A common refrain among Americans is that anything requiring approval from federal or state agencies too often requires an inordinate amount of time and energy. Regardless of the veracity of this claim, it is undoubtedly true that permit applicants and government agencies frequently have conflicting interests. Applicants desire a quick approval process to maximize profits and efficiency, while agencies seek a thorough, unhurried process in order to ensure that all legal requirements have been met.
Like many agency actions, the balancing of interests required for the consultation process regarding the effects of projects on historic properties—called Section 106 review—can be quite time intensive. Although regulations from the Advisory Council on Historic Preservation (ACHP) require state and tribal historic preservation offices (SHPOs) to “respond” to Section 106 applications within thirty days, the process can be extended drastically beyond that mark if there is a need for additional documentation or mitigation of adverse effects. For example, the National Endowment for the Humanities advises applicants that the Section 106 review process “may take between several months to a year for NEH to complete, depending on the complexity of the project and the cooperation of the awardee or offeree.” This post proposes a contract-based solution to expedite the Section 106 process in a manner that is mutually beneficial to both applicants and agencies.
Overview of Section 106
The Section 106 process is required for any project undertaken by a federal agency, and by extension, any project that receives federal funding or requires federal approval, if the project has the potential to affect historic resources. As a result, local governments, private companies, and individuals are often the primary applicants for Section 106 consultation because their projects are either federally funded or require federal permits. The Section 106 process can require applicants to complete up to four steps: (1) survey project area to find potentially affected historic properties, (2) determine how those historic properties may be affected, (3) explore measures to avoid or reduce adverse effects (if any) on historic properties, and (4) reach an agreement with the SHPO on such measures to resolve any adverse effects.
If a project is determined to have no adverse effect, it is quite possible for a consultation to be concluded in as little as thirty days. Conversely, if adverse effects are expected, the mitigation and negotiation procedures (steps 3 and 4) can substantially delay completion of the Section 106 process. This extended exercise not only expends significant agency time and taxpayer dollars, but also delays the potentially positive social and economic impacts that may result from the completion of a proposed project. However, the need for a thorough review of potentially adverse effects on historic properties is an essential element of the country’s historic preservation program.
Federal Expedited Review of Preservation Projects
In order to expedite Section 106 review without compromising its important role in the preservation of historic resources, there should be an optional federal program available to allow applicants to receive rapid project approval in exchange for monetary or other consideration. At first blush, this proposal may be perceived as large-scale, legalized graft; however, similar programs have been successfully implemented at the state level. For example, the city of Deadwood, South Dakota recently formalized a decade-long arrangement with the South Dakota SHPO that provides the city with expedited Section 106 review—an average turnaround of only three days—in exchange for an annual payment of $51,500. The South Dakota SHPO uses the cash to cover the salary of a state employee who is dedicated to reviewing preservation projects from Deadwood.
Another innovative, private solution that helps expedite the Section 106 process is Georgia’s FindIt program. Georgia Transmission, a private corporation that builds high-voltage transmission lines, has partnered with the Georgia SHPO to have students from the University of Georgia survey historic properties in rapid growth regions (i.e. regions where the corporation plans to build new transmission lines) in exchange for paying a large annual sum of money to the state. By arranging for these preemptive surveys, Georgia Transmission has already completed the initial step of the Section 106 process and has earned a glowing reputation for surveying and preserving historic resources.
The proposed Federal Expedited Review of Preservation Projects (FERPP) program is based on the Deadwood/FindIt model: applicants pay (money or in kind) SHPOs in exchange for expedited Section 106 review. The payments can be part of a long-term agreement to be paid annually—as with the South Dakota and Georgia programs—or applicants can pay a one-time fee (based on the size and scope of the work) to expedite the review process for a single project. For long-term agreements, it may be possible to hire a dedicated in-house preservation professional to review the applicant’s projects. However, large one-time FERPP applications that cannot be completed expeditiously by SHPO staff can easily be outsourced to preservation firms or independent professionals. If an applicant is not willing or able to provide monetary compensation in exchange for an expedited review, then the FERPP program should be flexible enough to accommodate in kind payments, such as preservation easements, public service announcements, or education programs.
The benefits and beneficiaries of the proposed FERPP program are many. Within the transaction itself, applicants benefit from a rapid response to their application while the SHPO earns revenue and reduces its backlog of applications for Section 106 review. Applicants, especially businesses, also earn public good will, which will likely increase the appeal of their particular brand—just as “going green” has improved the image of many corporations in recent years. As previously mentioned, local, state, and national economies will benefit from the FERPP program because needful projects will be completed in a shorter amount of time. When large sums of money are exchanged, especially for long-term agreements, the FERPP program actually creates jobs, whether in-house or outsourced. However, perhaps the broadest, most far-reaching benefit of the FERPP program is its potential to promote the efficient and effective preservation of the nation’s historic resources.
No new law or regulation is necessary for the initiation of the FERPP program. Although federal regulations set the maximum number of days allowed for a SHPO to respond to a 106 application, they do not require a minimum period of review. Likewise, general contract law permits state governments to enter into such agreements with other parties, as is evidenced by the Deadwood agreement. Nevertheless, due to the novelty and rarity of FERPP-related programs, some semblance of federal direction or approval would be instrumental in the nationwide proliferation of the FERPP program. Ideally, a new law or resolution could be passed to explain the details of the program, or at least declare such programs to be in line with United States policy; however, new ACHP regulations or guidelines could be nearly as effective.
In an era of austerity and disdain for increased government spending, the acquisition of funds for historic preservation has become increasingly difficult. More than ever, preservationists must generate bold ideas and creative solutions in order to accomplish their goals. The proposed Federal Expedited Review of Preservation Projects program is an audacious, yet feasible, answer to the protracted process of Section 106 review: applicants pay a fee in exchange for expedited consultation. Without raising taxes, increasing spending, or making any budget cuts, the FERPP program simultaneously accelerates Section 106 consultations while maintaining the integrity of the review process. Since Congress has recently condoned expedited Section 106 review in some circumstances (e.g., United Federal Review), the approbation of this bipartisan, budget neutral proposal is an attainable objective that should be pursued.
Clint Tankersley is a Georgia attorney specializing in cultural heritage law. Read my bio here.