"Advisory Council on Historic Preservation Dodges Budget Axe and Moves Forward with Regulations,"


Author: Edward M. Green.

Despite being targeted for termination by the House Appropriations Committee, the Advisory Council on Historic Preservation ("ACHP") recently managed to survive the budget axe, at least for now, and moved forward with regulations implementing § 106 of the National Historic Preservation Act ("NHPA").

The Budget

Although the Administration had requested a little over $3 million for funding of the ACHP during fiscal year 1996 (which begins on October 1, 1995), on June 20 the Interior Subcommittee of the House Appropriations Committee voted to approve only $1 million which was to be used for "expenses necessary for the orderly closure of the [ACHP]." The Subcommittee's action was endorsed by the full House Appropriations Committee on June 30, when it favorably reported H.R. 1977, the Interior Appropriations bill for FY '96.

In a surprise move, however, Congressman Bernard Sanders (I-VT), the only member of Congress who is an Independent (and a self-styled Socialist), introduced an amendment to restore the funding of the ACHP to the more than $3 million requested by the Administration. The amendment would accomplish this by transferring $2 million to the ACHP from the salaries and expense account of the Office of the Secretary of the Interior. Although the amendment was opposed by Congressman Ralph Regula (R-OH), who chairs the Interior Appropriations Subcommittee, it was supported by an odd duo of the veteran Congressman Bruce F. Vento (D-MN), a leading environmentalist (who is no friend of Bruce Babbitt), and Congressman Philip S. English (R-PA), a first-term conservative. The amendment passed on a recorded vote of 267 ayes and 130 noes.

While the effort in the House Appropriations Committee to terminate the ACHP was largely driven by the anger resulting from the ACHP's over-zealous proposed rules of October 3, 1994, dealing with the § 106 review process of the NHPA, what probably saved the ACHP's funding was the argument put forward by both Congressmen Sanders and English that the activities of the ACHP assist local communities in resisting the actions of federal agencies unsympathetic to local concerns. Transferring funds from the office account of the Secretary of the Interior to the ACHP generated support for the amendment too, because Interior Secretary Bruce Babbitt is not terribly well-liked by many members, and, in some respects, is a "whipping boy" for President Clinton.

The Senate will probably begin work on H.R. 1977 later this summer. While it is speculative to predict the sentiment of that body for continuation of funding for the ACHP, clearly the ACHP and its supporters have the upper hand as the next phase of the debate on funding begins.

The Regulations

In the meantime, at its regular quarterly meeting held in Denver on June 26, the ACHP agreed to move forward with a pared down new draft of regulations implementing the NHPA § 106 process. Under § 106, the head of a federal agency that proposes to fund, carry out, or license an "undertaking" that may affect an historic property must give the ACHP an opportunity to comment on the proposed undertaking. It was generally agreed that the October 3 proposal should be withdrawn and that a new proposal should be published in the Federal Register for comments around October 1, 1995. Prior to publication in the Federal Register, it was agreed that ACHP staff would seek informal comments from user groups, especially those commentors on the October 3 proposal, by mailing a draft of the new proposal during the month of July, asking for informal comments within 30 days of the mailing, and perhaps holding user group meetings during that time.

In reaching this approach, ACHP members discussed the need for any new regulations to be as non-proscriptive as possible. As for the substantive content of the new draft, ACHP Deputy Executive Director and General Counsel John Fowler told ACHP members that a particularly troublesome issue (still being worked on for the new draft) was how and whether to factor the NHPA § 106 process into federal regulatory programs involving permitting. The question of what undertakings were "significant" also remained difficult. Fowler said that the objective of the new draft was to respond to comments received regarding the October 3 proposal, while hewing to the Administration's principles of regulatory reinvention. The new draft, he said, was much shorter than the October 3 proposal, and it was anticipated that many aspects of that proposal would find their way into guidelines to be prepared by the National Park Service and the Council on Environmental Quality. The new draft would emphasize the advisory nature of the ACHP and withdraw the ACHP from review of "findings of no adverse effect." The draft enhances the role of the applicant and clarifies the role of the public. The "notice of violation" concept has been dropped along with any role of the ACHP to engage in binding dispute resolution. In conclusion, Fowler said the new draft "goes to the heart of the 106 process and gives lots of leeway to agencies." It represents a substantial victory for industry opponents of the ACHP's overreaching October 3 proposal.

Summing Up

The upshot of both the debate on funding of the ACHP and the content of its new draft regulations remains, of course, to be seen. Regardless of the outcome of those two issues, however, the requirements of the NHPA remain in effect and will govern the activities of all federal agencies. As the House Appropriations Committee correctly recognized in its report accompanying H.R. 1977:

The action of the Committee to terminate Federal support for the [ACHP] in no way negates the legal requirement for all Federal agencies to continue to identify, evaluate, and consider in good faith the impacts of proposed actions on properties included in or eligible for inclusion in the National Register of Historic Places.

Indeed, the House Appropriations Committee intended that termination of funding for the ACHP meant:

that the advisory functions shared by the [ACHP] and the Secretary of the Interior should now be carried out through the Park Service in cooperation with the State Historic Preservation Offices.

H.R. Rep. No. 104-173, 104th Cong., 1st Sess. 110 (1995). Thus, the time-consuming and costly impact of the NHPA § 106 process is likely to continue unless the NHPA and other historic and cultural preservation statutes are reformed to accommodate legitimate historic and cultural preservation values with the need to lessen the burden on private sector developers who at present must cope with agency activities that have become increasingly bureaucratic and expensive.

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Edward M. Green
Senior Counsel – Washington, D.C.
Phone: +1 202.624.2922