agreement elastically so that undertakings are exempted that others might think would warrant a Section 106 review? Language is after all, imprecise, and I’ve yet to write or review an agreement that is misunderstanding-proof.

The practical solution to that is full transparency, which is accomplished in two ways. First, every exemption is publicly noted in a publicly accessible database.  These are not hard to build and maintain. With each exemption, the SHPO would get a notice with a link to the entry.  Again, not hard to build. Secondly, on a period basis – annual or otherwise – the signatories to the programmatic agreement would sit down and review all of the exemptions programmatically. At a holistic level, any discrepancies or differences in interpretation should emerge, and be dealt with together.

Because the ability to develop such programmatic agreements already exists in the current Regulation, I would not recommend a major revision.  At 800.3(a)(1), at the end of the text, a sentence or two could be added to encourage the development of a programmatic agreement to codify similar projects.  Such guidance exists for emergency situations, under 80012(b)(1). What’s good for emergencies is good for exemptions.  In addition, language should be inserted that pushes agencies to use publicly accessible databases to share results.

Pain Point 2: Emergency Procedures

The lesson of having in-place procedures for emergencies hit home to me when we had major flooding throughout multiple counties after a large storm event. Overnight, we needed to fix or replace dozens of bridges and roadways, but in theory, we were still bound by Section 106, in particular Part 800.12.   There seemed to be a 7-day window for activities, but after that, we pretty much needed an MOA or PA, neither of which we had. That was a lesson we needed to learn exactly once. Since then, PennDOT has had emergency procedures written into its PA.

I would argue that for any agency that has built infrastructure to manage, not having an in-your-pocket set of available emergency procedures is close to malfeasance. The Regulation absolutely welcomes development of such procedures in advance of any emergency, but I would argue the language should be sharper and the costs steeper for not creating one.  I would eliminate 800.12(b) allowing no out for Section 106 consultation, except for preserving life. The ACHP should insist that any program-wide PA for an Agency include emergency provisions if they are not already encoded elsewhere.

This restriction should also have the added benefit of preventing the President, a tribal government, or the Governor of a State to declare a false state of emergency for the purposes of circumventing Section 106.

Pain Point 3: Level of Effort to Solicit Interested Parties and the Public

 Section 800.2(d) and 800.3(e) have much to say about involving the views of the public. I wish I could locate the Section 106 underpinning of this effort in the law language, but I am largely at a loss.  The one place where it does appear to show is in “…take into account..” I am not a lawyer, let alone a historic preservation lawyer, so I will presume for the case of argument that public involvement is very much part of the NHPA. Clearly the benefits of having a historic preservation role for the public is laid out in Section 1 of the NHPA. 

For an agency attempting to comply with the Regulation and honestly seeking to solicit interested parties and the public, the wording feels like pushing peas around the plate. OK, we seek the views of the public. Got it. But then we are advised to look at the nature and complexity of the project, effects on historic properties, likely interest of said public, and relationship of the Federal involvement and the undertaking, as well as confidentiality concerns. 

As if this wasn’t enough, the Agency is also charged with developing a plan for each project that identifies when the public will be solicited and ensuring that they are notified of proposed actions.

That’s a lot to juggle. The good news is in the Regulation we can ride on the back of NEPA to satisfy public involvement. Great. the bad news is that other than non-categorically excluded projects (about 2% of the program), there really isn’t any substantial public involvement under NEPA. Mostly, it’s coordinating with the local officials for traffic detours, etc., during construction. At PennDOT, the CE’s were published, but only after being approved. That doesn’t leave room for public input. This also gets at the tension between the meaning of significant environmental impacts and adverse effects – two very different beasts.

One of the benefits of working at a transportation agency is that the projects are everywhere all the time, in every community.  This has two effects. First, you can’t hide anything from anyone. It’s all out there in the open. Secondly, an agency like PennDOT needs public support to operate, so it is in everyone’s best interest to get folks on board early and often.  Management understood the need and value for public involvement, for both popular and unpopular projects. 

The problem was always how to match all of the above directives with a particular project. Time pressures were generally not an issue, as Section 106 public involvement occurred during preliminary design, before final design, before the letting and contracting, and before construction. Level of effort to engage the public was the more immediate challenge. Is it too much or too little? Is it the right format for an audience? One of the maddening aspects of working for PennDOT was the general lack of interest from the public until the bulldozers started moving. Then all hell could break loose, including on projects that had multiple public plans meetings, newspaper and web notices, and public hearings, all with single digit attendances again until construction started. With that were accusations that the agency was stealthily springing the project on the good people of North Southtown.

