Letter to Incoming Interior Secretary Haaland on Secretarial Order 3389

02/11/2021 4:49 PM | ACRAsphere Blog Team

ACRA has written to incoming Interior Secretary Deb Haaland to urge her to rescind a Secretarial Order issued at the end of the Trump administration that “imperils our ability to protect historic and cultural resources.”

In December, then-Interior Secretary David Bernhardt issued Secretarial Order 3389, Coordinating and Clarifying National Historic Preservation Act Section 106 Reviews. Secretarial Orders are memoranda issued by an Interior Secretary that sub-agencies of the Department, like the Bureau of Land Management and the Fish and Wildlife Service, are required to follow. However, they do not have the force of law, and can be modified or rescinded by a future Secretary.

ACRA’s letter raises a number of concerns about the impact of Order 3389 on the Section 106 process, including:

  • The Order establishes arbitrary time limits on Section 106 processes without regard to the complexity of individual projects.
  • The Order discourages alternative mitigation measures as a tool to balance preservation and development needs.
  • The Order’s requirement that BLM review its Nationwide Programmatic Agreement will cause delays as individual agreements may need to be renegotiated to bring them into compliance and projects covered by the Programmatic Agreement will require project-specific Section 106 consultations which will slow project implementation.

As is written in the letter, "while ACRA members agree that the Section 106 process can always be improved upon, we are concerned that Order 3386 makes changes to the process that will harm the process, delaying projects, increasing costs and threating our ability to preserve and protect cultural assets."

Haaland is currently President Biden’s nominee for Secretary of the Interior. The Senate is expected to confirm her later this month, at which point she will have the authority to rescind or modify the Order.

To read ACRA’s letter, click here.

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