A preliminary assessment of the ACHP’s proposed overhaul of the 800 regulations that implement Section 106 finds that the changes will lead to more project delays, more confusion about the process, and vastly fewer opportunities for the American people to have a say in the effect of federal government activities in their communities.
The Council is currently voting by email on the proposal, which was sent to Council members just last Friday with a request for an up-or-down vote.
The White House Office of Management and Budget (OMB) published a notice on its website on Tuesday that the ACHP is planning to take action on the 800 regulations. Although the actual revisions themselves have not been made public officially, the draft revisions sent to Council members have been shared widely on social media.
What the Regulations Would Do
Although the proposed regulations are not public – and could potentially change before they are published in the Federal Register – a preliminary assessment by ACRA shows the many ways that they would alter the Section 106 process currently in use:
Making Early Consultation Optional. The proposed rules eliminate provisions in the current 800 regulations that require federal agencies to consult with SHPOs, THPOs, local governments and the public at the outset of the process; agencies could engage in early consultation, but only if the agency believes that doing so “would be helpful . . . and not unduly disruptive to the section 106 process or the timeline of the overall project.”
Under the proposed changes, parties invited to engage would have 15 days to confirm their participation, lest their participation is deemed waived. Agencies could set their deadlines for participation, but the default deadlines would be 30 days to assist in identifying of historic properties, and 45 days – to run concurrently – to assist in evaluating effects and proposing ways to address adverse effects.
Crunching the Section 106 Process into a Single Agency Document. In place of the consultation process the current rules require, the proposed rules would require agencies to prepare a “Section 106 Report.” Agencies would be required to certify that they considered the factors mandated by Section 106; that the report “represents [their] good-faith effort to identify an undertaking’s potential effects on historic properties;” and that any considerations left out of the report are presumed to be intentional “based on the agency’s judgment that such considerations are comparatively unimportant or frivolous.”
Only once a report is drafted would agencies be required to circulate it to consulting parties, who would have 60 days to respond. Parties to whom the agency sends the report by non-electronic means (i.e., mail) would be deemed to have received the report in five days, regardless of whether they actually receive it.
Once agencies receive responses from parties, they would be required to “evaluate” the responses; after that, they have the choice of engaging in consultation, drafting a memorandum of decision (MOD) that outlines their findings, or invite the commenters to enter into a memorandum of agreement (MOA). Such MOAs would include a covenant not to sue.
Reducing the Role of SHPOs and THPOs. In addition to making consultation with them optional, the proposed rules would reduce the role of S/THPOs in a number of ways, including:
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- Removing the process whereby S/THPOs can object to a finding that no historic properties are affected.
- Removing language requiring S/THPO consultation on adverse effects.
- Making consultation with S/THPOs, NCSHPO, the public and others in developing programmatic agreements optional.
Limiting the Voice of Tribes. The revised rules would reduce participation by Tribes, whether they have a THPO or not. For example, the proposed rules would jettison existing language stating that agencies must ensure Indian tribes and Native Hawaiian organization have “a reasonable opportunity” to identify concerns about and advise on the identification and evaluation of historic properties, including those of traditional religious and cultural importance, and participate in the resolution of adverse effects.
Another example: the proposed rules would create a new definition of historic property that specifically excludes “noncompact, unimproved natural features such as mountains, valleys, bodies of water, or landscapes, including ethnographic landscapes,” which could leave places sacred to Tribes unprotected by Section 106.
Reducing Public Engagement. The proposed rules would give federal agencies total discretion of when, or even if, the public is consulted. They state that agencies have “exclusive discretion to determine the usefulness of public participation, including, e.g., as necessary to resolve community concerns. The agency shall consider how offering an opportunity for public participation is balanced against the cost of other values, such as the public interest.”
The rules would allow agencies to decide to exclude the public if they feel that public engagement would delay projects. They also make it optional for agency officials to “provide the public with information about an undertaking and its effects on historic properties and seek public comment and input.”
Exempting Undertakings from Section 106. The proposed rules would exempt a large number of undertakings from Section 106, including in cases where a state or local government is “exercising delegated federal authority to act or to issue a license to a third party” and when “actions funded by federal grants where the federal government does not retain control over how, to whom, or why the grants are disbursed.” They also exempt actions with “no or minimal Federal funding, or . . . Federal involvement where a federal agency cannot control the outcome of the project.” They do not define “minimal.”
