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Section 106 Review for Energy Projects: Issues and Recommendations
1. SECTION 106 REVIEW
FOR ENERGY PROJECTS:
ISSUES AND
RECOMMENDATIONS
John Eddins
July 16, 2012
Preservation Combination Conference / TRB ADC50
ADVISORY COUNCIL ON HISTORIC PRESERVATION
PRESERVING AMERICA’S HERITAGE
Photo credit: Vito Palmisano courtesy the Michigan Economic Development Corporation
2. INTRODUCTION
Recent interest in expanding the development and transmission
of energy resources, including renewable energy, presents a
variety of potential impacts to historic properties on and off
federal lands.
While the energy resource types vary, the challenges for the
management of historic properties and completion of the
Section 106 process are largely consistent and include: project
timing, consideration of alternatives for project location and
implementation, tribal consultation and consultation with other
interested parties, and assessing impacts on natural and cultural
landscapes.
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3. MY PRESENTATION - A VERY BRIEF OVERVIEW OF ISSUES AND
RECOMMENDATIONS REGARDING SECTION 106 REVIEW FOR ENERGY
DEVELOPMENT PROJECTS
VISUAL SIMULATION OF CAPE WIND FROM HYANNIS PORT, NEAR KENNEDY COMPOUND
08/06/12 ADVISORY COUNCIL ON HISTORIC PRESERVATION 3
4. ADVISORY COUNCIL ON HISTORIC
PRESERVATION
Appointed
membership
Responsible for
overseeing the Section
106 review process
Advises the President
and Congress
Important role in
setting national policy
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5. ACHP ROLES
developed and interprets the Section 106 regulations,
“Protection of Historic Properties” (36 CFR 800)
provides guidance and training in the Section 106
process
formally enters into Section 106 consultations
conducted by federal agencies
comments on federal agency compliance with Section
106 for individual cases, programs, and in general
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6. SECTION 106 OF THE NHPA
The head of any Federal agency having direct or indirect
jurisdiction over a proposed Federal or federally assisted
undertaking in any State and the head of any Federal department
or independent agency having authority to license any undertaking
shall, prior to the approval of the expenditure of any Federal funds
on the undertaking or prior to the issuance of any license, as the
case may be, take into account the effect of the undertaking on any
district, site, building, structure, or object that is included in or
eligible for inclusion in the National Register. The head of any such
Federal agency shall afford the Advisory Council on Historic
Preservation established under Title II of this Act a reasonable
opportunity to comment with regard to such undertaking.
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7. THE SECTION 106 PROCESS
1. INITIATE the process
1. INITIATE the process
No undertaking/
potential to cause
effects?
2. IDENTIFY historic properties
2. IDENTIFY historic properties
No historic properties
present/affected?
3. ASSESS adverse effects
3. ASSESS adverse effects
No historic properties
adversely affected?
4. RESOLVE adverse effects
4. RESOLVE adverse effects
Agreement
(MOA)/PA)
or
Council Comment
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8. RECENT INCREASE IN NUMBER AND VISIBILITY OF
UNDERTAKINGS RELATED TO ENERGY
DEVELOPMENT AND TRANSMISSION
desire to reduce dependency on foreign energy
sources
concern to address causes of global warming
and other environmental issues
concern to stimulate job growth and economic
recovery
both renewable and conventional
9. FEDERAL ACTIONS AND THE SCOPE OF FEDERAL
INVOLVEMENT VARIES (SOME EXAMPLES)
Permitting/special use on federally managed lands
– BOEMRE
– BLM, FS, other land managing agencies
Construction of pipelines
– DOS – Presidential Permit for border crossing
– FERC – Interstate Gas Pipelines
Grants
– DOE
– RUS
Environmental Impacts
– Corps of Engineers Permits (Section 404 of CWA and Section 10 of RHA)
– EPA - NPDES
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10. COMMON ISSUES / COMMON PROBLEMS
project timing and Coordination of Section 106
review with the planning process
consideration of alternatives for project location
and implementation
often large land areas involved
direct and indirect effects
range of historic property types affected
Native American Tribal consultation
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11. PROJECT TIMING AND COORDINATION OF
