Alert: Historic Preservation Under Siege

/in /by

On December 22, David Bernhardt, Secretary of the Interior, issued a secretarial order that takes direct aim at the Section 106 process of the National Historic Preservation Act (NHPA). Ostensibly, the Secretary’s order attempts to increase coordination between the National Environmental Policy Act (NEPA) and the Section 106 process, and to reduce offsite compensatory mitigation. But these changes will likely add needless hurdles and complications to the permitting process while the order remains in effect. Because it is a secretarial order, it can be amended, superseded, or revoked by a future Secretary of the Interior. In the meantime, the Coalition for American Heritage is concerned that the practical implications of this order will harm America’s historic preservation program by causing unnecessary confusion and eliminating a crucial tool for addressing harm to our nation’s historic resources.

 Areas of Concern:

  • The order directs Department of the Interior (DOI) agencies to begin using NEPA substitution under 36 CFR 800.8(c) instead of the standard Section 106 process. Rather than streamlining matters, this change could complicate and extend the review process.

Using the 38 CFR 800.8(c) process is unlikely to streamline the process. Agencies will still need to do standard Section 106 reviews. Replacing Section 106-related compliance documentation with an Environmental Assessment or Environmental Impact Statement will not incur big time savings. Instead, it will add approval and dispute resolution steps to the standard Section 106 process. Increased use of the NEPA substitution process may also cause delays as consulting parties, including states, Tribes, and DOI agencies adjust to the new consultation process and the use of a different type of documentation to demonstrate compliance with Section 106.

  • The order disfavors offsite compensatory mitigation, even when it would be more efficient and less costly, and orders the Bureau of Land Management to review its programmatic agreements within 30 days to determine if they are in conformance with arbitrary timelines and the policy against the use of offsite mitigation.

According to the order, compensatory mitigation is disfavored because “Since Section 106 does not require a net preservation benefit or net public benefit, it does not serve as an independent authority to require offsite compensatory mitigation.” However, this interpretation reflects a misreading of the Section 106 language. Section 106 says that agencies will avoid, minimize, or mitigate any adverse effects on historic properties. It does not require that mitigation occur onsite, nor does it negate the use of offsite compensatory mitigation. We have multiple concerns about this Order, which are shared by preservation advocates, Tribes, and project proponents alike:

— Unintended consequences of the Order will be to drive up costs for companies and to extend project schedules. Offsite mitigation often costs less than onsite mitigation, and offsite mitigation can be implemented well after a project is constructed, which cannot (in most cases) be done with onsite mitigation. For example, conducting archaeological excavations of a site impacted by a project may under certain circumstances be logistically difficult (e.g., resulting in substantially higher than normal costs and time). As a result, an agency may decide for example, not to conduct excavations but to fund studies within a region to develop archaeological planning tools and procedures that can be used for better planning for future actions in the region, which in turn will save time and money associated with these future actions. This type of offsite mitigation would be less costly than excavations and could be implemented well after the completion of the project, allowing the project to proceed more quickly. 

— Onsite mitigation may not be feasible or possible in some cases, so the only way to mitigate impacts would be offsite mitigation. For energy projects, offsite mitigation is often used to mitigate visual impacts from wind turbines, transmission lines, compressor stations, or other infrastructure; on mining projects, offsite mitigation is common when cultural sites will no longer be available for traditional practices after development. Offsite mitigation is a tool that benefits companies and communities by allowing for creative solutions to resolve impacts to these historic places and the communities who value them, and allows projects to move forward with public support. 

— Developers are often the biggest champions of programmatic agreements that allow for significant time savings, predictability, and consistency in how their actions will be handled (e.g., BLM Permian Basin Programmatic Agreement model.) If DOI proceeds with an order to renegotiate all of the existing PAs, it will both remove those benefits and also be a logistical nightmare. Disfavoring offsite mitigation will drive up developers’ costs, add time to projects, and overwhelm agency staff who have to process these reviews.

Removing the option of performing offsite compensatory mitigation is akin to removing one of the most useful tools from the agency’s toolbox; it does nobody any favors. Rather than hamstring project proponents in this way, federal agencies should be focused on for improving the use of existing tools to reduce costs and delays.

The Coalition for American Heritage urges the Biden Administration to swiftly reverse this Secretarial Order. To achieve more efficient and effective Section 106 reviews, the federal government should instead:

  • Fund efforts to digitize historic resource surveys for state historic preservation offices (SHPOs) and tribal historic preservation offices (THPOs) so that a complete record of inventoried historic places is available in GIS format. In addition to digitizing existing databases, the federal government should expand its support for predictive models that anticipate where cultural resources are likely to be discovered. A GIS tool that accurately predicts areas of high, medium, and low risk for encountering such cultural resources will allow agencies to plan projects in ways that avoid and minimize adverse impacts—leading to shortened review times and expedited project schedules.
  • Invest in state and tribal historic preservation (State Historic Preservation Offices (SHPOs) and Tribal Historic Preservation Offices (THPOs)  by increasing SHPO and THPO staff, which would give them the capacity to process reviews more efficiently.
  • Enforce concurrent review guidelines already available for agencies’ reviews. MAP-21 directs agencies to coordinate and carry out reviews concurrently, instead of sequentially, in conjunction with the NEPA review process. Similarly, Title 41 of the FAST Act (FAST-41) requires state and federal permitting reviews  to run concurrently for a “covered project,” provided that doing so does not impair a federal agency’s ability to review the project.
  • Increase use of programmatic approaches to environmental and historic preservation reviews. This is the proper, existing mechanism to exempt certain classes of federal actions from full NHPA review.
  • Improve and make universal the merging of NEPA and Clean Water Act section 404 permitting processes, with the U.S. Army Corps of Engineers issuing a 404 permit at the end of the NEPA process, based on the information generated by the NEPA review, as opposed to the all-too-often current practice of the Corps conducting a separate and subsequent permit review.
  • Improve and increase opportunities for public involvement during project planning stages and early stages of project development. This provides the public an early opportunity to voice concerns about project impacts on their community, which then can be addressed early, thus avoiding or reducing subsequent controversies and conflicts.

Questions? Contact Marion Werkheiser or Kelly Lizarraga at Cultural Heritage Partners.