Notes prepared by a member of th

SAA Members: Attempt to Alter Section 106 in the Works in Congress

A draft bill currently circulating on Capitol Hill would drastically change Section 106 of the National Historic Preservation Act. Section 4 of the draft would alter just one sentence in Section 106, but the effects of this change would be profound.

The draft bill reads: "Section 106 of the National Historic Preservation Act is amended by striking 'or eligible for inclusion in' and inserting 'or determined by the Secretary to be eligible for inclusion in'".

Currently, federal agencies rely on "consensus" determinations of eligibility for Section 106 purposes, reached through consultation between the agency and the State Historic Preservation Officer (SHPO) or Tribal Historic Property Officer (THPO). The requirement for identification of historic properties and evaluation of their eligibility to the National Register is a critical component of the Section 106 process. In order for Federal agencies to consider the effects of their actions on historic properties during planning, they need to know what properties are located within the general area. Because of the vast size of the United States and the depth and richness of our historic and prehistoric record, the great majority of our historic heritage is properties that have not even been recorded yet, much less evaluated for eligibility to the National Register. Currently, agencies determine which properties within the area of a project are eligible to the National Register and must, therefore, be considered in planning by going though the "consensus determination process." In a consensus determination, if the agency and the SHPO or THPO agree about a property's eligibility, then for the purposes of Section 106 the property is treated as eligible or not eligible, as the case may be.

Under this amendment, however, all determinations of eligibility for Section 106 would have to be made by the Keeper of the National Register. The amendment would:

Significantly increase expenses for cultural resource identification work—the level of detail and documentation accepted by agencies and SHPOs and THPOs or the purpose of consensus determinations is generally substantially less than the levels required by the National Register for a formal determination of eligibility;
Completely overwhelm the office of the Keeper of the National Register—the Register has a very small staff and every year tens of thousands of historic properties that may be affected by Section 106 undertakings would have to be valuated for eligibility;
Cause catastrophic delays for development projects funded or approved by Federal agencies—currently, thousands of Federal undertakings move quickly through the Section 106 review process every year. The combination of greatly increased documentation requirements and enormous backlogs of requests for determinations from the National Register would bring the process to a near standstill for highways, mining projects, oil and gas development, and nearly every other category of Federally funded or approved project;
Result in inappropriate levels of disclosure of sensitive information about places of traditional religious and cultural significance to Native Americans—under the current practice of consensus determinations of eligibility, Federal agencies and Indian tribes have considerable flexibility when the agency is evaluating the eligibility of historic properties of traditional cultural and religious significance. A requirement for formal determinations of eligibility for Section 106 properties would significantly expand the need for disclosure and dissemination of highly sensitive information about traditional cultural properties; and
Damage states' rights and tribal sovereignty—under the current process, the people of a state have a strong voice in what is considered eligible to the NRHP for the purposes of Section 106 undertakings, given the requirement for SHPO concurrence. Likewise on tribal land, the people of the tribe have a strong voice in what is considered eligible for the purposes of Section 106 undertakings because of the requirement for THPO concurrence in DOEs. The proposed amendment to Section 106 would shift all decision making to Washington, and although there would undoubtedly be opportunities for input from the state or tribe, that is not the same as having the authority to concur or not concur.

Congress needs to hear from those who oppose this provision. Please go to www.house.gov, the House of Representative's home page. On that page is a zip code search engine that will allow you to identify your Member of Congress and link to his or her web page. Most Members have a service on their page that allows you to contact their office via email. In addition, each Member lists their Washington and district office phone and fax numbers on their web page.

When you email, fax or speak to your Representative's office, include the following information:

WHAT: A draft bill containing a provision adversely affecting Section 106 of the NHPA.
WHERE: The House Resources Committee's Subcommittee on National Parks.
WHEN: There will be a hearing on the draft on April 21.
THEN ASK: That the provision changing Section 106 be taken out of the proposed bill before it is introduced.
WHY: Use the talking points above to state your case.

