Message #63:
From: AzTeC SW Archaeology SIG
To:   "'Matthias Giessler'" 
Subject: Section 106 Regs --  Missed Opportunities 
Date: Fri, 31 Jan 1997 06:46:07 -0700
Encoding: MIME-Version: 1.0

From:	Tom King 
	(donfowler),,,, (jeffdebonis),


Thomas F. King
410 Windsor Street
Silver Spring MD 20910-4242

As I've hacked my way through the thicket of the Friday the Thirteenth
Draft, I've been impressed with the number of opportunities that the
ACHP missed to correct deficiencies in the current Section 106 process. 
Many of these have been identified in the section-by-section discussion
preceding this one (106-E) and alluded to in the discussion of general
deficiencies (106-D), but here are some more.

1. There are now several hundred "CDBG PAs" in place around the country,
through which local governments, to whom HUD may and does legally
delegate Section 106 review for the Community Development Block Grant
program and several other programs, have adjusted the standard Section
106 process to address efficiently the needs of such things as low and
moderate income housing.  Typically, such PAs provide that rehab will
follow the Secretary's Standards for Rehabilitation, with plans and
specifications being reviewed either by the SHPO or by a local
preservation authority; as long as this is done, no further review is
required.  At the very least, I should think it would save time and
paper if the basic provisions of such PAs could be written into the
regulation, so that each local government wouldn't have to reinvent the
wheel.  Beyond this, however, there may well be better ways to handle
programs like CDBG, that could have been addressed had the ACHP sat down
with the local governments to explore possibilities -- without
preconceived notions of what the review process ought to look like. 
This, of course, was not done.

2. Since 1992, state and local regulatory actions carried out under
Federal delegation or approval have been defined as undertakings subject
to Section 106 review.  But I don't think there's a state or local
regulatory program in the cuntry that's actually complying with Section
106.  Why not?  Two reasons. First, nobody knows WHO's supposed to do it
-- the delegatee or approvee, or the delegator or approver.  Second,
nobody knows HOW to do it. Does anybody really want every Coastal Zone
Management permit, every surface coal mining permit, every Clean Air Act
permit, to go through standard Section 106 review?  No, certainly not.
If the ACHP and SHPO workloads are a problem now, consider what they
would be with such an influx.  But if not the standard process, then
what?  PAs?  Maybe, but maybe there are other, better ways.  How state
and local regulatory programs or their federal overseers should comply
with Section 106 is clearly an important issue, since such programs are
explicitly identified in the statute as HAVING to comply.  But the
Friday the Thirteenth Draft is entirely silent on the subject, and to
the best of my knowledge neither the state and local regulatory bodies
nor such oversight agencies as NOAA, EPA, and OSM have been
systematically consulted.

3. Many Federal agencies and SHPOs have over the years adopted policies
and side agreements about how to "streamline" Section 106 review. 
Classic examples are "Memoranda of Understanding" developed between
agencies and SHPOs about how certain kinds of projects, properties, or
effects are to handled, and the "flag and avoid" procedures used by many
agencies -- notably the Forest Service and sometimes BLM -- to create
"no effect" or "no property" situations by jiggering project boundaries
around to avoid direct physical effects on properties.  Although these
arrangements often (at least superficially) simplify life for the
agencies and SHPOs, they tend to create problems of both a substantive
and a procedural nature.

Taking "flag and avoid" as an example: one implements this approach by
identifying properties that may (or may not, because they are seldom
evaluated) be historic, putting flags up around them, and then making
sure they're not bulldozed through or logged over.

Substantive problems include that the cows or deer may eat the flags,
that the catskinner may get confused over which side of the flags he or
she should be on, that the property boundaries may be inaccurately
defined, that the tree may fall the wrong way and crush the cabin, that
the wooded archeological sites in the clear cut may thus be "flagged"
for pothunters, that the loggers, while avoiding cutting trees around
the cabin, may use the cabin itself for chain-saw practice -- all these
things have happened -- and that physical avoidance may not mean
avoidance of effect.  If one is a Native American religious
practitioner, it may be cold comfort to know that your sacred site is
being "avoided" when you're trying to contemplate the universal among
falling trees.  And it may well be that your concern is actually with
the effects of clearcutting or roadbuilding that is at a considerable
remove from your sacred site, but within its viewshed.

The procedural problem is, in essence, that flag and avoid is
inconsistent with the step-by-step character of the regulatory process.
The flagger and avoider typically does not go through the steps of
explicitly evaluating properties and applying the Criteria of Effect and
Adverse Effect; he or she just "does it" -- often without even
consulting the SHPO, and VERY often without consulting anybody else.

Many of the substantive problems with flag and avoid could be remedied
if the agencies who do it DID go through all the steps of standard
review, but that, of course, would defeat the purpose of streamlining. 
So what's to do?  I don't know (though I certainly have ideas), but I do
know that it would have been a good idea for the ACHP to have taken a
look at "illegal adaptations" like flag and avoid, in consultation with
the agencies, SHPOs, and other parties of interest, and tried to figure
out how, in the regulations, they could be made both substantively
responsible and technically legal.  But this opportunity, too, has been

There are doubtless other examples of opportunities missed, that will
occur to others and should by all means be pointed out to the ACHP.  The
basic problem is thatthe ACHP didn't really set out to look at the
Section 106 process and its problems globally and seek solutions; nor
did it engage in the sort of  comprehensive, good-faith consultation
with affected parties that it promotes with other agencies.  The ACHP
will say, of course, with an injured expression, that it did consult.
Since I'm trying hard to avoid ad hominem remarks here, I'll just say
that it ain't necessarily so.

And in the same vein, let me assure the reader -- particularly the ACHP
reader -- that remarks like the above are not meant to impugn the
character, intelligence, or good faith of the bulk of the ACHP staff.
Only the leadership that's been almost  solely responsible for the
Friday the Thirteenth Draft.

END OF 106-F