CHAPTER 2 THE NATIONAL HISTORIC PRESERVATION ACT'S SECTION 106 PROCESS, RESOLVING ADVERSE EFFECTS ON HISTORIC PROPERTIES, AND BLM'S REVISED NATIONWIDE PROGRAMMATIC AGREEMENT

• Jurisdiction: United States

Federal Regulation of Cultural Resources, Wildlife & Waters of the U.S.
(Apr 2012)
CHAPTER 2
THE NATIONAL HISTORIC PRESERVATION ACT'S SECTION 106 PROCESS, RESOLVING ADVERSE EFFECTS ON HISTORIC PROPERTIES, AND BLM'S REVISED NATIONWIDE PROGRAMMATIC AGREEMENT
Alice M. Baldrica
Baldrica Consulting
Reno, Nevada
Melissa Meirink
Greenberg Traurig LLP
Denver, Colorado

ALICE M. BALDRICA was deputy state historic preservation officer for Nevada for 20 years, ending with her retirement after 30 years of state service in 2010. Much of her career was spent reviewing federal undertakings for compliance with Section 106 of the National Historic Preservation Act and working with agencies and project proponents to resolve or avoid adverse effects to historic properties. Prior to working for the state, she was an archaeologist at the Desert Research Institute and for the U. S. Forest Service. Ms. Baldrica earned her M.A. and B.A in anthropology from the University of Nevada, Reno with an emphasis in the study of prehistory and history of the western Great Basin. Currently, she has her own business, Baldrica Consulting, which specializes in the preparation of programmatic agreements for agency programs and complex projects. Ms. Baldrica also serves on the boards of Preserve Nevada and the Nevada Rock Art Foundation.

MELISSA MEIRINK is with the Denver office of Greenberg Traurig. Her environmental compliance practice focuses on compliance with federal and state environmental regulation. She has broad experience with NEPA and cultural resource protection laws, such as the National Historic Preservation Act (NHPA), the Archaeological Resources Protection Act (ARPA), and the Native American Graves Protection and Repatriation Act (NAGPRA). Ms. Meirink has assisted clients with the siting, construction, and development of multi-jurisdictional energy-related projects. Ms. Meirink also has broad experience with American Indian law and with natural resources development on tribal lands. She has extensive experience with tribal consultation under the NHPA and the nomination of historic properties to the National Register of Historic Places.

I. Introduction

The first part of this paper discusses the consultation process under section 106 of the National Historic Preservation Act of 1966 ("NHPA"). It begins with a brief history of the Act, discusses when section 106 applies, what a historic property is, and the roles of consulting parties. The first half of the paper also discusses the role of the Advisory Council on Historic Preservation ("ACHP"), the NHPA's implementing regulations, and the use of memoranda of agreement and programmatic agreements to resolve adverse effects on historic properties.

The latter portion of this paper discusses the execution of the Bureau of Land Management's ("BLM's") 1997 Nationwide Programmatic Agreement, its purpose, and the recent revisions and execution of BLM's new Agreement.

II. Regulatory History of the NHPA and Section 106

The historic preservation laws in place before the NHPA, like the Antiquities Act of 1906, did not adequately protect artifacts and historic properties, in part, because the federal government was not required to consider the impact that agency-sponsored projects would have on such properties. The NHPA set forth a national policy of cultural heritage and historic preservation. The NHPA's purpose was threefold: (1) to preserve the historic and cultural foundations of the Nation as a living part of community life and development, thereby giving a sense of orientation to the American people; (2) to convert the federal government from an inactive player to the leader responsible for protecting historic properties; and (3) to establish a system for the preservation, nomination, and acquisition of historic properties.¹ Over the years,

[Page 2-2]

the NHPA has been expanded and improved, but its original goals to preserve the Nation's cultural heritage remain unchanged.

