The following message was sent to me out of urgency. The new CFR 800 draft
regs are out and must be commented on by Dec 2. Few, if any, archaeologists,
historians and other CRMers in the private sector have been encouraged to
respond even though we will affected by them more than any other group (and
for those of you who think that you will never work in CRM so who cares,
think again). Kathleen Schamel and Loretta Neumann of CEHP in Wash. D.C.
are, among other things, lobbyists for cultural resources. They have
analyzed the new regs from a CRM perspective and have developed some
responses that directly address some serious problems with the new regs. For
my money, they are right on the money, and perhaps even a little to nice in
their criticisms.
If you would like to comment, please read the following message, and if you
agree, send a message to that effect to Kathleen. But it won't count for
much if you do not give her permission to use your name and/or your company's
name. This will affect all of our livelihoods, even academics down the road.
Tom Wheaton
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Forwarded message:
From: [log in to unmask] (Kathleen Schamel)
To: [log in to unmask] (TomWheaton)
Date: 94-11-16 15:47:29 EST
Tom - Chuck called yesterday and asked that I forward our 36 cfr 800
comments to you to send out to the general crm mailing list you have
assembled. We want folks to sign on and allow us to use their comapny
names when we submit the comments. More is better! Comments and
addit6ions are welcomed! Thanks much. I'll be in Albq the rest of
this week. Talk to you soon---
Section 106 and the
Cultural Resource Management Business
I. Cultural resource consulting firms provide professional services
to Federal agencies, regulated industries, and other clients who must comply
with the requirements of Federal historic preservation laws. Paramount among
these laws is Section
6 of the National Historic Preservation Act, as implemented through the
regulations of the Advisory Council on Historic Preservation (36 CFR 800).
As a result, cultural resource consulting forms have a great interest in
these regulations, and in the A
sory Council's current effort to revise them. The interests of cultural
resource consulting firms and their clients are not well served by the draft
regulations published for comment on October 3, 1994, for the following
reasons:
A. It is imperative that the regulations be straightforward
and easy to understand. Vast amounts of time and money can be lost in trying
to lead clients through the tangled maze of an overly complicated regulatory
process, and such a p
ess creates great potential for confusion, conflict, and misinterpretation.
The existing Section 106 process, as outlined in the regulations published
by the Advisory Council in 1986, is more complicated than it needs to be, and
has been difficult to
erpret for clients. Unfortunately, the new draft sets forth an even more
complicated process, or really a series of more or less parallel processes,
with various review loops and loops within loops, often cast in ambiguous
language that can permit mul
le interpretations.
B. A long-standing problem with the Section 106 process is
that it fails to discriminate among undertakings having different levels of
potential effect on historic properties. Interpreted strictly, the
regulations require an agency to
through the same process of review when maintaining a historic building as it
would go through before building a dam or razing a neighborhood. As a
result, there is a strong tendency for agencies not to follow the regulations
at all with respect to sm
or ongoing projects. This in turn breeds contempt for the regulatory
process, and undercuts the legitimacy of consultants who promote attention to
it. The categories "no effect," "effect," and "adverse effect" set forth in
the 1986 regulations were
ufficient to discriminate effectively among undertakings of different scales
and types. The new draft collapses distinctions further, into only "no
adverse effect" and "adverse effect" categories. This will exacerbate the
difficulties that consultant
ave in promoting respect for the application of the regulatory process to all
kinds of undertakings. The regulations need serious reworking to permit
finer discriminations.
C. Section 106 review has never been properly coordinated
with review under the National Environmental Policy Act (NEPA). This is
particularly unfortunate because in the last decade there has been a great
deal of development in the the
and practice of NEPA analysis, which has had little or no effect on how
cultural resources are addressed under Section 106. For example, NEPA
practitioners today are much concerned with how to measure "indirect,"
"secondary," and "cumulative" impacts
nd are developing sophisticated methodologies for doing so. These
methodologies are largely inapplicable to the review of effects on cultural
resources, because the Section 106 process as now practiced does not permit
them to be effectively applied.
tion 106 tends to be addressed late in planning, after a preferred
alternative has been selected, and review tends to focus only on properties
subject to direct effect. The regulations should be thoroughly reworked,
conceptually and structurally, to f
litate coordination with NEPA.
D. Over the years, State Historic Preservation Officers
(SHPOs) have become more and more central to the Section 106 process. The
draft regulations reflect and will accelerate this tendency, delegating to
SHPOs a substantial part of th
dvisory Council's oversight authority and placing SHPOs in a role of
"policing" agency compliance with the law. This is inappropriate for several
reasons:
(1) It ignores the growing sophistication of Federal
agencies, regulated industries, and others who have their own highly
qualified and experienced historic preservation personnel, access to
well-qualified consultants, and well-d
loped internal procedures for addressing Section 106 responsibilities. In
short, it ignores the fact that many Federal agencies and regulated
industries are ready and willing to serve as partners in advancing historic
preservation interests, and do no
eed a "policeman" to force them into compliance.
(2) It lays a burden on SHPOs that they are often
ill-equipped to shoulder. With reduced staffs and increased responsibilities
across the board, it is often impossible for SHPOs to carry out the
responsibilities placed on them b
he regulations in effective and creative ways. SHPOs are often reduced to
formletter responses to agency inquiries. It is not uncommon for SHPOs to
require far longer to review documents than the regulations provide. Some
SHPOs find it necessary to
vide "shoot from the hip" responses to agency and industry inquiries, which
are sometimes wrong and have to be rescinded later, confusing and extending
the process. Others refuse to talk or correspond with regulated industries
and consultants at all,
isting on communication only with the responsible Federal agency. While
understandable, this attitude makes it very difficult to ensure that SHPO
views are obtained at early stages in project planning, and addressed in a
cooperative manner.
(3) Placing the SHPO in the central, "policeman" role
encourages agencies and industries to view the Section 106 process as one of
simply "pleasing the SHPO," "getting past the SHPO," or "getting clearance
from the SHPO." This d
ourages creative, positive, and responsible approaches to historic
preservation issues on the part of agencies and industries.
II. The above are the major, philosophical problems with the draft
revised regulations, which are expressed in a host of specific directions
throughout the draft. Mere "wordsmithing" will not fix these regulations.
They should be thoroughly re
sidered and reworked to:
A. Make the Section 106 process simply, more comprehensible,
and easier to understand;
B. Establish different levels of analysis and review for
undertakings of different scales, types, and levels of likely effects;
C. Better coordinate Section 106 with NEPA, and
D. Rationalize the role of the SHPO.
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