Testimony of the Society for American Archaeology Before the National Parks Subcommittee of the US House of Representatives Committee on Resources Concerning proposed amendments to the National Historic Preservation Act April 21, 2005

The Society for American Archaeology (SAA) appreciates this opportunity to submit testimony to the National Parks Subcommittee concerning proposed amendments to the National Historic Preservation Act (NHPA) of 1966, as amended (16 U.S.C. 470). SAA is an international organization that, since its founding in 1934, has been dedicated to research about and interpretation and protection of the archaeological record of the Americas. With a membership of more than 7,000, SAA has members in all 50 states as well as many other nations around the world. The Society represents professional archaeologists in colleges and universities, museums, government agencies, and the private sector. Our government and private sector members work daily with the NHPA in their efforts to manage and conserve the archaeological heritage of the American people. The NHPA is the cornerstone legislation for preserving the historic, prehistoric, and traditional cultural places loved and revered by the people of this Nation. NHPA was passed in 1966 because Congress recognized [in Section 1 of the law] that “the spirit and direction of the Nation are founded upon and reflected in its historic heritage,” and that “historic properties significant to the Nation’s heritage are being lost and substantially altered, often inadvertently, with increasing frequency.” Congress went on to assert in this first section of the NHPA that “the preservation of this irreplaceable heritage is in the public interest so that its vital legacy of cultural, educational, aesthetic, inspirational, economic, and energy benefits will be maintained and enriched for future generations of Americans.” These statements ring as true today with the American people as they did 40 years ago. In 1999, a coalition of archaeological organizations, including SAA, commissioned a poll among the American public, conducted by Harris Interactive, Inc. This nationwide study revealed that 98% of those polled supported the statement that there should be laws to protect prehistoric and historic archaeological sites. Any proposals to amend NHPA must give serious consideration to the deep sense of connection that Americans of every persuasion feel toward our historic places. Comments on Sections 2, 3, and 5-7 of the “National Historic Preservation Act Amendments of 2005” SAA’s primary concerns about the amendments proposed in the “National Historic Preservation Act Amendments of 2005” have to do with Section 4, Consideration of Effect of Federal Undertakings, but we do have brief comments on the other sections of the draft bill that we would like to present first:

Sections 2 and 3 address specific situations that, although rare, do arise occasionally. Given the rarity of these situations, legislative remedies may not be warranted. Stronger guidance from the National Park Service should be sufficient to prevent future problems. For example, NPS could amend the regulation governing the Certified Local Governments (CLG) program, 36 CFR Part 61.6, to require that CLGs either not tie local regulation to National Register eligibility or provide procedures for due process.
SAA strongly supports Section 5, the extension of the term of the Historic Preservation Fund (HPF). The extraordinary amount of historic preservation work accomplished by State and Tribal Historic Preservation Offices and Certified Local Governments using HPF funds, and the amount of money leveraged every year by HPF dollars through matching funds, partnerships, and volunteer contributions, make this a remarkably productive and successful program.
SAA also supports the provision in Section 6 authorizing appropriations for the Advisory Council on Historic Preservation through 2012.

