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SAA Members: Attempt to Alter Section 106 in the Works in Congress

A draft bill currently circulating on Capitol Hill would drastically change Section 106 of the National Historic Preservation Act. Section 4 of the draft would alter just one sentence in Section 106, but the effects of this change would be profound.

The draft bill reads: "Section 106 of the National Historic Preservation Act is amended by striking 'or eligible for inclusion in' and inserting 'or determined by the Secretary to be eligible for inclusion in'".

Currently, federal agencies rely on "consensus" determinations of eligibility for Section 106 purposes, reached through consultation between the agency and the State Historic Preservation Officer (SHPO) or Tribal Historic Property Officer (THPO). The requirement for identification of historic properties and evaluation of their eligibility to the National Register is a critical component of the Section 106 process. In order for Federal agencies to consider the effects of their actions on historic properties during planning, they need to know what properties are located within the general area. Because of the vast size of the United States and the depth and richness of our historic and prehistoric record, the great majority of our historic heritage is properties that have not even been recorded yet, much less evaluated for eligibility to the National Register. Currently, agencies determine which properties within the area of a project are eligible to the National Register and must, therefore, be considered in planning by going though the "consensus determination process." In a consensus determination, if the agency and the SHPO or THPO agree about a property's eligibility, then for the purposes of Section 106 the property is treated as eligible or not eligible, as the case may be.

Under this amendment, however, all determinations of eligibility for Section 106 would have to be made by the Keeper of the National Register. The amendment would:

• Significantly increase expenses for cultural resource identification work—the level of detail and documentation accepted by agencies and SHPOs and THPOs or the purpose of consensus determinations is generally substantially less than the levels required by the National Register for a formal determination of eligibility;
• Completely overwhelm the office of the Keeper of the National Register—the Register has a very small staff and every year tens of thousands of historic properties that may be affected by Section 106 undertakings would have to be valuated for eligibility;
• Cause catastrophic delays for development projects funded or approved by Federal agencies—currently, thousands of Federal undertakings move quickly through the Section 106 review process every year. The combination of greatly increased documentation requirements and enormous backlogs of requests for determinations from the National Register would bring the process to a near standstill for highways, mining projects, oil and gas development, and nearly every other category of Federally funded or approved project;
• Result in inappropriate levels of disclosure of sensitive information about places of traditional religious and cultural significance to Native Americans—under the current practice of consensus determinations of eligibility, Federal agencies and Indian tribes have considerable flexibility when the agency is evaluating the eligibility of historic properties of traditional cultural and religious significance. A requirement for formal determinations of eligibility for Section 106 properties would significantly expand the need for disclosure and dissemination of highly sensitive information about traditional cultural properties; and
• Damage states' rights and tribal sovereignty—under the current process, the people of a state have a strong voice in what is considered eligible to the NRHP for the purposes of Section 106 undertakings, given the requirement for SHPO concurrence. Likewise on tribal land, the people of the tribe have a strong voice in what is considered eligible for the purposes of Section 106 undertakings because of the requirement for THPO concurrence in DOEs. The proposed amendment to Section 106 would shift all decision making to Washington, and although there would undoubtedly be opportunities for input from the state or tribe, that is not the same as having the authority to concur or not concur.

Congress needs to hear from those who oppose this provision. Please go to www.house.gov, the House of Representative's home page. On that page is a zip code search engine that will allow you to identify your Member of Congress and link to his or her web page. Most Members have a service on their page that allows you to contact their office via email. In addition, each Member lists their Washington and district office phone and fax numbers on their web page.

When you email, fax or speak to your Representative's office, include the following information:

• WHAT: A draft bill containing a provision adversely affecting Section 106 of the NHPA.
• WHERE: The House Resources Committee's Subcommittee on National Parks.
• WHEN: There will be a hearing on the draft on April 21.
• THEN ASK: That the provision changing Section 106 be taken out of the proposed bill before it is introduced.
• WHY: Use the talking points above to state your case.

Attached is a list of the members of the Resources Committee, and its Subcommittee on National Parks. If your Representative is on these lists, it is especially important that they hear from you.

Thanks very much.

House Resources Committee

All phone and fax numbers area code 202

*National Parks Subcommittee member