Limiting the Areas of Potential Effects. The proposed rules would remove indirect effects as a form of adverse effects, stating that “[a]dverse effects include only those reasonably foreseeable effects that have a reasonably close causal relationship to the undertaking.”
The revisions would remove existing language that includes, as adverse effects, “[c]hange of the character of the property’s use or of physical features within the property’s setting that contribute to its historic significance” and the “[i]ntroduction of visual, atmospheric or audible elements that diminish the integrity of the property’s significant historic features.”
Tipping the Scales Towards Cost and Other Factors. The proposed rules encourage agencies to place more weight on non-preservation factors when making decisions, including money and time. They would allow agency officials to “document its determination that other considerations outweigh those of historic preservation as to any or all effects or properties.”
Limiting the Role of the Council. The Council’s proposed rules even reduce their own role, deleting provisions that currently require agency officials to consider the ACHP’s views in reaching a decision on environmental documents when NEPA processes are used, and that require agencies to request C3ouncil participation in consultations to resolve adverse effects on National Historic Landmarks.
Expanding Emergency Exemptions. The proposed rules expand the ability of agencies to use the regulations’ emergency provisions., First, they would alter the language on the scope of emergency procedures from “immediate threats to life or property” to “emergency situation,” which is not defined. Second, they remove the stipulation that the provisions apply only to undertakings implemented within 30 days of emergency.
Impacts on CRM Firms
The proposed regulations say relatively little explicitly about contractors who conduct Section 106 reviews. They keep provisions that allow for the use of contractors, and also leave unchanged language requiring that agencies use employees and contractors who meet the Secretary of the Interior’s Professional Qualifications Standards.
The proposed regulations also would require agencies to conduct sample field investigations and field surveys “as necessary to identify and evaluate historic properties, or to assess alternatives,” but with the stipulation that they should “tak[e] into account reasonable considerations and factors like the cost and time of doing so.” This could mean that agencies could avoid fieldwork if they believe that it’s not worth the cost or time.
Beyond that, the proposed rule’s compressed process, lack of public consultation and reduced scope of undertakings and APEs could create incentives for agencies to do less – and hire fewer firms, despite the huge risks that such actions could lead to delays later in the process and exacerbate inconsistencies in how agencies implement Section 106. Conversely, by placing more unilateral authority on agencies – whose staffs have been reduced in recent years – the proposed rules could induce agencies to hire more consultants, albeit under a process that looks vastly different.
Outlook and Next Steps
If the Council approves the revised regulations in the vote that closes today, they would then go to OMB for review, after which the Council would publish a notice of proposed rulemaking (NPR) in the Federal Register. A draft NPR sent to Council members proposes just a 30-day window for public comment.
While this process normally takes months, the speed at which the Council is trying to muscle the changes through suggests that the revisions could be open for comment fairly soon. Under federal law, the Council is required to consider the comments when it finalizes the rule, although it does not have to agree with them.
Any legal action relating to the rulemaking could commence only when a final rule is publicized and must originate from an entity that has standing to sue.
Can Congress intervene and stop the Council? Congress could theoretically pass legislation that blocks the Council from changing the regulations – or amends the NHPA in ways that render the proposed regulations moot. As observers of Congress will attest, Congress does not move quickly (and any legislation Congress would pass to block the Council would presumably be vetoed by the President).
That does not mean Congress is powerless to act; rather it means that nobody should expect instant results from Capitol Hill. To borrow a sports analogy, this process is still in the early innings.
ACRA’s Position
As ACRA President Shawn Patch said in his message to members earlier this week, ACRA’s cursory review of the proposal showed that it would “fundamentally change Section 106, undermining decades of collaborative work that created a process that balances preservation with development.”
Further review of the proposal confirms that initial view: the revised regulations, crafted in secret and rushed to approval, need to be scrapped.
ACRA is continuing to strategize with its preservation partners and engaging its allies in and out of government to ensure that these changes are not implemented.
In the coming days, ACRA will roll out more resources for members to advocate for the Section 106 process, including hosting a Hot Topic on the proposed rules.