Archive of Prominent Section 106 Cases:
Ohio: Improvements to the Cleveland Bulk Terminal
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Agency: Corps of Engineers
Criteria for Council Involvement:
- This project will result in demolition/relocation of the Hulett Ore Unloaders, a rare property type (Criterion 1).
- This project raises serious questions about whether the Corps of Engineers can satisfactorily comply with the requirements of Section 106 when it uses Appendix C of its permitting regulations (33 CFR Part 325) (Criterion 2).
- There has been widespread public interest in the adequacy of the analysis of project alternatives and the feasibility of the mitigation plan negotiated with the local landmarks commission (Criterion 3).
On September 28, 1999, the Council advised the Buffalo District of the Corps of Engineers that it failed to document its compliance with Section 106 before issuing a permit for dredging at the Cleveland Bulk Terminal. It is the Councilís position that the dredging was a Federal undertaking subject to Section 106 review since it is a component of the master plan to expand the terminal that will result in the full or partial demolition of the historic machine structures known as the Hulett Ore Unloaders.
Hulett Ore Unloaders, Cleveland, OH
(Photo courtesy of National Trust)
The Council also informed the Buffalo District that if additional Section 404 permits are required in the future for project activities, their actions may have foreclosed the Councilís ability to comment. The Council intends to notify the Chief of Engineers of the possible foreclosure, as well as the Buffalo Districtís failure to properly fulfill the requirements of Section 106 in its handling of the proposed expansion of the Cleveland Bulk Terminal.
The Buffalo District of the Corps received a Section 404 Permit application from the Cleveland-Cuyahoga County Port Authority for dredging to increase docking capacity at the Cleveland Bulk Terminal.
The proposed dredging was a component of a master plan which calls for the redevelopment and expansion of the existing terminal. Phase I of the plan, which commenced this summer, focuses on upland improvements. Phases II and III, slated for 2005 and 2010 respectively, provide for expanding and modernizing the dock facilities for higher volume and a greater diversity of bulk materials.
Upon learning of the permit application, the local historic preservation community expressed concern that the environmental impacts of the proposed dredging not be considered outside the context of the long-term redevelopment project. Preservationists were particularly concerned with the proposed demolition of four Hulett Ore Unloaders and associated buildings, part of Phase I.
The Hulett Ore Unloaders were purchased by the port authority in 1997 after their abandonment in 1992. The 10-story machines, built between 1901 and 1912, permitted ore to be unloaded from ships mechanically, reducing labor costs and expediting unloading.
Following the invention of the machines by George H. Hulett in 1898, more than 80 machines were built. Only six of the machines now remain, four of them in Cleveland. As a result of their unique engineering design, the Cleveland structures were recognized in 1998 by the American Society of Mechanical Engineers as a Historical Mechanical Engineering Landmark.
They were listed in the National Register of Historic Places in 1980 and designated a local landmark in 1993. In June 1999, the National Trust for Historic Preservation included the structures in its list of Americaís 11 Most Endangered Historic Places.
Phase II of the Cleveland Bulk Terminal project, which will require extensive filling and bulkhead construction in Cleveland harbor, is expected to require additional Section 404 permits. The Corps has maintained that each phase of the project, rather than the master plan and resultant plan implementation, is subject to Section 106 review.
Further complicating matters, the Port Authority modified its initial permit application to limit its scope to maintenance dredging only. The Corps approved this permit in May 1999 without first obtaining the written concurrence of the Ohio State Historic Preservation Officer (SHPO).
By letter of June 2, 1999, the Council advised the Corps that it was in violation of Section 106 since the Ohio SHPO objected to the Corpsí determination of No Effect. The Corps responded by citing provisions in Appendix C of the Corpsí permitting regulations (33 CFR Part 325) as justification for issuance of the dredging permit.
While Corps involvement triggered Section 106 review, the project has also been subject to the local landmarks review process. In November 1998, the Cleveland Landmarks Commission received a request from the Port Authority for a Certificate of Appropriateness to allow demolition of the Hulett Ore Unloaders.
The commission denied the application and imposed a six- month waiting period during which the Port Authority and preservationists were to negotiate to seek a means of preserving the property. To facilitate this effort, the commission appointed a subcommittee to hear testimony and review reports regarding alternative treatments.
When the waiting period expired in June 1999, the Port Authority was given yet another six- month waiting period. Finally, local preservationists and the Port Authority agreed on a compromise proposal, which provides for demolition of two of the Hulett Ore Unloaders, dismantling of one for relocation and interpretation at a suitable site, and retention of the fourth structure for six months while funds and siting options are further explored. The commission passed a resolution in July 1999 accepting demolition on the basis of this proposal.
Appendix C of the Corpsí permitting regulations has never been recognized by the Council as a counterpart regulation that can substitute for the Councilís Section 106 regulations. This project is a prominent illustration of the issues routinely raised by the lack of congruence between Appendix C and the Councilís regulations. Beyond the procedural issues raised by this case, the proposed preservation solution is also controversial.
While a segment of the preservation community accepts the proposal that was brokered by the Cleveland Landmarks Commission, others are concerned that relocation will compromise the integrity of the Hulett Ore Unloaders as a National Register property. More important, there is skepticism about the ability to enforce the agreement, since the fate of the structures is directly tied to fund
Staff contact: Charlene Dwin Vaughn
July 1999 report on this case
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