In truth, the historic preservation staff at PennDOT relied heavily on the institutional knowledge of the District environmental and engineering staff. They knew their regions better than anyone and through years of experience could anticipate the level of interest on historic preservation issues for any project in any community. Each District had its own flavor ranging from total indifference to intense interest.  For a number of years, PennDOT operated this way. When Project PATH (Now just PATH) was developed, along with a substantial handbook, the agency developed a certain level of efficiency and proficiency. https://path.penndot.pa.gov

There’s no need to go deep into the of PATH, other than to state that it is a web-based platform that organizes all Section 106 activity and ensures the findings of eligibility and effect, and mitigation, as well as the documentation are shared with the SHPO and the public in close to real time. The guiding principle was to build a glass house to ensure that its inhabitants – PennDOT – don’t throw stones. In addition to the web site passively showing the Section 106 process, it also automatically sent notifications to the SHPO and any interested parties that were consulting on a project, and on a subscription basis, send a notification to any member of the public or group that expressed interest in a related geographical area or type of project, soliciting their participation in the process.

The PATH scaffolding tended to normalize cultural resource specialist behavior, putting projects with similar likely resources or effects into groups, so that similar levels of effort to solicit interested parties was consistent. The handbook reinforced that scaffolding, with the result that PennDOT now had a baseline level of effort that sufficed for most projects.  On an as-need basis, more intensive solicitation could occur, again based on all of the criteria outlined in 800.2(d)(1). PATH and the handbook essentially established a predictable floor for level of effort in seeking interested parties, but did so in a very transparent manner.

It is 2026. We are one-fourth into the 21^st century.  The National Historic Preservation Act has been around for 60 years, not quite as long as practical machine computing. The Internet as we know it today is over 35 years old. I do not think it unreasonable to write into any revised Regulation a requirement that agencies adopt something like the PATH model to both show an agency’s work and to solicit interested parties. There are already calls amongst the profession to push for the use of Geographic Information Systems to manage historic properties. A PATH-like system could manage the Section 106 process.

Pain Point 4: Area of Potential Effect.

I’ve listed the Area of Potential Effect as a pain point largely to humor those agencies that do not have sufficient in-house or contracted expertise to guide them in establishing the APE. PennDOT didn’t have usable in-house expertise to establish the APE until around the year 2000, but they were earlier to the game than a lot of agencies. For both above-ground resources and below-ground resources, the solution to accurately and properly establishing the APE is two-fold: first, ensure that the project design engineers have thought out what is needed to construct the project, not just the roadways or bridges, but the settling ponds, staging areas near the project, etc. It was maddening to get a preliminary project plan, act on it to establish an APE and then see stuff suddenly appear outside the APE as the design progressed, often expanding the APE incrementally. A giant waste of time.

The second secret ingredient to accurately setting the APE is to see the project area on the ground in person, and early. This was accomplished at PennDOT by having cultural resources staff participate in what were known as scoping field views, with the design team and the environmental team. It sometime seemed time-consuming, but these in-field meetings successfully broached potential issues, and sometimes led to change in plans on the fly to avoid unnecessary impacts, but still deliver a usable project.  At PennDOT, which was a decentralized agency where design occurred in each of the 11 Engineering Districts, the cultural resources staff needed to be equally dispersed, leading to regionally based professionals tagged to work with individual Districts. Initially, they were consultants and eventually PennDOT employees, but both models worked as long as there was some stability in the stationing.

Ultimately the solution to this pain point was crude but immensely effective – eyeballs in the field.  Like the Supreme Court’s definition of pornography, the delineation of an APE is basically, you know it when you see it. Cultural resources professionals are trained to understand what an APE is and how to draw one. More experience is better, but the solution to the pain point ultimately is having available expertise frontloaded on the project, whether it be at the project scoping or some other early preliminary design stage.  This is a pain point that doesn’t require Regulatory revisions, just adequate professional investment by the agency, whether contracted or hired.  

