FAA in Puerto Rico: How Section 106 Really Works

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Administration Building, San Juan, Puerto Rico CERAP, date unknown.

The following case study of a dispute between the Federal Aviation Administration (FAA) and the Puerto Rico government offers a glimpse of how the National Historic Preservation Act consultation process (known as “Section 106 consultation”) works in practice.

STEP 1: Initiate Section 106 Process

Regulations stress that federal agencies should begin the Section 106 process “at the early stages of project planning.” This is a core concept that is integral to achieving the NHPA’s desired goal of minimizing or mitigating any adverse effects on historic properties. Despite this clear imperative, the director of technical operations for the FAA Eastern Service Area waited until after seismic upgrades were already underway for a complex at the San Juan airport before he contacted the Puerto Rico State Historic Preservation Officer (SHPO; pronounced SHIP-OH) to initiate Section 106 consultation.

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The FAA director’s 11 May 2012 letter unapologetically states that the FAA “has begun work at its San Juan Combined Center Radar Approach Control Facility (ZSU CERAP) to upgrade the facility to conform to seismic standards…and this letter serves as notice that the FAA is initiating Section 106 consultation for the subject project.” To say the least, this was not a positive way to begin the consultation process. Considering the dispute that followed, this negative beginning was portentous of things to come.

STEP 2: Identify Historic Properties

The FAA director’s 11 May 2012 letter also attached a report regarding which buildings within the ZSU CERAP complex may be affected by the renovation. The FAA asserted that, for Section 106 purposes, the San Juan complex should be evaluated as three distinct properties (the Administration building, the Operations building, and the Mechanical building), rather than one single building with multiple wings. Since the FAA separated the buildings for its report, the agency was able to conclude that only the Administration building was historically significant. Thus, the FAA believed that only the potential adverse effects on the Administration building needed to be evaluated because the Operations and Mechanical buildings were not historically significant and they no longer retained their historic integrity.

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ZSU CERAP Site Plan

Much to the dismay of the Federal Aviation Administration, which had requested an expedited review, the Puerto Rico SHPO disagreed with the agency’s attempt to separate the buildings into three discrete units. The SHPO’s 23 May 2012 letter contended that “the ZSU CERAP was originally designed as one building consisting of three interconnected wings” and that “these three wings constitute a historically and functionally related unit and, therefore, we believe should be evaluated as one building.” Since the Puerto Rican government viewed the ZSU CERAP as one building, the SHPO argued that any potential adverse effects on all three wings—not just the Administration wing—should be considered during the Section 106 process.

The SHPO also rebutted the FAA’s claim that the Operations and Mechanical wings no longer retained the “ability to convey [their] historic significance (integrity).” Without elaborating further, the SHPO simply stated that “although the upgrades currently in progress have altered the characteristics that qualify the…building for inclusion in the National Register, it still retains the ability to convey its significance.” Finally, the SHPO asked for additional information regarding the history of the buildings.

STEP 2.5: Resolve Eligibility Disagreement

The FAA provided the requested information on 24 August 2012, but held firm to its position that only the Administration building was eligible for the National Register. Likewise, the Puerto Rico SHPO’s 21 September 2012 response did not give ground on the contention that all of the buildings/wings were eligible for the National Register. Before the FAA and the Puerto Rico SHPO could move on to the third and fourth steps (assess and resolve adverse effects) of the Section 106 consultation process, they had to resolve their disagreement over which buildings were eligible for the National Register.

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Operations Building during seismic upgrade, ca. 2012.

As required by Section 106 regulations, the FAA wrote a letter to the Keeper of the National Register on 14 November 2012 (including the FAA’s 26-page determination of eligibility report) to request a final determination of eligibility for the three buildings. Some time after 15 January 2013, the Keeper issued a Determination of Eligibility Notification to settle the matter. Although the Keeper’s conclusions can get confusing when discussing the different eligibility criteria, here is the most important determination:

It is the opinion of the Keeper that the San Juan Combined/Center Radar Approach Control Facility should be considered a single resource based on the functional relationship of the design and use of the property and the interconnected utilities of the complex. This determination is based on National Register guidance that looks at the physical AND functional relationship between buildings.

The Keeper agreed that the Administration building—and the entire complex by extension—was eligible for the National Register. As a result, the FAA will now have to evaluate any potential adverse effects to the Operations and Mechanical wings (although these wings have already lost their historic integrity due to the seismic upgrades), in addition to the Administration wing.

Do you agree with the Keeper’s determination? Is there a better way to handle these disputes or to avoid them altogether? Let me know your thoughts in the comments below.


Clint Tankersley is a Georgia attorney specializing in cultural heritage law. Read my bio here.