Message #380:
From: AzTeC SW Archaeology SIG
To:   "'Matthias Giessler'" 
Subject: Sec. 110 Guidelines Part 1
Date: Wed, 20 Nov 96 14:43:00 MST
Encoding: 448 TEXT


From: Anne Vawser



The purpose of any plan is to provide the information that is
needed to guide the future actions of others, including
decision-making. An agency's National Historic Landmarks plan may
be generic or property specific.  It can stand alone as a
"preservation plan," or the information may be included in other
appropriate documents. A preservation plan can describe an
approach to protecting the agency's National Historic Landmarks
or it can detail the preservation treatments for a specific
landmark property.
6.   Identify National Historic Landmarks at the earliest stages
of project planning (preferably before the NEPA process begins)
and develop project alternatives to avoid them.  If the agency or
an applicant cannot avoid directly and adversely affecting a
National Historic Landmark, then the guidelines under Standard 7
above apply, including consultation involving the Council.


STANDARD 10:   The agency uses available historic buildings to
the maximum extent feasible and undertakes preservation of its
buildings in a manner that is consistent with the agency's
mission and professionally-recognized preservation of similar
buildings. (110.a.1)

Section 110(a)(1) of the National Historic Preservation Act
(NHPA) directs that, to the maximum extent possible, each federal
agency must use historic properties available to it before
acquiring, constructing, or leasing non-historic buildings.  The
section also stipulates that the agency should undertake any
necessary preservation as long as that preservation is consistent
with the preservation of similar kinds of properties and the
agency's mission.

Historic properties can be used positively in two ways:  (1)
continuing use of the building as it has been used traditionally,
and (2) adaptive use which means that the use is different from
but compatible with its original or prior uses and with its
design.  For many federal agencies use of historic properties
means using historic buildings or structures to house activities
directly associated with the agency's mission.  Agency also
should be open to using other kinds of historic properties.  For
example, to promote its government-to-government policies, an
agency may decide to permit Native American tribes to use
traditional plant gathering areas that it controls, or an agency
may decide to use an archaeological site as part of an
interpretive facility.

Since they must consider using historic properties "available" to
them, agencies needing the use of non-federal properties should
give priority to using non-federal historic properties.  In such
cases, the agency may find it useful to notify potential
private-sector offerors of this priority and, if feasible, offer
incentives to help ensure that historic properties will be
offered.  Where an agency carries out its mission through the
award of grant funds for specific activities, and where those
activities will inevitably affect historic properties, the agency
should, to the extent feasible, design its grants programs so as
to encourage grantees to retain and make appropriate use of
historic properties in carrying out grant-funded activities.

Note that Section 110(a)(1) does not mandate the use of historic
properties where doing so would greatly increase costs, or where
historic properties will not serve the agency's requirements.
The agency's is responsible for balancing the needs of the agency
mission, the public interest in protecting historic properties,
the costs of preservation, and other relevant public interest
factors in making its management decisions.

An agency with historic properties under its jurisdiction and
control (especially intact buildings) should maintain an
inventory of those properties that notes the current use and
condition of each property.  In addition, the agency should
provide for regular inspection of the properties and an adequate
budget for their appropriate maintenance.  Maintenance should be
consistent with the Secretary's Standards for Treatment of
Historic Properties and the Guidelines for Preserving,
Rehabilitating, Restoring and Reconstructing Historic Buildings.
Section 110(a)(1) authorizes each agency to carry out (or cause a
lessee or concessioner to carry out) whatever preservation work
is necessary (e.g., rehabilitation, documentation, etc.) in
preparation for use. When modification of a historic property is
required, the agency should refer to the guidance in The
Secretary of the Interior's Standards for the Treatment of
Historic Properties.
The relative cost of various management strategies for a historic
property, ranging from full rehabilitation and adaptive use to
demolition and replacement with a modern building, should be
carefully and objectively considered, with reference to the
pertinent requirements of Executive Order 11912, as amended, to
the pertinent criteria established in OMB Circular A-94, and to
the pertinent principles and methods set forth in the National
Institute of Standards and Technology Life-Cycle Costing Manual
(NBS Handbook 135).

Applicable long and short-term costs should be carefully
considered as part of any cost analysis.  Often short-term costs
of preserving and rehabilitating a historic structure are
balanced by long-term savings in maintenance or replacement; on
the other hand, failure to perform needed cyclic maintenance may
shorten the life of a building and decrease the value of
investment in its rehabilitation.

Sometimes an agency can no long use a historic property as it has
been used historically.  In these cases, the agency should
consider a wide range of adaptive use options that are feasible
given its own management needs, cost factors, and the needs of
preservation.  As provided for in section 111 of the NHPA, the
agency should consider leases, exchanges, and management
agreements with other parties as means of providing for the
continuing or adaptive use of historic properties.  A use that
severely damages or destroys a historic property is inconsistent
with the intent of Section 110(a)(1) of the NHPA.