Like the National Environmental Policy Act of 1969 ("NEPA"), the NHPA is a procedural statute that does not mandate results or seek to control the outcome of how federal agencies implement their undertakings.² Rather, the NHPA, similar to NEPA, requires federal agencies to "stop, look, and listen" before proceeding with an agency action.³ The NHPA's strongest provision providing direct protection of historic properties is section 106, which requires federal agencies to (1) "take into account" the effects of their undertakings on historic properties "included in or eligible for listing in the National Register," and (2) to afford the ACHP "a reasonable opportunity to comment with regard to such undertakings."⁴

Because it is a procedural statute, section 106 does not require actual protection of historic properties. Instead, it only requires federal agencies to "take into account" the effects of their undertakings and to demonstrate consideration of adverse effects before an action is taken. Similarly, even though the ACHP must be given a "reasonable opportunity to comment" on an undertaking, it has no authority to enjoin or directly influence agency undertakings.

The ACHP, which was established under the NHPA, originally consisted of 17 members and included the Attorney General and four Secretaries of major federal departments-namely, the Treasury, Commerce, Interior, and Housing and Urban Development.⁵ Currently, the ACHP contains 23 members, including the Secretary of Agriculture, the heads of seven other agencies selected by the President whose activities affect historic preservation, one governor, one mayor,

[Page 2-3]

and one member of an Indian tribe or a Native Hawaiian organization selected by the President.⁶ The ACHP is the primary advisor on historic preservation issues to the President and Congress. In this capacity, it recommends administrative and legislative rules to protect historic properties, and reviews federal preservation policies and programs.⁷

Section 106 applies when (1) there is an undertaking by a federal agency and (2) that undertaking has the potential to cause an adverse effect on a historic property.⁸ An "undertaking" means a "project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; and those requiring a Federal permit, license or approval."⁹ "Effects" include any "alteration to the characteristics of a historic property qualifying it for inclusion in or eligibility for the National Register."¹⁰ Effects can be direct and can include physical damage or alterations to a property, or they can be indirect, which can include visual or audible effects that diminish the integrity of a historic property.¹¹

Section 106 applies to protect historic properties. The term "historic property" is more narrow than the term "cultural resource." The impacts to cultural resources must be considered under NEPA,¹² but the protections and considerations of section 106 apply to only historic properties. A cultural resource is broad and encompasses every kind of location of human activity, occupation, or use that is identifiable through field survey, historical documentation, or oral evidence. It refers to objects, structures or sites of historical interest. A historic property is defined more narrowly as a

[Page 2-4]

prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in the National Register. It includes artifacts, records, and remains that are related to and located within such properties. The term includes properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization and that meet the National Register criteria.¹³

Simply put, a historic property is a kind of a cultural resource that enjoys specific legal protection because it is listed in or eligible for listing in the National Register.

The National Register is the official list of historic resources and is maintained by the Secretary of the Interior through the National Park Service.¹⁴ The Keeper of the National Register is responsible for listing historic properties and determining whether properties are eligible for listing.¹⁵ To be listed in the National Register, a property must meet the National Register's Criteria for Evaluation: it must (1) be associated with events that have made a significant contribution to the broad patterns of the Nation's history; (2) be associated with the lives of persons significant in our past; (3) embody the distinctive characteristics of a type, period, or methods of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or (4) that have yielded or may be likely to yield, information important in prehistory or history.¹⁶ For a property to qualify for the National Register, it must meet one of the National Register Criteria for Evaluation by being associated with an important historic context and by retaining the historic integrity of those features necessary to convey its significance.¹⁷

[Page 2-5]

Properties found eligible for listing meet the National Register Criteria for Evaluation but have not been formally listed in the National Register--either because the listing process has not yet been completed or because the Keeper has made a decision to find them eligible but not to list them. Properties eligible for listing are not eligible for such benefits as grants, loans, or tax incentives that require listing in the National Register as a prerequisite,¹⁸ but eligible properties are afforded the same preservation protection consideration as those properties listed in the National Register.

A listing or a determination of eligibility for listing in the...