In a letter to the Senate Energy and Natural Resources Committee, the Coalition for American Heritage urged confirmation of Rep. Haaland as Secretary of the Interior. 

Members of the Coalition have been impressed by her advocacy on behalf of our public lands, her support for federal historic preservation programs, and her work to address the climate crisis.

If confirmed, Rep. Haaland will be the first Native American to serve as a Cabinet secretary. She will bring her experience advocating on behalf of tribes and an understanding of what needs to be done to improve government to government consultation with tribal communities. 

The Coalition letter praised Rep. Haaland as “eminently qualified” to serve as Secretary and asked the committee to support her nomination. Read a full copy of the letter here. 

President Biden went to work today dismantling some of the most destructive policies implemented by former President Trump. Among these are several decisions on key preservation priorities, including:         

• Directing all executive departments and agencies to immediately review and take appropriate action to address federal regulations and other executive actions taken during the last four years that were harmful to public health, damaging to the environment, unsupported by the best available science, or otherwise not in the national interest;    
• Directing the Department of Interior to protect our nation’s treasures by reviewing the boundaries and conditions of the Grand Staircase-Escalante, Bears Ears, Northeast Canyons, and Seamounts Marine National Monuments and placing a temporary moratorium on all oil and natural gas leasing activities in the Arctic National Wildlife Refuge;
• Revoking, revising, or replacing additional Executive Orders, Presidential Proclamations, Memoranda, and Permits signed over the past 4 years that do not serve the U.S. national interest, including rescinding the 1776 Commission;
• By proclamation, President-elect Biden is declaring an immediate termination of the national emergency declaration that was used as a pretext to justify some of the funding diversions for the wall. The proclamation directs an immediate pause in wall construction projects to allow a close review of the legality of the funding and contracting methods used, and to determine the best way to redirect funds that were diverted by the prior Administration to fund wall construction. 

The Coalition for American Heritage applauds these efforts, and looks forward to working with the Biden-Harris Administration to further strengthen America’s historic preservation programs. Sign up for updates on the latest news in preservation policy: https://heritagecoalition.org/for-individuals/

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.