On February 19, the Advisory Council on Historic Preservation (ACHP) issued a notice via email to consulting parties informing federal agencies that they should follow the terms of any applicable Section 106 agreement that contains emergency provisions, when such agreements exist, for any proposed undertaking that falls within the scope of President Trump’s Executive Order (EO) Declaring a National Energy Emergency. The ACHP further instructs agencies that in the absence of such a Section 106 agreement, they “can avail themselves of the expedited emergency provisions in Section 800.12(b)(2) of the Section 106 regulations.”
This notice has engendered a lot of questions and concerns about its impact on the Section 106 review process. The EO orders federal agencies to “identify and exercise any lawful emergency authorities available to them, as well as all other lawful authorities they may possess, to facilitate the identification, leasing, siting, production, transportation, refining, and generation of domestic energy resources, including, but not limited to, on Federal lands” (emphasis added). This means that a wide and somewhat vague list of energy-related projects will now fall under emergency Section 106 provisions, either those in a pre-existing agreement or under 800.12.
Of particular note is that the 800.12 regulations provide that, in the event no agreement already exists, agencies can comply with Section 106 by giving S/THPOs, Indian tribes or Native Hawaiian organizations seven days to comment – and if agencies determine that “circumstances do not permit seven days for comment,” they can invite stakeholders to comment “within the time available.”
Furthermore, while 800.12 applies only to undertakings implemented within 30 days after the emergency has been declared (with the proviso that agencies can request an extension from the ACHP), ACHP’s February notice extends the application of these procedures for the life of the EO (presumably, at least until the end of President Trump’s term).
Since the notice was issued, ACRA has been in close communication with the Council, its preservation allies, ACRA members and a great many other experts on Section 106 to understand the implications of the notice. It is important to note that the notice and underlying EO do not change the regulations, much less the statute itself. That said. there are fair questions about whether the applicability of the 800.12 procedures towards energy projects is appropriate and warranted when the intent of those procedures is for the kinds of emergencies where public safety is at stake, like following natural disasters.
The EO and the notice do not automatically mean that federal agencies will start exempting large numbers of undertakings from the kind of consultation and review that Section 106 requires. In fact, developers and other sponsors of infrastructure projects rely upon such consultation and review to avoid delays and conflict down the road. It is clearly in everyone’s best interest to integrate Section 106 into all projects. Furthermore, Section 106 and the regulations are designed to provide flexibility to ensure projects move forward, and the record shows that Section 106 does not delay projects.
What these recent developments mean is that ACRA, its members and its allies need to be increasingly vigilant to make sure that bad actors don’t abuse the flexibility inherent in the Section 106 process to undermine the protection and preservation of our nation’s heritage.
Misusing the Section 106 regulations to bypass consideration of the impacts to historic properties from federal undertakings is not only contrary to congressional intent set forth in the NHPA; it would represent a grievous betrayal of decades of collaborative efforts to protect our heritage while building for the future.
ACRA’s member firms are ready to and capable of working with federal agencies and other stakeholders to ensure that the effects on cultural and historic properties are assessed without holding up critical infrastructure projects. And ACRA offers all agencies its expertise in making sure that all infrastructure projects move ahead in ways that keep faith with our bedrock preservation laws. But ACRA will be watching agencies closely to make sure they follow the law. Federal agencies are on notice that any attempts to undermine the preservation of our national heritage are simply unacceptable.
ACRA strongly encourages its members to let ACRA know when and if there are attempts to force through projects without adequate consultation. ACRA will continue working with the ACHP, federal agencies and our preservation allies to continue upholding the core values of safeguarding our past while building for the future.