If there were any Regulatory revision here, under 800.2(a)(3), instead of talking about the use of contractors, maybe more words should be spend on the importance of professional expertise available to the Agency Official.  In my experience, FHWA was the Agency that held the Agency Official, but PennDOT was the agency that held the professional expertise. We needed to work together to deliver the program. You would be surprised how a little bit of respect and a working relationship between agencies can unlock that expertise. If FHWA through PennDOT could have a successful program, any Federal Agency could.

Pain Point 5: What is the Difference between No Effect and No Adverse Effect?

If you ask any historic preservation professional what the difference is between an No Effect call and a No Adverse Effect call, you can expect a long and involved digression pinpointing the precise differences between a project that has no effect on an historic resource and one that does have an effect, but that effect is not adverse.  When you respond after that 20 minute recitative that the outcome is the same and there really is no difference, you can expect a disgusting look and a wave of their had to tell you to leave.

In all likelihood they are upset because you are actually correct. There is no difference -with one caveat; a no adverse effect finding might have some conditions attached to ensure the historic property is not adversely affected.  One twist in this jumble is that a project that can have a positive impact on a historic property can still be an effect and not adverse.  In this world there are no positive effects, just effects that are not adverse. Got it?

In the NEPA world there are two states to projects – either no significant impacts or significant impacts. And in baseball you are either safe or out (Spring Training is on my mind).   I think the same should apply to Section 106. Either a project has an adverse effect to an historic resource or it doesn’t.  This simplification removes an unnecessary call. Historic resources are still determined eligible or not eligible. The criteria of effects and criteria of adverse effects can be combined and applied in one step. Nothing is really lost, except for confusion.

Sections 800.4(d) and 800.5 can be combined into one 800.5 section. This is a minor simplification in the process, but if we’re going to revise the Regulation anyway, this opportunity should not be passed up.

Pain Point 6: Community Valued (but not Historic) Properties pushed into Section 106

The facts of life of someone working in transportation is that not all projects are universally popular. Some are unpopular to all or some of a community. A community that opposes a project will use the tools available to it to fight it. And sometimes they find they need to use a screwdriver as a hammer.

Section 106 is supposed to be about historic properties. However, some communities find that Section 106 could be applied to places that don’t rise to the level of historic properties, but for the purpose of opposing a project, need to become historic. Given the expansive interpretation of national register eligibility and the willingness of most SHPO’s to err on the side of “yes,” getting a positive eligible determination is often easier that you might think.

The root of this problem isn’t with the community, nor with the SHPO, nor with the nature of projects, nor frankly with NEPA. Under NEPA, community concerns are supposed to be considered in both assessing the NEPA Classification and taking public input to mold the final product. In theory, under NEPA, the local VFW meeting hall might be an important community resource, and therefore considered under NEPA; however, there is no specific law that requires that consideration, like there is under Section 106. Sometimes the project is just plain unpopular among a segment of the community, but again there’s no specific law that is available to address those concerns.  So, Section 106 becomes the life raft on which the opposition sails. The VFW Hall might be 50 years old. Bingo! Somehow an argument is made that it is a historic property under Criterion A, or C.

I find this approach to be putting a round peg into a square hole. It would be much better and cleaner to take the community’s concerns under NEPA directly, than searching for a historic preservation hook.  Let’s say the community does get the VFW Hall determined eligible. And let’s say it’s going to be taken for the project, and therefore an adverse effect. Mitigation might be a recordation, or some other alternative mitigation, but it simply won’t stop the project, which was the opposition’s goal in the first place. People simply misunderstand that Section 106 does not block projects the way they think it will. So the result is anger and frustration that the work the community or a segment of the community put into stopping this project does nothing.

Specifically, for transportation projects, there’s Section 4(f) considerations. On paper, it is stronger than Section 106 as it requires the Agency to demonstrate there’s no prudent and feasible alternative to “taking” a property. One would think this would be a stronger tool in the toolbox for addressing community concerns, as it covers not only historic properties, but parks and recreational areas, for example a schoolyard.

However, the 4(f) test can be met relatively easily when there is no prudent and feasible alternative to a project. A road project through a community might have its only alternative be a total bypass, which generally wreaks more havoc. Feasible, but not prudent. The follow-up requirement for an Agency is minimization, which in the case of a taking of all or part of a schoolyard could be mitigated by providing comparable space or equipment nearby. If the goal is to sensitively develop a project through a community, this can be a plus. If the goal is to stop the project because it is unpopular, it is no more effective than Section 106.