SECTION 106 REVIEW WITH THE PLANNING
PROCESS
sponsored by private entities, early planning and
analysis carried out before active federal
involvement
problems in compiling information about
potential for effects to historic properties early
enough to inform site selection
delegation of responsibilities in the Section 106
review to applicants / project proponents
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12. OFTEN LARGE LAND AREAS INVOLVED
projects that cover large areas
effects on large historic properties with
indeterminate boundaries
effects on historic properties that are
distant from the footprint of the project
direct and indirect effects
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13. RANGE OF HISTORIC PROPERTY
TYPES AFFECTED
standing structures and historic districts
historic/cultural landscapes
archaeological sites and districts
traditional cultural properties
indigenous cultural landscapes
other properties of religious and cultural significance to
tribes and Native Hawaiian Organizations (NHO)
these can be overlapping categories
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14. NATIVE AMERICAN TRIBAL
CONSULTATION
Need to initiate early in the review process
government-to-government consultation
tribal reluctance to consult directly with project
proponents
confidentiality issues
no specific guidance on what constitutes a
reasonable and good faith effort to identify
properties of religious and cultural significance
to tribes
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15. STEPS TO IDENTIFY PROPERTIES OF RELIGIOUS
AND CULTURAL SIGNIFICANCE TO TRIBES
ethnographic / ethnohistoric research
research sponsored or carried out by the tribe
“TCP” studies
oral history interviews with tribal elders and
specialists
field survey by preservation professionals
field survey by representatives of the tribes
tribal monitoring during construction
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16. MULTIDISCIPLINARY TEAMS
Historical landscape architect
Ethnographer, cultural anthropologist
Tribal experts (traditional practitioners, medicine
men, basket-material gatherers, etc.)
Archaeologist
Historian
Agricultural/horticultural/forestry specialist
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17. CONFIDENTIALITY
There is frequently a need to maintain
confidentiality regarding information about
properties of religious and cultural significance to
tribes while gathering the information necessary
for the Section 106 review and consultation. At
times, it is difficult to achieve both goals
simultaneously.
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18. RECOMMENDATIONS TO IMPROVE THE
EFFICIENCY AND EFFECTIVENESS OF THE
SECTION 106 REVIEW PROCESS
early consideration of the potential for effects to
historic properties in planning process
initiate consultation early in planning and review
process
early tribal consultation, reflecting government-
to-government relationship, and sensitive to
confidentiality issues
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19. EARLY CONSIDERATION OF THE POTENTIAL
FOR EFFECTS TO HISTORIC PROPERTIES
pre-selection of areas by potential for effects to
significant historic properties
guidance that highlights the need to include
consideration of effects on historic properties in
the earliest stages of project planning
ensure Section 106 process is initiated early
enough to affect consideration of alternatives
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20. TRIBAL CONSULTATION - 1
formally contact tribes early in its review
process, establish protocols for exchange
of information and protocols to enable
applicant interaction
acknowledge “special expertise” of Indian
tribes in assessing eligibility of historic
properties of religious and cultural
significance
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21. TRIBAL CONSULTATION - 2
federal agencies should seriously consider
tribal concerns
due deference to views of tribes regarding
effects on historic properties integral to
their cultural and religious identity
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22. TRIBAL CONSULTATION - 3
work to resolve conflicts between concerns
about confidentiality and the need for
transparency in the Section 106 review
process
consultation conducted in settings and
conditions that provide for the
consideration of confidential information
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23. ACHP INITIATIVES AND