SAA has no comment at this time on the other provisions of Section 6 and the provisions of Section 7. Comments on Section 4 of the “National Historic Preservation Act Amendments of 2005” Section 4 of “National Historic Preservation Act Amendments of 2005” would amend the language of Section 106 of NHPA so that where it now says that Federal agencies must take into account the effects of their undertakings on properties “included in or eligible for inclusion in the National Register [of Historic Places]” it would read instead “included in or determined by the Secretary to be eligible for inclusion in the National Register.” The Section 106 process, as the Advisory Council’s regulation (36 CFR part 800) says, “seeks to accommodate historic preservation concerns with the needs of Federal undertakings through consultation among the agency official and other parties with an interest in the effects of the undertaking on historic properties.” This view of the purpose of Section 106 closely reflects the policy established by Congress in Section 2 of NHPA: It shall be the policy of the Federal Government . . . in partnership with the States, local governments, Indian tribes, and private organizations and individuals 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. Federal agencies are required by NHPA to have procedures for compliance with Section 106 that provide a process for identifying historic properties and evaluating their eligibility for listing in the National Register. The law further requires that agencies’ procedures for Section 106 include consultation with State Historic Preservation Officers (SHPOs), local governments, Indian tribes, and others to develop agreements about how the agency will take into account any adverse effects on properties listed on or found through the Section 106 process to be eligible for listing on the National Register. The requirement for identification of historic properties and evaluation of their eligibility to the National Register is a critical component of the Section 106 process. In order for Federal agencies to consider the effects of their actions on historic properties during planning, they need to know what properties are located within the general area. Because of the vast size of the United States and the depth and richness of our historic and prehistoric record, the great majority of our historic heritage consists of properties that have not even been recorded yet, much less evaluated for their eligibility to the National Register. Currently, agencies determine which properties within the area of a project are eligible to the National Register and must, therefore, be considered in planning by going though a process called a “consensus determination of eligibility.” In a consensus determination, if the agency and the SHPO or Tribal Historic Preservation Officer (THPO) agree about the eligibility of a property, then for the purposes of Section 106 the property is treated as eligible or not eligible, as the case may be.

This is not the same as a formal determination of eligibility from the Keeper of the National Register; a consensus determination is used only for the purposes of Section 106 decision making. A consensus determination that a property is eligible simply means that the Federal agency must consider the effects of its undertakings on that property. It does not mean that the undertaking cannot proceed or that the property must be preserved. The proposed amendment would eliminate the consensus determination of eligibility. The only way that Federal agencies would be able to meet the statutory requirement to evaluate the eligibility of properties identified during Section 106 compliance would be to request a formal determination of eligibility from the Secretary, that is, from the Keeper of the National Register. SAA is certainly in favor of efforts to ensure that Federal agencies only consider effects of their undertakings on historic properties that are truly important. In our experience, however, the consensus determination process works reasonably well to balance the needs of Federal undertakings with historic preservation concerns while keeping projects moving quickly. The proposed elimination of consensus determinations and requirements for formal determinations of eligibility from the National Register, on the other hand, would have serious unintended consequences. This requirement would:

Eliminate local control over decisions about the significance of historic places. Under the current process, which requires SHPO concurrence with agency determinations of eligibility, the people of a state have a strong voice in decisions about which historic places will be considered in Section 106 reviews. Likewise on tribal land, the requirement for THPO concurrence gives the people of the tribe a strong voice in determining which historic places receive consideration in the Section 106 process. The proposed amendment to Section 106 would shift all decision making to Washington, and although there would undoubtedly be opportunities for input from the states and tribes, that is not the same as having the authority to concur or not concur at the local level.
Significantly increase the expense of historic property identification efforts. The level of detail and documentation accepted by agencies and SHPOs/THPOs for the purpose of consensus determinations is generally substantially less than the level of detail and documentation required by the National Register for a formal determination of eligibility.
Completely overwhelm the ability of the National Register of Historic Places to respond to requests for determinations of eligibility. The Register has a very small staff and every year tens of thousands of historic properties that may be affected by Section 106 undertakings must be evaluated for eligibility.
Create catastrophic delays for development projects funded or approved by Federal agencies. Currently, thousands of Federal undertakings move quickly through the Section 106 review process every year. The combination of greatly increased documentation requirements and enormous backlogs of requests for determinations from the National Register would bring the process to a near standstill for highways, mining projects, oil and gas development, and nearly every other category of Federally funded or approved project.
Require inappropriate levels of disclosure of sensitive information about places of traditional religious and cultural significance to Native Americans. Under the current practice of consensus determinations of eligibility, Federal agencies and Indian tribes have considerable flexibility when the agency is evaluating the eligibility of historic properties of traditional cultural and religious significance. A requirement for formal determinations of eligibility for all Section 106 properties would significantly expand the need for disclosure and dissemination of highly sensitive information about traditional cultural properties.