Occasionally, an agency finds that it cannot maintain a historic
property or group of historic properties or rehabilitate them for
contemporary use. In these situations, the agency may elect to
demolish the historic property, modify the property in ways that
are inconsistent with the Secretary of the Interior's Standards
for the Treatment of Historic Properties, or allow the property
to deteriorate.  The agency's decision to act or not act to
preserve and maintain historic properties should be an explicit
one, reached within the framework of the section 106 process, and
in relation to other management needs.  If an agency decides that
it will demolish or substantially alter a historic property, then
the agency must provide for appropriate recording of the historic
property in accordance with Section 110(b), which Standard 8
addresses.


STANDARD 11:   The agency does not grant loans, loan guarantees,
permits, licenses or other assistance to an applicant who
intentionally damages or destroys a historic property to avoid
having to comply with section 106.  (110.k)

If an historic property is destroyed or irreparably harmed with
the purpose of circumventing or preordaining the outcome of
section 106 review (e.g., demolition or removal of all or part of
the property), then Section 110(k) of the National Historic
Preservation Act (NHPA) directs that the agency considering the
application withhold the assistance (e.g., grant loans, loan
guarantees, permits, and licenses).  If the agency, in
consultation with the Advisory Council, determines that
"circumstances justify granting such assistance despite the
adverse effect created or permitted by the applicant," then the
agency may go forward with granting the assistance.

When an applicant destroys or harms a historic property to avoid
Section 106 review, it is called "anticipatory demolition."  To
avoid anticipatory demolition situations, federal agencies need
to be proactive in educating its employees and potential
applicants about this section of the NHPA.  Agency employees must
understand that they cannot grant the assistance, and the
applicant must know that the agency will not grant the
assistance.

If the agency suspects that anticipatory demolition has occurred,
it will have to demonstrate that (1) the property has been
significantly adversely affected; (2) that the applicant is
directly linked to the destructive activity or had the legal
power to prevent it and did not; and (3) the destruction was
intentionally done to avoid Section 106 review.  Documenting that
a historic property has been adversely affected usually is
straight forward.  Before and after photographs are often the
best documentation.  Photography of the destruction in progress
is even better.  Applicants usually control what happens to the
properties in question so their link to activities that occur on
the property is often a matter of record.  For example, backhoe
operators who level earthworks are usually hired and paid by the
property owner or the person who controls the property.  Arson
for hire is the major exception--it is often impossible to
establish a link between the anticipatory demolition in the form
of arson and the person who controls the property.  In order to
deal with an ongoing arson problem, one public agency found it
necessary to restrict from public distribution some of the
specific information on the historic buildings located in areas
where it anticipated future projects involving Section 106
compliance.

Demonstrating that the applicant caused the destruction to avoid
Section 106 compliance can be difficult.  The agency must be able
to demonstrate that the applicant knew, or in all likelihood
knew, that such destruction would prevent the agency approving
the application.  The agency can do this by showing that the
applicant had the information.  The agency could demonstrate this
by showing that everyone who inquired about the agency's
application procedures received a written statement on the
agency's anticipatory demolition policy.

Agencies that have problems with anticipatory demolitions should
consider going one step further and educating "future" or
"potential" applicants about the agency's anticipatory demolition
policies.  Often this can be done in conjunction with other
agency activities such as public meetings, distribution of
information brochures, and speeches to community groups.  In
addition, such agencies may wish to incorporate its anticipatory
demolition policies and procedures into its agency regulations or
procedural guidelines.

Section 110(k) does permit the federal agency, after consulting
with the Advisory Council, to approve the assistance if
circumstances justify doing so.  These circumstances may include,
but not be limited to, the agency finding that (1) the
destructive act was inadvertent or an accident;  (2) the
applicant did not have control over the destructive act or could
not have prevented it; or  (3) the applicant could not have been
expected to know that anticipatory demolition was wrong.


STANDARD 12:   The agency consults with the Secretary of the
Interior regarding its preservation program.  (110.a.2)

The Secretary of the Interior through the National Park Service
routinely consults with other federal agencies.  Most of these
consultations are informal and program- or project-specific.  The
National Park Service wishes to continue consulting with federal
agencies in this way.

For the purposes of meeting Standard 12, however, a federal
agency should send a letter to the Associate Director, Cultural
Resource Stewardship and Partnerships at National Park Service,
P.O. Box 37127, Washington, D.C. 20013-7127stating that the
agency requests consultation with the National Park Service
regarding its programs and activities associated with Section 110
of the National Historic Preservation Act (NHPA).  In addition,
the agency should submit a brief, concise letter or report
describing how it meets the above standards or that the
particular standard is not relevant given the agency's mission or
jurisdiction over historic properties.  This letter/report may be
sent with the letter requesting consultation or later following
discussion with National Park Service staff.  The National Park
Service will base its comments on how well the agency's program
and activities achieve the standards presented above.  The
National Park Service will ask the Advisory Council to provide
data relevant to Standard 7, which calls for agency Section 106
procedures that are consistent with those of the Advisory
Council, as well as other relevant observations from the Council
that may be appropriate.  The information provided to the
National Park Service will be considered public information, and
the National Park Service may use it in responding to requests
for information and status reports on federal agencies' historic
preservation programs.

DEFINITIONS

[Not Included]

1
November 15, 1996



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