INTERAGENCY COORDINATION
ACHP / DOI framework for energy projects
CEQ’s Renewable Energy Rapid Response Team
on- and off-shore wind energy development forums/agreements
Tribal Summit on Renewable Energy
Traditional Cultural Landscapes Forum
Native American Traditional Cultural Landscapes Action Plan
Western Renewable Energy and Historic Preservation Wrkgroup
BLM Liaison
ACHP Energy Policy Team - Applicant Toolkit being developed
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24. SAMPLE OF RELEVANT GUIDANCE
ACHP Resources for Energy Projects
(http://www.achp.gov/docs/ACHPResourcesEnergyH
andout_13feb12.pdf)
Federal Oversight and Assistance for Shale Gas
Development and Section 106
(http://www.achp.gov/shale_gas_development.pdf)
Federal Actions that Qualify Development of Wind
Farms as Undertakings Subject to Section 106
(http://www.achp.gov/news_windfarmproject.html)
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25. GUIDANCE SAMPLER - 2
Consultation with Native Hawaiian
Organizations in the Section 106 Review
Process: A Handbook
(http://www.achp.gov/Native%20Hawaiian
%20Consultation%20Handbook.pdf)
Consultation with Indian Tribes in the Section
106 Process: A Handbook - 2012
(http://www.achp.gov/pdfs/consultation-with-
indian-tribes-handbook-june-2012.pdf)
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26. GUIDANCE SAMPLER - 3
ACHP Homepage on Renewable Energy
Development
(www.achp.gov/renewable_energy.html)
Reasonable and Good Faith Identification
Standard Guidance
(http://www.achp.gov/docs/reasonable_good_f
aith_identification.pdf)
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27. CASE DIGEST ENERGY PROJECT
SUMMARIES
Renewable Energy park Project at Ewa Field, Winter 2012
Keystone Pipeline, Fall 2007 and Spring 2011
White Mountain Wind Energy, Summer 2011
Imperial Valley Solar, Fall 2010
West Tavaputs Full Field Gas and Oil Development, Winter
2010
Yucca Mountain Nuclear Repository, Spring 2009
Nantucket Sound Wind Farm Application, Summer 2009
Lake Powell Power and Water Systems, Fall 2009
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28. CASE DIGEST ENERGY - 2
Medicine Lake Highlands Geothermal, Winter 2008
Glen Canyon Dam Project, Spring 2008
Permian Basin MOA for Oil and Gas, Summer 2008
Permits for Exploratory Drilling Mount Taylor, Summer 2008
Columbia River Power System, Winter 2007
Custer National Forest Oil and Gas Leasing, Spring 2007
Overland Pass Pipeline, Fall 2007
Coal and Wind Electric Generation Facility at Great
Falls/Cascade County, Summer 2006
Find them at http://www.achp.gov/casedigest.html
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29. ADVISORY COUNCIL ON HISTORIC
PRESERVATION
1100 PENNSYLVANIA AVE, N.W., SUITE 809
WASHINGTON, D.C. 20004
www.achp.gov
Hinweis der Redaktion
Recent interest in expanding the development and transmission of energy resources, with an increasing emphasis on renewable energy, presents a variety of potential impacts to historic properties on and off federal lands. These impacts include the direct effects of large-scale land development associated with solar or wind energy development on many types of historic properties including archaeological sites, historic structures, cultural landscapes, and properties of religious and cultural significance to Indian tribes and Native Hawaiian organizations as well as the introduction of visual intrusions imposed by the construction of wind turbines, transmission lines, and other facilities. While the technologies of energy resource recovery, generation, and transmission vary, the challenges for the management of historic properties and completion of the Section 106 process are largely consistent and include: project timing, consideration of alternatives for project location and implementation, tribal consultation and consultation with other interested parties, and assessing impacts on natural and cultural landscapes.
My presentation intended to be a very, very brief overview of recent ACHP experience with and initiatives related to energy development projects.
Who we are (As you all know, but by way of context) The Advisory Council on Historic Preservation (ACHP) established in 1966 National Historic Preservation Act (NHPA), is an independent federal agency that promotes the preservation, enhancement, and productive use of our nation's historic resources, and advises the President and Congress on national historic preservation policy.
