skip general nav links ACHP home About ACHP


National Historic

Working with
Section 106

Federal, State, & Tribal Programs

Training & Education


 skip specific nav links
Home arrow Publications arrow Intro: Report Requested by the Committees on Appropriations arrowfull text
Report Requested by the Committees on Appropriations

Submitted by the Advisory Council on Historic Preservation, March 1996

Table of Contents

Executive Summary
Overview: National Historic Preservation Policy
Part One: "Is there duplication of activities?"
Part Two: "Should the Council be reimbursed for its assistance and advice by other Federal agencies?"
Conclusions and Recommendations

Executive Summary

In the Conference Report accompanying the Fiscal Year 1996 appropriations bill for the Department of the Interior and Related Agencies, the House and Senate Committees on Appropriations asked the Council to examine two areas of concern: 1) that there may be duplication of activities as performed by the council and other preservation agencies; and 2) that the Council should seek reimbursement from other agencies for its expert advise and assistance.

Report findings

On the first of these concerns, that there may be duplication of activities as performed by the Council and other preservation agencies, the Council concludes that there is little to no de facto duplication in core activities.

Apparent overlap between different agencies and their programs is a consequence of agencies' related roles and placement in government. Where the potential for duplication occasionally arises in secondary or peripheral activities, such as the development of guidelines, training, or publications, the various preservation agencies work in close cooperation and partnership to share effort and work products and to realize efficiencies based on their individual strengths and different program focus.

Completion and adoption of new regulations governing the Section 106 review process, currently underway, will further clarify the varying roles and responsibilities of the Council and other key players in the historic preservation review process. With regard to the second of these concerns, that the Council should seek reimbursement from other agencies for its expert advice and assistance, the Council concludes that while some reimbursable or cost-sharing arrangements are both possible and appropriate, as evidenced by past and present successes, there are currently substantial obstacles and constraints in both the desirability of the Council seeking such reimbursement on a widespread basis and its practical ability to do so.

As an independent agency with regulatory and program oversight responsibilities, the Council believes that any fee system or regular agency retainer for providing advice and assistance would be ill-advised and raise questions of conflict of interest.

The fact that the Council's budget is reviewed and appropriated through the budget submission for the Department of the Interior and Related Agencies for historical reasons and legislative convenience should have no bearing on evaluations of its budget requests. To the contrary, the Council's request and justification for appropriated funds should be judged in relation to its particular statutory mission, the merits of its activities, and other program priorities.


Origins of this report

In the Conference Report accompanying the 1996 appropriations bill for the Department of the Interior and related agencies, the House and Senate Committees on Appropriations cited two concerns: 1) that some activities conducted by the Council may duplicate those conducted by other preservation agencies and 2) that other Federal agencies and departments, which benefit from the expert advice of the Council, should assist in covering the Council's costs through reimbursable agreements. The Committees directed the Council to study these two issues and report on its findings.{1}

These concerns are valid ones and of critical importance to the Council. Particularly in an era of reduced financial resources at all levels of government, the Council shares the Committees' interest in making sure the national historic preservation program realizes the most "bang for the buck" possible. The success of our Nation's historic preservation efforts, the varied dimensions of the programs and underlying policies they advance, and the Council's particular mission rely on cooperation and partnership. However, any successful partnership must submit to regular adjustment and examination of ways to improve its operational and organizational efficiency. Likewise, collaboration with Federal agencies through cost-sharing arrangements and reimbursable agreements can potentially provide the Council, its partners, and its customers with new opportunities for achieving mutual historic preservation goals, notwithstanding the challenges of more limited financial resources.

"Partnership" is a basic, underlying premise of the Council's work in particular and historic preservation in general. Examination of the administrative framework for carrying out Federal historic preservation policy articulated in the National Historic Preservation Act of 1966 (NHPA) quickly demonstrates the potential benefits of an active and vital public-private, intergovernmental collaboration to address these important issues effectively and efficiently. The Council is pleased to examine both of these issues and convey its findings in this report.

Organization of the report

The report begins with an overview of national policy as articulated in the NHPA and outlines the responsibilities of major participants in the national historic preservation program. It then frames the Committees' request in the form of two questions:

"Is there duplication of activities?" and

"Should the Council seek reimbursement from other Federal agencies for its assistance and advice?"

Part One of this report addresses the first question by looking at roles and responsibilities of the Council and others in four key areas: 1) Federal project planning and review; 2) and policy coordination; 3) training and dissemination of public information; and 4) development of technical standards and guidelines. Part Two assesses the viability and potential for the Council to be reimbursed for its assistance and advice by discussing the nature of the Council's appropriation and the suitability of reimbursable arrangements. It outlines the Council's past experience with reimbursements, analyzes the benefits, drawbacks, and constraints of such arrangements, and concludes with some findings and recommendations that should assist in exploring the future of reimbursable funding at the Council.

Overview: National Historic Preservation Policy

Within the past generation, historic preservation has evolved from a limited and somewhat insular, pursuit into a broadbased popular movement with wide support. The reasons for this support are varied. Some desire a tangible sense of permanence and community, while others wish to know about and embrace America's heritage in a direct and personally meaningful way. Recognition that historic preservation often is associated with economic successes is an important reason, as is the fact that many see the preservation of historic districts, sites, buildings, structures, and objects as enhancing their quality of life, adding variety and texture to the cultural landscape in which they live and work. Largely because of such highly personal responses, public support for historic preservation has flowed from the bottom up, making it in the truest sense a grassroots movement, not just another government program.

This was recognized in the NHPA, which found that

[T]he historical and cultural foundations of the Nation should be preserved as a living part of our community life and development in order to give a sense of orientation to the American people.... [T]he preservation of this irreplaceable heritage is in the public interest so that its vital legacy of cultural, educational, esthetic, inspirational, economic, and energy benefits will be maintained and enriched for future generations of Americans.

