Update: House Subcommittee Hearing Targets National Historic Preservation Act

Summary of the Natural Resources Subcommittee on Oversight Hearing

“Examining Impacts of Federal Natural Resources Laws Gone Awry, Part II”

Available to view on-line

The July 18th hearing was a proxy battle for ongoing partisan arguments over regulation, climate change, and industry access to administration officials.

Opening Statements by Members of Congress

Rep. Westerman, chair of the subcommittee, opened the hearing by saying that many laws give the federal government more power than Congress intended and create an enormous burden for federal agencies.  He alleges that the laws are misapplied and vulnerable to abuse, and that it is necessary to bring the laws back to Congress’s original intent.

Rep. McEachin, the ranking Democrat, said that the hearing was unfair and accused the Trump administration of prioritizing coal, oil and gas over fishing, camping and hunting.  The Congressman added that the true purpose of the hearing was to undermine our environmental laws while ignoring climate change, the biggest threat we face.

Witness Testimony

Dr. Amos Loveday’s testimony focused on what he sees as the unintended consequences of applying Section 106 to sites that are “determined eligible” for the National Register, but not actually on the list.  Dr. Loveday pointed out that the creation of the National Historic Preservation Act rested on 2 assumptions: 1) the creation of the Register, based on a federally-funded nationwide search, and  2) the idea that federal agencies would consult the Register and try to avoid listed sites.  However, because no money was appropriated to create the list, the U.S. Park Service devised a temporary solution, which Nixon ratified with an executive order and rendered listing unnecessary.  Now, he says we are dealing with a temporary fix, 50 years after it went into effect.  Dr. Loveday suggested that Congress may want to redirect money in system to make the listing.

Ms. Patty Brandt, of Keep Eastmoreland Free, talked about her experience in contesting an attempt to list her neighborhood on the National Register.  She said that the NHPA is being abused at the level to subvert local planning processes.  Ms. Brandt said that historic designation shouldn’t be a back door to changing local zoning laws.

Ms. Amanda Leiter, from American University, Washington College of Law, was an official in the Department of the Interior during the Obama administration.  She emphasized the ways in which our laws create a balance between the competing needs of industry, various levels of government, and the public.  Ms. Leiter acknowledged that someone is always unhappy with these decisions because there is no way to accomodate everyone, but emphasized the legal requirement to hear from all stakeholders.  She expressed concern that the Trump administration, and Secretary Zinke in particular, are listening only to industry executives.  Finally, Ms. Leiter said that the elephant in the room is climate change.  She told the subcommittee members that they should be focused on dealing with climate change, not searching for missteps by Obama administration.

Question and Answer Session

In the follow-up questions, Rep. Westerman went fishing for an example of a project that was cancelled or horribly delayed by the Section 106 process.  However, Dr. Loveday testified that the process usually took 3-4 months.

Rep. Coleman Radewagen asked Ms. Brandt what federal changes could improve the

Historic designation process.  Ms. Brandt suggested that the onus put on the individual that seeks the designation, that historic districts be smaller in scale, and that the period for contesting the designation be longer.