ACHP developed and interprets the Section 106 regulations, “Protection of Historic Properties” (36 CFR 800) We provide guidance and training in the Section 106 process to federal agencies, SHPOs/THPOs, Tribes, Applicants for federal assistance, permit, or authorization, and other stakeholders Informed by the Criteria for Council Involvement in Individual Section 106 Cases, Appendix A of our regulations, the ACHP enters formally into Section 106 consultations conducted by federal agencies in order to (1) facilitate the Section 106 consultation when there are important procedural or policy issues, (2) significant historic properties are affected, or (3) significant tribal issues and concerns We provide comment on federal agency compliance with Section 106 for individual cases, programs, and in general
Section 106 of the NHPA establishes the requirement for federal agencies to take into account effects of undertakings on historic properties
Federal comply with Section 106 by following the Four step process set forth in the Section 106 regulations (1) Establish undertaking and initiate the Section 106 process (2) Identify historic properties (3) Assess effects to historic properties (4) Consult to resolve adverse effects
Over the last several years, the ACHP has noted an increasing number of projects related to energy development and transmission, many of these related to forms of renewable energy. The increase in projects is a response to our national interest in reducing dependency on foreign energy sources and a concern to address causes of global warming and other environmental issues. These projects were submitted by diverse agencies, including the National Park Service, the United States Navy, the Bureau of Land Management, the Department of Energy, the U.S. Army Corps of Engineers, the Federal Energy Regulatory Commission, the Bureau of Ocean Energy Management, USDA-Rural Development, the U.S. Fish and Wildlife Service and the Tennessee Valley Authority. As a result of the often complex nature of these projects and the high priority to advance renewable energy initiatives, the ACHP has participated in the consultation for such projects at a higher-than-average percentage rate. Many of these participation decisions have been the direct result of specific requests from SHPOs and Indian Tribes for ACHP participation. Most of the projects related to renewable energy have been for wind power and, more recently, solar power. However, there also have been a few related to geo-thermal and bio-fuels. Most conventional energy projects we see are for pipelines for transmission of natural gas, a number of oil pipelines crossing our national border, and more recently activities related to exploration and recovery of natural gas by hydrolic fracturing (fracking).
The federal involvement in these projects varies. Some examples include: i) Permitting/special use on federally managed lands (1) BOEMRE, (2) BLM, FS, other land managing agencies ii) Construction of pipelines (1) DOS – Presidential Permit for border crossing (2) FERC – Interstate Gas Pipelines iii) Grants (1) DOE (2) RUS iv) Environmental Impacts Corps of Engineers Permits for impacts to waters of US for exploration, recovery, and transmission projects EPA - NPDES vi) Varying scope of federal involvement with the undertaking and how that can affect the Section 106 review (1) Often a small federal handle
While the technologies vary, the challenges for the management of historic properties and completion of the Section 106 process are largely consistent and include: project timing, consideration of alternatives for project location and implementation, tribal consultation and consultation with other interested parties, and assessing impacts on natural and cultural landscapes.
Project timing and Coordination of Section 106 review with the planning process i) Often such energy projects are sponsored by private entities with early planning and analysis carried out before active federal involvement ii) There are often problems in compiling sufficient information about potential for effects to historic properties early enough to inform site selection to avoid potential effects to significant historic properties iii) After federal involvement is underway, the assignment to applicants / project proponents of responsibilities for initiation of the Section 106 process and compiling information about the presence of historic properties can cause problems for SHPOs/THPOs, tribes and NHOs, and other consulting parties and stakeholders
Often large land areas involved i) Such undertakings can cover large areas ii) often have effects on large historic properties with indeterminate boundaries iii) can have effects on historic properties that are distant from the footprint print of the project c) Direct and indirect effects, including visual effects on historic properties farther removed from footprint of the project
Range of historic property types affected i) Standing structures ii) Historic districts iii) Historic/cultural landscapes iv) Archaeological sites v) Archaeological districts vi) Traditional cultural properties of assorted types vii) Indigenous cultural landscapes viii) Other properties of religious and cultural significance to federally recognized Indian tribes and Native Hawaiian Organizations (NHO) ix) These can be overlapping categories
Federal agencies have an obligation to engage in government-to-government consultation with federally recognized tribes, but often do not energetically coordinate with tribes to achieve a mutually agreed upon definition of gov-to-gov consultation. This can lead to roadblocks in eliciting the concerns of tribes about properties of religious and cultural significance that might be affected by the undertaking. Tribes often are not content to consult directly with project proponents and often do not wish to share with proponents information about historic properties of religious and cultural significance that they wish to be held in confidence. There is no specific guidance on what constitutes a reasonable and good faith effort to identify properties of religious and cultural significance to tribes.