Before we leave this pain point, I do want to be clear that the community concerns we are discussing here are not the same as those of Tribes, who can have serious and legitimate concerns over places of religous or cultural importance.  Those properties are covered by law under the 1992 amendments to the National Historic Preservation Act, and it is perfectly appropriate to raise those concerns through Section 106.  Unfortunately, it would be better if 36CFR60 were revised to take properties of traditional or cultural importance into account, but it hasn’t happened. Although this commentary is mainly about 36CFR800 as the Regulation under revision, we should not lose sight of the fact that 36CFR60 also needs revision.

Can any revision to the Regulation fix this pain point. I don’t think so. But it does point to needed revisions in NEPA and perhaps a separate community impacts law to address community concerns.  I truly believe this pain point is outside of Section 106.

Pain Point 7: Archaeological Data Recovery after NEPA

When an archaeological data recovery is part of a resolution of adverse effects, it is typical to write a memorandum of agreement that allows the mitigation to occur in final design or construction.  This is needed because although Section 106 is a self-contained process and stands on its own, NEPA is a process that requires the fulfilment of other laws before it can be completed. Specifically, NEPA can’t get to a finding until the Section 106 process is completed.

The fiction here is that the execution of a memorandum of agreement concludes the Section 106 process, and with an MOA, a NEPA finding can be made. This also occurs in large and complicated projects with multiple alignments where archaeological survey, determinations of eligibility, and mitigation can all occur after Section 106 through the execution of a programmatic agreement. Section 800.4(b)(2) outlines the process under which a PA can be used. There’s no problem there.

The problem with the fiction of concluding Section 106 through an MOA isn’t in its legality, but in the very practical matters of contracting and tracking a project. In transportation, a project is often delineated into three separate stages: preliminary design, final design, and construction. Each stage might have its own set of contractors and consultants, and even within an agency there may be handoffs from one group of engineers to another. With each stage handoff, papers are shuffled and instructions are transmitted, so with each handoff there’s an opportunity for something to fall of the plate, to be misunderstood, or worst of all, not budgeted for.

An archaeological data recovery is one such example of something that can get missed, especially if the agency’s archaeological professional is not bird-dogging it throughout. Because in many instances consultants are used to manage the process on behalf of an agency, when there is a handoff, the archaeology management can also be handed off. These are sensitive points in which there may be an archaeologist in the room when the contract is being drawn up, or not. Archaeological data recoveries are quite a complicated beast. It’s not just the digging, but the laboratory work, the analysis, the writing, and the preparation and disposition of the collection. Some of this can happen a decade after the ink is dry on the last contract. Institutional memory isn’t permanent, people move or retire. Ensuring everything is done by spec all the way through can be difficult. In my own experience, it led to many orphaned collections in a wake of uncompleted work, and no active contracts to ensure their deposit.

The one change I would make in the Regulation is to really emphasize the responsibility of fulfilling an MOA or PA, as well as more care and consideration in writing these documents.  While it is difficult if not impossible to anticipate all contingencies that might occur when undertaking an archaeological data recovery, clearly there can be better and tighter provisions than often occur.

I do note that there are a lot of words spent on the signatory process under the current Regulation, under 800.6(c)(1), but very little about the importance of establishing clear and executable commitments within an agreement. I would add an 800.6(c)(10) to do precisely that. Also, I would add an (11) to state the importance of following the mitigation commitments made in an agreement. Unless there are specific deadlines expressed in the agreement, commitments are standing until they are met.  Finally, I would suggest that not meeting all of the commitments is failure to resolve adverse effects and puts the project firmly back into Section 106 consultation, with the possibility of forcing an NEPA re-evaluation or Supplemental.

Conclusions

All of the noted Pain Points cited above can and were addressed through the use of the existing Regulation.  The recommended changes cited above are relatively minor, but I do believe they will improve the process and help other Agencies avoid similar problems.  

Again, there’s enough flexibility in the Regulation to do a lot.  There is a mistaken belief that Section 106 and its Regulation hold up projects. If you know what you’re doing, that’s simply nonsense.  The Agencies that apply Section 106 properly know it. The SHPO’s know it. If you don’t know what you’re doing, or are too lazy to learn, or as I suspect is the too often the case,  are opposed to any and all regulations, then I have nothing to offer you.