The result of the proposed amendment to Section 106 of the NHPA would be a reversal of the current trend toward streamlining of environmental compliance. It would provide no additional protection to our Nation’s prehistoric and historic heritage, eliminate local control over decision making, and place a huge burden of costs and delays on Federal agencies and private industry. The Society for American Archaeology strongly urges the National Parks Subcommittee not to include Section 4 in the proposed amendments to the National Historic Preservation Act.

The Assault on Section 106 of the National Historic Preservation Act And Why it Must Be Stopped

Thomas F. King

Congressman Devin Nunes (R-CA21) has proposed what appears to be an obscure technical amendment to an obscure law – Section 106 of the National Historic Preservation Act.

If enacted, Congressman Nunes’ amendment would imperil America’s undiscovered archaeological and historic heritage – or throw a new
roadblock in the way of needed modern development – or both. Here’s why.

What is Section 106?

Section 106 of the National Historic Preservation Act, enacted in 1966, says that Federal agencies, when considering projects, assistance, or permits, must “take into account” the impacts of their actions on places included in or eligible for the National Register of Historic Places. The National Register is a list of known significant historic, archaeological, and cultural places that is maintained by the National Park Service.

What does “take into account” mean?

Agencies “take their impacts into account” by consulting with state, local, and Indian tribal officials and other concerned parties about
whether and how to protect historic places, and almost always reach agreements under which important places are taken care of somehow while the project proceeds. Section 106 does not require that projects be halted if they affect historic places.

Why do the words “eligible for” matter?

Although thousands of historic, archaeological, and cultural places have been identified and placed on the National Register, the vast majority of such places remain to be discovered. This is particularly true of archaeological sites and American Indian sacred places, which are not readily recognizable by untrained people, but it can be true of historic buildings and neighborhoods, too – simply because no one has had the time and money to identify and register them. If Section 106 referred only to places already on the National Register – as it actually did before 1972, when President Nixon issued an executive order extending consideration to eligible places – the thousands of not-yet-identified places could and often would be ignored in planning, to be found, if they were found at all, only when the bulldozers began to churn them up or knock them down. So the requirement to consider “eligible” places – that is, places that meet criteria issued by the National Park Service for Register eligibility– is a critical part of Section 106.

How does Section 106 work?

To comply with Section 106, Federal agencies and applicants for Federal assistance and permits routinely have archaeological and historical
studies done when planning a project, as a part of their environmental impact assessment work. When these studies reveal places that might meet the criteria for eligibility, the agencies and applicants consult with State Historic Preservation Officers, local governments, sometimes Indian tribal officials, and the interested public to figure out whether the places are worth protecting somehow. Sometimes this results in redesign of projects to protect things in place; other times buildings are moved, or archaeological sites are excavated, and projects proceed as planned. It is very, very rare for the decision to be made to stop a project altogether, though occasionally a Federal agency will elect to do this when an extremely important place is found that cannot be taken care of in any other way – as the Federal Highway Administration recently did when a huge historic Indian tribal cemetery was unexpectedly found during construction in Port Angeles, Washington. The Port Angeles case is virtually the only case in recent memory where a project has actually been abandoned because of impacts on National Register eligible places.

What would the proposed amendment change?

If the amendment were enacted, Federal agencies would be required to take into account only the effects of their actions on properties included in the National Register or determined eligible for the Register by the Secretary of the Interior.

Obviously, the Secretary of the Interior has no crystal ball telling her where all the not-yet-discovered important historic places are, so if the
amendment went into place one of two things would happen:

Significant but unrecorded places would simply be ignored in planning and destroyed without consideration – though in some cases they might be noticed during construction and cause expensive and time-consuming work
stoppages without saving much.

Or

A bureaucratic process would have to be set up whereby agencies and project proponents would continue to identify significant places, but
before decisions could be made about what to do about them, they would have to be reviewed in Washington DC to verify their significance.

What would be lost?