The process for compiling information about properties of religious and cultural significance to tribes is not standardized, and can include: (1) Professional ethnographic / ethnohistoric research (2) Research sponsored or carried out by the tribe (3) “TCP” studies (4) Oral history interviews with tribal elders and specialists (5) Field survey by assorted preservation professionals (6) Field survey by representatives of the tribes (7) Tribal monitoring during construction
Some of the preservation professionals and tribal specialists that might be involved:
Based on our experience with a range of Section 106 cases related to energy projects and the problems encountered by federal agencies, applicants, tribes, and other consulting parties and stakeholders, we have a general set of recommendations to improve the efficiency and effectiveness of the Section 106 review process for all stakeholders across energy project types. First recommendation: EARLY, EARLY, EARLY
Early consideration of the potential for effects to historic properties: i) Consideration of the potential for presence of historic properties in the project area and effects on historic properties should be integrated into the earliest stages of project planning ii) This could include the vetting and pre-selection of areas that would be open for potential energy projects in part based on the potential for effects to significant historic properties iii) Agencies should provide guidance to potential applicants for permits or assistance that highlights the need for project proponents to include consideration of effects on historic properties in the earliest stages of project planning iv) Federal agencies should ensure that the Section 106 process is initiated early enough in the project planning and review process so it can realistically affect consideration of alternatives and selection of a preferred alternative project site.
Formal Tribal Consultation should begin early and respect the Government-to-Government relationship between the federal government and federally recognized tribes i) The federal agency should formally contact tribes early in its review process, establish protocols for the exchange of information with the tribe and protocols to enable applicant interaction with tribes ii) Federal agencies should acknowledge the “special expertise” of Indian tribes in “assessing the eligibility of historic properties that may possess religious and cultural significance to them.”
Federal agencies should give serious consideration to the concerns expressed by the tribes. Due deference should be given to the views of an Indian tribe regarding the impact on historic properties that are integral to the cultural and religious identity of the tribe before deciding to approve an undertaking that will have an adverse effect on such sites.
Federal agencies should conscientiously and creatively work to resolve conflicts between tribal concerns about confidentiality and the need for transparency in the Section 106 review process Consultation with tribes should be conducted in settings and conditions that provide for the consideration of confidential information about properties of religious and cultural significance and associated beliefs and practices.
Over the past several years, policy makers, politicians, and the public have expressed concerns regarding energy independence, stimulation of job growth and economic recovery, and the development and use of clearer technologies that will benefit the environment and the economy. As a result, the federal government has demonstrated a commitment to expanding the development and transmission of energy resources and to achieve efficiencies in government regulation of energy projects. Interagency efforts are underway to facilitate more efficient project planning and approvals. Following on our experience with the Cape Wind case and in response to the priority of the Administration on moving forward rapidly with renewable energy development and transmission initiatives, the ACHP is actively addressing the implications of renewable energy development and transmission on historic properties through a variety of groups and interagency forums. We have been working with other federal agencies, tribes, project proponents, and other stakeholders to improve the effectiveness and efficiency of the Section 106 review process for energy undertakings and to ensure that federal planning properly addresses preservation interests. A few examples are listed on the slide. More in depth information is available at the ACHP website (http://www.achp.gov/renewable_energy.html) . See additional page of explanatory text
Federal Oversight and Assistance for Shale Gas Development and Section 106 (http://www.achp.gov/shale_gas_development.pdf ) An overview of the kinds of federal actions related to shale gas development projects that make such projects “undertakings” subject to Section 106 review. Federal Actions that Qualify Development of Wind Farms as Undertakings Subject to Section 106 (http://www.achp.gov/news_windfarmproject.html) An overview of the kinds of federal actions related to the development and operation of on- and off-shore wind farms that make such projects “undertakings” subject to Section 106 review.
ACHP Homepage on Renewable Energy Development (www.achp.gov/renewable_energy.html) The ACHP has developed a dedicated subpage on the ACHP’s homepage on renewable energy development, which includes information, tools, guidance, contacts, and other information Reasonable and Good Faith Identification Standard Guidance (http://www.achp.gov/docs/reasonable_good_faith_identification.pdf) The ACHP developed guidance for Section 106 users on meeting the regulatory requirement that federal agencies make a "reasonable and good faith effort" to identify historic properties as part of the Section 106 process. This question frequently arises when agencies are faced with conducting historic property surveys for large and/or linear project areas associated with renewable energy development and transmission projects .
Summaries of a sample of energy project cases that the ACHP has participated in, available in our Case Digests .
