The North Carolina in the Civil War Message Board

IMPORTANT, Preservation Threat

CRITICAL HEARING PORTENDS CHANGES TO NATIONAL HISTORIC PRESERVATION ACT:

Property Rights and Reform Pitted Against A Flexible, Thorough Section 106

Yesterday, the House of Representatives Subcommittee on National Parks heard testimony on a "discussion draft" proposing changes to the National Historic Preservation Act including Section 106 and other provisions related to owner consent in the National Register nomination process . The Act and its provisions lay out how historic resources are considered and protected during federal undertakings.

Subcommittee members John J. Duncan (R-TN), George P. Radanovich, (R-CA), Luis Fortuno (R-PR), Donna Christensen (D-VI), and Dale Kildee (D-MI) led by Subcommittee Chair Devin Nunes (R-CA) considered the importance of private property and the rights of ownership in the context of altering the scope and procedures of historic resource protection as currently legislated by the Act .

The hearing set out challenges to the Act focused on what are perceived to be abuses of "loopholes." Arguments in favor of the changes cited how National Register of Historic Places (NRHP) designation is explained to owners of potential NRHP properties without disclosing occasional liabilities of historic status, including difficulty securing mortgages for designated properties. The discussion reflected a misunderstanding of the relationship between National Register status and local regulatory ordinances, and seemed to conflate bad exceptions into common problems requiring substantial "reform."

Those in favor of the amendments to Section 106 propose to limit consideration of historic resources to those already listed on the National Register and those formally determined eligible by the Secretary of the Interior seeking to reduce cost, review time, and the process’s alleged unwieldiness by considering only what is "truly significant" and already recognized – not the tremendous volume of resources that might be important. This approach, characterized as "common sense" by its advocates, was exemplified by Chairman Nunes who explained "if everything is special, nothing is."

Representative John Duncan, expressed support for the amendments and noted the importance of private property and an owners rights as essential to the nation’s economic health. He noted that 50% of the country is owned by local, state or federal government and quipped, "anybody who can’t understand why this is bad should read more."

Representative George Radanovich expressed his concerns that provisions within the NHPA were frequently abused as a tool to promote a "no growth" agenda. The "discussion draft," he felt, addresses these abuses.

A Virginia property owner testified that he felt his property rights had been "trampled on" by his home’s listing on the National Register, which treated his house as "a resource not a home."

Also testifying for the changes was Michael F. Altschul, General Counsel for the CTIA, the Wireless Association who summarized the impact of Section 106 on industry. He began by stating the industry’s commitment to cultural resource protection, then explained how the industry serves the underserved (those in remote areas and the tribes) and how wireless capability is crucial for public safety. Private citizens and emergency response crews use the same system, he noted. He claimed that the definition of what is eligible for the National Register is too vague and expressed the need for "certainty in the review process."

"What is eligible (for the National Register)," he asserted, "has strayed from the original intent of the law," he said. "The meaning and scope of Section 106 has been expanded in a way that renders the National Register of Historic Places irrelevant."

Witnesses against the changes included James Martin, Executive Director of the United South and Eastern Tribes, Emily Wadhams, Vice President of Public Policy at the National Trust, and John Nau, Chair of the Advisory Council on Historic Preservation. Jan Matthews, Associate Director of Cultural Resources within the National Park Service provided testimony from that agency.

Martin made a case for maintaining the current language that solicited some Subcommittee interest. He noted that most resources significant to the tribes, including many sacred sites are not listed on the National Register for good reason. Listing has commonly resulted in looting. In addition, the Tribal Preservation Offices lag behind the State Historic Preservation Offices in survey of significant sites in part because they started after the SHPOs were in place, and in part because they simply don’t have enough money (the THPOs received about 3.5 million last year to divide among over 50 offices.) From the Tribes’ point of view, the NHPA provisions that include tribal consultation were established to fulfill promises.

The tribes currently rely on the Section 106 process to "give them a place at the table ." Martin noted that the current process only requires consultation , but does not insure that projects will change due to a tribe’s input or objections. This point prompted Representative Dale Kildee to ask whether or not the current law was strong enough, or if the law should be changed to provide tribes with more than consulting rights, that is, veto rights. Martin agreed that the Act could be amended to afford Native Americans a greater voice in the Section 106 process.

John Nau, representing the Administration through the ACHP , stated that Section 106 is a flexible process that has, for the most part, worked because it allows for administrative resolutions (programmatic agreements, alternative procedures and program comments) on a case-by-case basis. The ACHP has been consulted over the last few years as changes to the NHPA have been brewing, targeted toward increased property rights, something the Administration and Mr. Nau strongly support. The ACHP, Nau noted, has been concerned that in some cases, local governments have been using National Register status to trigger local controls. The ACHP has come out against this practice; "discussion draft" language related to CLGs reflects the ACHP position.

Wadhams , representing the National Trust, articulated why changes to the law would have a devastating effect on historic resource protection in this country and expressed great concern that anecdotal evidence related to perceived abuse s would substantiate changes to a good law. Christiansen, the subcommittee’s minority chair questioned whether or not there was real evidence that Section 106 wasn’t functioning as is.

Cmpelling support for the National Historic Preservation Act was countered by clear momentum toward amending it . To the current policy’s advocates, Chairman Nunes explained, "saying that there shouldn’t be any change just seems like you’re protecting you own turf." Clearly, there is great support for changes among some of the most outspoken members of the Subcommittee. Anyone concerned about historic resource protection in this country should contact their House of Representatives Resource Committee members TODAY and let them know how the proposed changes would negatively affect historic preservation, citing examples in your district.

RESOURCE COMMITTEE MEMBERS:Don Young (R-AK), Jim Saxton (R-NJ), Elton Gallegly (R-CA), John J. Duncan Jr. (R-TN), Wayne T. Gilchrest (R-MD), Ken Calvert (R-CA), Barbara Cubin (R-WY), George Radanovich (R-CA), Walter B. Jones Jr. (R-NC), Chris Cannon (R-UT), John E. Peterson (R-PA), Jim Gibbons (R-NV), Greg Walden (R-OR), Thomas G. Tancredo (R-CO), J.D.Hayworth (R-AZ), Jeff Flake (R-AZ), Rick Renzi (R-AZ), Stevan Pearce (New Mexico), Devin Nunes (R-CA), Henry Brown (R-SC), Thelma Drake (R-VA), Luis Fortuno (R-PR), Cathy McMorris (R-WA), Bobby Jindal (R-LA), Louis Gohmert (R-TX), Marilyn Musgrave (R-CO), Dale E. Kildee (D-MI), Enj i F. H. Faleomavaega (D- American Samoa), Neil Abercrombie (D-HI), Frank Pallone, Jr. (D-NJ), Donna Christensen (D-VI), Ron Kind (D-WI), Grace F. Napolitano (D-CA), Tom Udall (D-NM), Raul M. Grijalva (D-AZ), Madeleine Bordallo (D-GU), Jim Costa (D-CA), Charlie Melancon (D-LA), Dan Boren (D-OK), George Miller (D-CA), Ed Markey (D-MA), Peter De Fazio (D-OR) Jay Inslee (D-WA),Mark Udall (D-CO), Dennis Cardoza (D-CA) Stephanie Herseth (D-SD).
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