Assuming Congress made it clear that it wanted eligible places to be identified and reviewed by the Secretary of the Interior, all that would
be lost would be time and money, through the complications Secretarial review would add to the planning process.

Otherwise, what would be at risk is every significant but undiscovered historic and cultural building, neighborhood, archaeological site, and
Indian tribal sacred site in the country that stands in the way of a Federal, federally assisted, or federally licensed project. Some such
places would of course be preserved through the generosity of private owners or developers, or under state, local, and Indian tribal laws, but there would be no consistent provision for their consideration, and the Federal government would have abandoned its responsibility toward them.

What would be gained?

The amendment is apparently motivated by the belief among some property developers that insignificant places are being preserved at the expense of their profits. These developers think they would gain financially if the Federal government abandoned its commitment to undiscovered historic and cultural places. They may be right, but the American people, and America’s heritage, would lose.

Beginning with the Antiquities Act of 1906 and extending through laws like the 1935 Historic Sites Act, the 1966 National Historic Preservation Act, and the 1989 Native American Graves Protection and Repatriation Act, the U.S. government has exercised thoughtful responsibility for our national heritage. The consideration of not-yet-identified historic and cultural places in planning under Section 106 is a critical part of this exercise of responsibility. Congress should not throw it away to please a few developers.

Testimony of the World Archaeological Congress Before the National Parks Subcommittee of the US House of Representatives Committee on Resources Concerning proposed amendments to the National Historic Preservation Act

The World Archaeological Congress (WAC) appreciates this opportunity to submit testimony to the National Parks Subcommittee concerning proposed amendments to the National Historic Preservation Act (NHPA) of 1966, as amended (16 U.S.C. 470). The World Archaeological Congress has reviewed the discussion draft being considered during the hearing of your committee on April 21st. We are writing to express our concerns about the proposed change to the Section 106 of the NHPA, and urge you to delete this section before a bill is introduced.

The World Archaeological Congress is an international organization, which represents professional archaeologists in tertiary institutions, museums, government agencies, and the private sector from more than 90 countries. It seeks to promote interest in the past in all countries, to encourage the development of regionally based histories and international academic interaction, and has a particular interest in:

… education about the past
… archaeology and indigenous peoples
… the ethics of archaeological enquiry
… the protection of sites and objects of the past
… the effect of archaeology on host communities
… the ownership, conservation and exploitation of the archaeological heritage
… the application of new technologies in archaeology and in archaeological communication.

Beginning with the Antiquities Act of 1906 and extending through laws such as the 1935 Historic Sites Act, the 1966 National Historic Preservation Act, and the 1989 Native American Graves Protection and Repatriation Act, the U.S. government has exercised thoughtful responsibility for its national heritage. As foundation legislation for preserving historic and prehistoric heritage in the USA, the National Historic Preservation Act (NHPA) of 1966 has been an important part of this process. The consideration of not-yet-identified historic and cultural places in planning under Section 106 has been a critical part of this exercise of responsibility.

The National Historic Preservation Act is also of much wider importance than simply the USA, since many of the places protected by this legislation are of international significance. These places are also of great significance to the wider American public and to particular interest groups, such as Native Americans, not only in regards to the pasts that they embody but also in terms of contemporary social and cultural identities. As in other countries, the archaeological heritage of America is irreplaceable, and needs to be protected by appropriate legislation. In our view the proposed changes to the National Historic Preservation Act will seriously diminish protection for archaeological sites in the USA, through placing currently protected sites, and sites not yet identified, outside the 106 process.

Sections 5-7 of the "National Historic Preservation Act Amendments of 2005"

While WAC has serious concerns with the proposed amendment to Section 4 of the "National Historic Preservation Act Amendments of 2005", we also wish to offer brief comments on Sections 5 and 6:

SAA Members: Attempt to Alter Section 106 in the Works in Congress

Hearing Information

NCSHPO

National Conference of State Historic Preservation Officers

Witnesses

Summary of Points Made by Subcommittee Members and Witnesses

NATHPO