CHAPTER 8 CULTURAL RESOURCE PERMITTING: THE INTERSECTION BETWEEN NHPA AND NEPA

• Jurisdiction: United States

Advanced Public Land Law - The Continuing Challenge of Managing for Multiple Use
(Jan 2017)
CHAPTER 8
CULTURAL RESOURCE PERMITTING: THE INTERSECTION BETWEEN NHPA AND NEPA
Stan N. Harris
Partner
Modrall Sperling
Albuquerque, NM

[Page 8-1]

STAN N. HARRIS practices primarily in the area of public lands, natural resources, and commercial litigation. For more than 15 years, he has advised clients at the judicial, administrative, and legislative levels on federal, state, and local issues. Stan has extensive experience in the representation of parties in their disputes involving cultural property, public lands, Indian lands, oil and gas industry, environmental infrastructure matters, and mining transactions. He also represents clients in the area of general commercial litigation. Prior to joining Modrall Sperling, Stan served as Environmental Counsel to United States Senator Pete V. Domenici in Washington, D.C. and as Law Clerk to the Honorable Lynn Pickard, New Mexico Court of Appeals. Stan is a member of the Natural Resources and Environment practice group, and serves as Chair of the firm's Public Lands group and the Recruiting Committee. He has been recognized by Southwest Super Lawyers? in Energy and Natural Resources.

I. Introduction.¹

For much of the past half century there has been an increased understanding of the importance of the nation's historic and cultural heritage. This in turn has prompted the passage of numerous federal laws intended to address and protect that heritage. There is, however, no single comprehensive federal law dealing with cultural resources under federal jurisdiction. Instead, Congress has enacted a patchwork of laws addressing various aspects of cultural resource protection through various means and for various specific purposes.²

Two particularly important federal statutes that address historic and cultural resources are the National Historic Preservation Act of 1966 (NHPA),³ and the National Environmental Policy Act of 1969 (NEPA).⁴ These two federal laws have resulted in separate procedures requiring federal agencies to consider, among other things, the effects of federal actions on historic and cultural properties prior to approving such actions. The two processes created by the NHPA and NEPA are implicated in most of the actions that federal agencies are asked to take.

The goals of the NHPA and NEPA processes - to ensure that an agency takes into account the impact of a federal action upon, among other things, historic and cultural properties -- are quite similar. However, because each process is the creation of a distinct statute with its own specific requirements, the NHPA and NEPA processes themselves are in many ways very different. This can be a challenge for practitioners because, ultimately, it is the process for each statute that must be followed for any subsequent agency decision to be considered valid.

[Page 8-2]

In particular, the NHPA and NEPA have both been characterized as "stop, look, and listen" statutes.⁵ Thus, although the agency's ultimate decision about the action is never mandated by the NHPA or NEPA processes, and although reviewing courts do not judge the wisdom of such a process-informed decision,⁶ an agency must have adhered to the NHPA/NEPA processes for the decision to be considered valid. It is when an agency fails to follow the processes that its decision may be subject to attack.

Both the NHPA and NEPA, however, allow for their respective processes to be coordinated with each other, in the hope that an agency's decision may be made in a timely and efficient - while still procedurally thorough - manner. Thus, the NHPA regulations encourage federal agencies "to coordinate compliance with Section 106 with any steps taken to meet the requirements of NEPA."⁷ Similarly, NEPA requires that federal agencies "use all practicable means, consistent with other considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may . . . preserve important historic, cultural, and natural aspects of our national heritage."⁸

To this end, in March 2013 the two agencies charged with promulgating regulations for the NHPA and NEPA - the Advisory Council on Historic Preservation (ACHP) and the Council on Environmental Quality (CEQ), respectively -- issued a joint handbook entitled "NEPA and NHPA: A Handbook for Integrating NEPA and Section 106" (NEPA/NHPA Handbook).⁹ The NEPA/NHPA Handbook, in turn, describes and details integration of the two processes through two methods: (1) coordination of NHPA and NEPA processes; and (2) substation of the NHPA process with the NEPA process.

