Congratulations to Vice President-elect Kamala Harris, who brings with her experience as a U.S. senator, Attorney General of the state of California, and San Francisco District Attorney. In these positions, she has used her role to protect and promote America’s historic legacy.

As Senator, Kamala Harris successfully worked to preserve historic sites across America. Harris sponsored several preservation bills which were signed into law:

• Expanding the John Muir National Historic Site in Martinez, CA by 44 acres,

• Establishing a national monument at the site of the St. Francis Dam disaster, and

• Preserving and improving historic buildings and sites at Historically Black Colleges and Universities.

Senator Harris is also a leading national voice for environmental justice:

• As the District Attorney for San Francisco, she created an environmental justice unit in her office,

• In the U.S. Senate, she has championed the Outdoor Recreation Legacy Partnership Program, which awards grants for projects that connect underserved communities to the outdoors and invests in urban parks, and

• She was a lead sponsor of the “Environmental Justice for All Act,” which would amend the nation’s fundamental civil rights and environmental laws.

She demonstrates a serious understanding of the permitting process and how development decisions impact communities:

• As Attorney General for the State of California, Harris won an indictment against a pipeline company that spilled 140,000 gallons of heavy crude near Santa Barbara.

• Harris also opposed the expansion of a Chevron refinery in Richmond, CA because the Environmental Impact Report failed to discuss the cumulative impact of increased air pollution, as California law required.

As a candidate for president, Senator Harris published a policy agenda for Indian Country that demonstrates an understanding of key issues in the U.S. Government relationship with tribes. Her plan included:

• A pledge to sign executive order reaffirming the United States’ government-to-government relationships and ensuring meaningful and frequent consultation with tribes,

• Plans to reintroduce a Tribal Nations Summit at the White House, and

• A plan to restore 500,000 acres into trust. 

We look forward to working with the Biden-Harris Administration to strengthen our nation’s commitment to historic preservation, and we hope you’ll join us! Sign up as a Coalition for American Heritage individual member to learn more about how you can be an effective advocate for historic preservation.

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.

The Coalition for American Heritage warned the U.S. Army Corps of Engineers (USACE) that its proposal to reissue and modify Nationwide Permits fails to adequately protect historic resources. In a detailed comment letter, the Coalition urged the USACE to take a systematic and programmatic approach to ensure that historic properties are protected in issuing Nationwide Permits.

The Coalition also reminded the USACE that the rule will undoubtedly have tribal implications, and the failure to consult with any federally recognized tribes is a significant oversight by the Corps. For these reasons, the USACE must consult with any Indian tribes on this proposed rule before proceeding.

A full copy of the Coalition letter is here.

Last week, the Senate Appropriations Committee released its Fiscal Year 2021 bill to fund the Department of the Interior. Several provisions of the Senate bill are important to note since they could have big impacts on preservation policy.

Strong Support for Preservation Programs in Both House and Senate:

• The Senate bill includes a big increase for the Historic Preservation Fund (HPF) — $19.34 million over last year’s level, for a total of $138 million. This increase is even more generous than the House of Representatives proposal of $136.425 million.
• Both chambers continue supporting increases for the National Endowment for the Humanities (NEH) and the National Endowment for the Arts (NEA), programs which the President’s budget had proposed cutting entirely. The Senate bill provides $162.25 million for each (the same amount as last year), and the House bill provides $170 million for each.
• Save America’s Treasures, funding for which was suspended from 2011 until 2016, received strong support from the Senate Appropriations Committee. They provided $16.5 million, an increase of $.5 million over last year. In contrast, the House bill provided $25 million. The Save America’s Treasures program, established in 1998, is managed by the National Park Service in partnership with the Institute of Museum and Library Services, the NEA, and the NEH, with the objective of preserving nationally significant historic properties and museum collections for future generations of Americans.
• In preparation for the country’s upcoming Semiquincentennial celebration, the Committee is creating a new, $10 million competitive grant program within the HPF to support restoration of State-owned historic sites and structures that honor and interpret the country’s founding, including Revolutionary War battle and commemorative monuments.
• The House and Senate Appropriations Committees allocated $7.4 million to the Advisory Council on Historic Preservation, an increase of $22,000.

Cautionary Notes on Actions Taken By the Trump Administration:

• The Senate Appropriations Committee expressed its concern with the National Park Service’s plan to modify the rule governing how properties are nominated for inclusion on the National Register. They noted that the Department failed to complete meaningful government-to-government consultation with tribes. Before implementing the rule, the Committee said that it expects the National Park Service to consult with tribes, Federal land management agencies, State and tribal historic preservation offices, and other stakeholders. The Coalition expressed these same concerns in our comment letter to the NPS and in subsequent meetings with the Office of Information and Regulatory Affairs.
• The Senate Appropriators noted the Trump Administration’s failure to provide a list of land acquisition projects. This list is required by the Great American Outdoors Act, a new law that permanently provides $900 million in annual funding for the Land and Water Conservation Fund. The monies help the federal government acquire new land for parks and trails, which often include historic resources.
• The Senate Appropriations Committee issued a reminder that oil and gas leasing within the 10-miles radius of Chaco Canyon should wait until tribes complete their investigations into culturally and historically significant areas and sites in places with high energy development potential. The Coalition for American Heritage signed a letter supporting legislation that would provide permanent withdrawal of 316,000 acres of federal lands surrounding Chaco Canyon.

Ongoing Efforts to Promote Diversity in the Sites and Stories We Honor:

• Strong support continues in both chambers for grants to protect and preserve the history and sites associated with the Civil Rights movement. The Senate bill provides $20.75 million in FY 21 and the House bill provides $22.25 million.
• In its Explanatory Statement, the Senate Appropriations Committee notes that the Civil Rights grant monies can also be used for recently discovered sites and stories of the transatlantic slave trade.
• The Committee encouraged NEH to provide support to projects that focus on our Nation’s history and culture, including Russian orthodox sacred sites and churches listed on the National Register of Historic places in need of restoration. The Committee also urged the Endowment to consider applications which focus on the complex and historically significant narratives of communities tied to recently discovered sites of the transatlantic slave trade, such as the Clotilda, the last known slave ship to arrive in the United States. Earlier this year, the Coalition for American Heritage submitted a letter in support of legislation recognizing the importance of the Clotilda.

Next, representatives from each chamber will negotiate differences between the House and Senate versions of the appropriations bill. A final version of the bill will need to pass both chambers before it can be signed into law by the President.

The Coalition for American Heritage weighed in with the U.S. Forest Service (USFS) on the proposed changes to regulations governing Federal oil and gas resources on National Forest System lands. In a comment letter to the agency, the Coalition warned that the changes could:

• reduce the level of environmental review of many proposed actions involving Forest Service land, 
• decrease the opportunities for public input and scrutiny of the Forest Service’s decisions under the National Historic Preservation Act and the National Environmental Policy Act, and
• imperil cultural resources located on Forest Service lands.

The Coalition also reminded the USFS that many Native American tribes have important ties to Forest Service lands. It is concerning, therefore, that the agency failed to conduct meaningful consultation with tribes in developing this proposed rule.

While the Proposed Rule seeks to reduce the backlog of expressions of interest and increase oil and gas leases, the Coalition believes that the solution is to improve the review process, not eliminate certain environmental requirements altogether. Coalition members often see environmental and cultural resources regulations blamed for delays, when in reality, staffing has been reduced or agency processes are otherwise insufficient for reviewing the number of oil and gas projects under their purview.

For additional details, read the Coalition letter here.