- U.S. senators argue the National Historic Preservation Act's act's Section 106 causes delays in infrastructure projects nationwide.
- Utah's historic preservation officer testified on ways to revise the act.
- Experts suggest improving the section's language for efficiency without compromising historic preservation.
SALT LAKE CITY — Congress adopted the National Historic Preservation Act in 1966 in response to the unprecedented building that took place after World War II, which led to the destruction of key pieces of history, often without much thought.
However, members of the Senate Committee on Energy and Natural Resources believe the act, which notably created the National Register of Historic Places, unwittingly created confusion that slowed down key infrastructure projects nearly six decades later. That's why there's bipartisan support to explore changes to a section of the law that could address the issue, following testimony from Utah's top preservation official and other experts on Wednesday.
"The Utah (State Historic Preservation Office) knows that this process should be clear, reasonable and as predictable as possible for not only the good of the agency and proponent, but also for historic properties themselves," said Chris Merritt, Utah's historic preservation officer.
Senators argue that Section 106 of the law doesn't always accomplish that. The section "requires federal agencies to consider the effects on historic properties of projects they carry out, assist, fund, permit, license, or approve throughout the country," as noted by the Advisory Council on Historic Preservation. It also allows the council, any interested parties and the public to weigh in on projects.
Yet, the language is ambiguous, becoming a "maze without a map" that has delayed big infrastructure projects all over the country, said Sen. Mike Lee, R-Utah, who serves as chairman of the committee.
For instance, Montana-Dakota Utilities, a Montana-based utility company, was given two different instructions on how to list areas of potential effects on a 3-mile electric distribution line planned within its service area, even when it came to private land and important resources that were unaffected within the project area, said Andy McDonald, the company's environmental compliance manager.
Similar issues have slowed multiple renewable energy projects by years in some cases, the committee noted.
"We ought to protect the places that show where we came from and who we are, but over the years, a narrow procedural safeguard has evolved into a sprawling, unpredictable process that now delays some of the very projects our country needs to build and maintain that story," Lee said.
Local preservation experts say it can also lead to negative consequences for historic properties. For instance, holdups with Native American Tribes typically happen when they're not included early in a review process, said Steven Concho, tribal hstoric preservation officer for the Pueblo of Acoma.
Merritt agreed that the Section 106 language is "vague," which can be a problem because he believes ambiguity in the section can also lead to insufficient time or resources to "appropriately plan for these properties," and potentially cause properties to become "a perceived roadblock" for no need.
He believes the language can be improved to create greater reliability in the process, potentially ending conflicts and project holdups. Despite the language now, he said his office reviews about 1,500 federal undertakings every year with a goal of completing them in 15 days, half of its statutory timeline, by communicating with multiple groups to have the best data at the start of each review.
"Perhaps our greatest strength is that we recognize that the Section 106 process was meant to be pragmatic and solution-focused, not a means of stopping projects," he said.
That's ultimately what the committee would like to see from Section 106. There are ways to make it more efficient and more effective to help build important projects without ruining important history, which often happens when agencies don't coordinate early in a project process, said Sen. Martin Heinrich, D-New Mexico, the committee's ranking member.
It's unclear yet what those changes might be or when they'd be introduced, but Merritt suggested looking at funding, procedural and regulatory adjustments when reviewing options to improve the section.
"I think there's an opportunity to streamline," said Sen. Catherine Cortez Masto, D-Nevada, after all three experts brought in to testify said they wouldn't strip the rule altogether.