For one to understand how to integrate the NHPA and NEPA processes, however, one must first understand the processes themselves. These processes are discussed in the following sections.

II. The NHPA and the Section 106 Consultation Process.

In 1966, Congress passed the NHPA with a finding that "the preservation of the [Nation's] irreplaceable heritage is in the public interest . . . ."¹⁰ In furtherance of this finding, the NHPA and its implementing regulations created a process by which federal agencies are required to

[Page 8-3]

consult with interested parties to identify historic properties, assess the adverse effects of proposed federally funded or permitted undertakings on such properties, and attempt to mitigate such adverse effects on those properties.¹¹ This NHPA process is commonly known by its original Public Law designation as a "Section 106" consultation, and the process by which the consultation is conducted is the "Section 106 process."

Before discussing the Section 106 process, however, practitioners should be aware that, prior to December 2104, the NHPA had been codified at 16 U.S.C. ?? 470 et seq. for almost half a century. Most published opinions considering the NHPA therefore use these former (16 U.S.C. ?? 470 et seq.) citations. However, as a result of the December 19, 2014, National Park Service and Related Programs Act,¹² the NHPA was re-codified into scattered sections of U.S.C. Title 54, "except with respect to rights and duties that matured, penalties that were incurred, or proceedings that were begun before the date of enactment of this Act."¹³ Thus, for example, NHPA Section 106, which governs the Section 106 process and which was previously codified as 16 U.S.C. § 470f, is now codified at 54 U.S.C. § 306108.

NHPA Section 106 mandates that any federal agency having jurisdiction over any proposed federal or federally assisted "undertaking" shall, prior to the approval of the expenditure of any funds or issuance of any license or permit for the undertaking, "take into account the effect of the undertaking on any district, site building, structure, or object that is included in or eligible for inclusion in the National Register."¹⁴

Pursuant to the NHPA and its amendments, the ACHP has promulgated regulations creating a process by which Section 106 is implemented. The Section 106 process itself is governed by NHPA's regulations. These regulations are found at 36 C.F.R. part 800, and are not affected by the 2014 recodification of the NHPA.¹⁵

These regulations have, in turn, describe a four-step Section 106 process,¹⁶ as follows:

1. Section 106 Step One: Is the proposed action an "undertaking"?

Section 106 applies only to "undertakings," which are defined by regulation as "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

[Page 8-4]

carried out with Federal financial assistance; and those requiring a Federal permit, license, or approval." ¹⁷ A project is an "undertaking" triggering the Section 106 process, therefore, if any federal funds will be used, or if any federal permit, license, or other approval will be required. If there is no "undertaking," then the Section 106 process is over.

2. Section 106 Step Two: Consult to determine if the undertaking affects eligible historic properties.

If the proposed project is an undertaking, the relevant federal agency (for example, the agency charged with issuing a requested permit) must determine if the undertaking could affect properties listed or eligible to be listed on the National Register of Historic Places. ¹⁸ A "historic property" under NHPA is "any prehistoric or historic district, site, building, structure, or object included on, or eligible for inclusion on, the National Register [of Historic Places], including artifacts, records, and material remains relating to the district, site, building, structure, or object." ¹⁹

Determining whether an undertaking could affect historic properties involves two sub-analyses: (1) determining the undertaking's area of potential effects (APE); and (2) identifying whether any eligible historic properties exist within the APE. ²⁰ The APE is defined by regulation as "the geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist." ²¹

The action agency is to consult with appropriate "consulting parties" in making this determination. ²² "Consulting parties" include officials created by the NHPA to administer state and tribal historic programs (known respectively as State Historic Preservation Officers (SHPOs) and Tribal Historic Preservation Officers (TPHOs)), as well as relevant Indian tribes, local governments, and project applicants. ²³ In doing so, the agency must make a reasonable and good faith effort to carry out appropriate identification efforts. ²⁴

3. Section 106 Step Three: Assess adverse effects of the undertaking.

[Page 8-5]

If eligible historic properties exist within an undertaking's APE, an assessment is made whether the undertaking may have any adverse effects on the property. ²⁵ An adverse effect is

...