In 1983, the comprehensive plan identified McMillan Park, site of a circa 1900 water filtration system, as a site whose essential open space character should be protected from unnecessary development. In 1986, the Army Corps of Engineers, owners of the park, declared it surplus and asked the General Services Administration (GSA) to dispose of it. GSA searched for prospective buyers, insisting on selling the property for mixed commercial development. The District government expressed an interest in buying the property for mixed commercial-public use.
The Advisory Council on Historic Preservation expressed concerns about the transfer and notified GSA of its Section 106 responsibilities. GSA responded by including eight restrictive covenants in the deed of sale to the District of Columbia. The covenants required the District government to submit all development plans for approval by the District's Historic Preservation Officer. The District government purchased the property for $9.3 million; however, it could not develop it until the comprehensive plan promulgated by NCPC was amended to permit commercial development. Following standard procedures, the District government enacted the amendment and submitted it to NCPC. Without going through the Section 106 process, NCPC certified that the amendment would not have a negative effect on Federal interests.
Plaintiffs alleged that NCPC did not abide by the requirements of Section 106 of the National Historic Preservation Act (NHPA) when it approved the District's proposed amendment to the comprehensive plan. Defendants alleged that they were not required to comply with Section 106, since approval of the amendment was not an undertaking.
The district court found that NCPC's review of the amendment was, indeed, an undertaking because NCPC had the authority to approve or to veto it. According to the district court, Congress intended agencies to go through the Section 106 process to facilitate informed decisions about whether an agency action would adversely affect the historic property. The district court also found that "authorization" to veto an amendment is enough to constitute a Federal undertaking and, therefore, requires Section 106 review. 759 F. Supp. at 915. Because NCPC retained the power to approve or disapprove the proposed amendment, the district court determined its review was an undertaking.
The court of appeals reversed the district court on other grounds, determining that NCPC's review of the amendment did not constitute a new undertaking because of GSA's previous Section 106 review. This decision centered on the Council's definition of an undertaking in 36 C.F.R. § 800.2(o). The court focused on the particular part of the definition that states an undertaking includes "new and continuing projects, activities, or programs and any of their elements not previously considered under section 106." 968 F.2d at 1285, 1288, (citing 36 C.F.R. § 800.2(o) (emphasis added)). In interpreting this aspect of the definition, the court determined that a project is not an undertaking if all of its elements have been previously considered under Section 106. Id. at 1287. The court reasoned that if a project had already satisfied the Section 106 process and presented no new, unconsidered elements, nothing would be gained by further review. Id. at 1288.
The appellate court explained that the Council had considered all the elements presented by the amendment at the time of the park's purchase by the District government. When the property was made available, GSA specified in writing that among the possible uses of the property were commercial and residential development. The court noted too that the District government had made clear in writing its intention to commercially develop the property.
Most importantly, the court found that the protective covenants suggested by the Council at the time of the sale indicated Council satisfaction that a change in the park's use designation could be achieved consistent with NHPA. Id. The amendment to the comprehensive plan did no more than codify the change in the park's use designation in the manner previously contemplated by the Council. The Council, however, took the position that there were new elements to the project it had not reviewed.
In reaching its decision, the court of appeals noted that an agency's compliance with Section 106 for a given project does not necessarily satisfy all future obligations it or other Federal agencies may have to fulfill under NHPA for the same project. Id. at 1289. Only where, as in this case, a project has been found by the Council to comply with Section 106, and the same project comes before a second Federal agency with no new unreviewed elements, can a finding be made that further Section 106 review is not required.
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