With passage of NHPA, Congress made the Federal Government a full partner and a leader in historic preservation. While the Congress recognized that national goals for historic preservation could best be achieved by supporting the drive, enthusiasm, and wishes of local citizens and communities, it understood that the Federal government must set an example through enlightened policies and practices. In the words of the Act, the Federal Government's role would be to provide leadership for preservation, contribute to and give maximum encouragement to preservation, and foster conditions under which our modern society and our prehistoric and historic resources can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations. Indeed, an underlying motivation in passage of the Act was to transform the Federal Government from an agent of indifference, frequently responsible for needless loss of historic resources, to a facilitator, an agent of thoughtful change, and a responsible steward for future generations.

To achieve this transformation NHPA and related legislation sought a partnership among the Federal Government and the States that would capitalize on the strengths of each.

  • The Federal Government, led by the Department of the Interior as the branch with the longest and most direct experience in studying, managing, and using historic resources, would provide funding assistance, basic technical knowledge and tools, and a broad national perspective on America's heritage.

  • The States, through State Historic Preservation Officers (SHPOs) appointed by the Governor of each State, would provide matching funds, a designated State office, and a statewide preservation program tailored to state and local needs and designed to support and promote state and local historic preservation interests and priorities.

  • The National Trust for Historic Preservation, a nationwide nonprofit organization chartered by Congress in 1949, would help stimulate and focus public interest and involvement in the national program and encourage the recognition of historic preservation's importance in communities throughout the Nation.

The drafters of the NHPA, however, also appreciated that transforming the role of the Federal Government would require more. A new ethic was needed throughout all levels and agencies of the Federal Government; two tenets of the Act were critical to this transformation.

An Advisory Council on Historic Preservation, the first and only Federal entity created solely to address historic preservation issues, was established as a cabinet-level body of Presidentially appointed citizens, experts in the field, and Federal, State, and local government representatives, to ensure that private citizens, local communities, and other concerned parties would have a forum for influencing Federal policy, programs, and decisions as they impacted historic properties and their attendant values.

Section 106 of NHPA granted legal status to historic preservation in Federal planning, decisionmaking, and project execution. Section 106 requires all Federal agencies to take into account the effects of their actions on historic properties, and provide the Council with a reasonable opportunity to comment on those actions and the manner in which Federal agencies are taking historic properties into account in their decisions.

Passage of NHPA in 1966 was a watershed event. It marked a fundamental shift in how Americans—and the Federal Government—regard the role of historic preservation in modern life. Before 1966, historic preservation was mainly understood in one-dimensional terms: the proverbial historic shrine or Indian burial mound secured by lock and key—usually in a national park—set aside from modern life as an icon for study and appreciation. NHPA largely changed that approach, signaling a much broader sweep that has led to the breadth and scope of the vastly more complex historic preservation mosaic we know today. Like the American culture it mirrors, historic preservation today is perhaps best defined by in terms of its diversity.

As diverse as American culture is, so too is the diversity of historic properties that express this rich cultural legacy. Consider the intricacy and the complexity of the modern mosaic. Our definition of historic properties has evolved to encompass a much broader interpretation of American history, one that acknowledges significance at the local level. Further, historic properties are now understood and appreciated as part of—not isolated from—the landscape to which they belong. It is only logical that this more complex view of what historic properties are, and how Americans relate to them has engendered equally complex challenges concerning their preservation and treatment. These needs have engaged the professional interests of architects, economists, historians, developers, archeologists, planners, engineers, architectural historians, ethnographers, and many others.

Passage of NHPA found most Federal Government agencies at a loss to respond to the challenges of historic preservation, much less prepared to cope with the growing public interest it generated. (Some agencies still are.) Clearly Federal institutions needed help in meeting the broad historic preservation goals set for the Federal Government by Congress in the Act.

Over the past 30 years, a number of additional executive and legislative actions have been directed toward improving the ways in which all Federal agencies manage historic properties and consider historic and cultural values in their planning and assistance. Executive Order 11593 (1971) and, later, Section 110 of NHPA (1980, amended 1992), provided the broadest of these mandates, giving Federal agencies clear direction to identify and consider historic properties in Federal and federally assisted actions. The National Historic Preservation Amendments of 1992 further clarified Section 110 of NHPA and directed Federal agencies to establish preservation programs commensurate with their missions and the effects of their authorized programs on historic properties.

Thus in 1996, agencies other than the National Park Service (NPS) that have major stewardship responsibilities for public lands and resources, or have the most frequent, significant effects on historic properties through Federal assistance and regulatory programs, have substantial historic preservation responsibilities. These agencies attempt to deal with these mandates in an era of diminishing financial resources and with highly variable internal policies, staffing, funding, and program focus. In theory, each agency has one or more Federal Preservation Officer, responsible for coordinating the specific agency's activities under NHPA. However, none of these agencies has historic preservation as a central facet of its mission, and none has a leadership or coordinative role beyond its own resource management and land-use planning responsibilities. For 30 years, the national historic preservation program has continued to rely upon the partnership between the Council, NPS, and the SHPOs, and has expanded to embrace Certified Local Governments (CLGs) and Indian tribes. As with any successful partnership, collaboration and division of labor have remained essential ingredients. Over the years through its various changes to NHPA, Congress has reaffirmed this partnership. The role of each partner has evolved to reflect the growing sophistication of the program, but emphasis has remained on different, yet mutually supportive, responsibilities.

Part One: "Is There Duplication of Activities?"

Section 106 as a planning standard. The responsibility for administering Section 106 of NHPA sets the Council apart from all other Federal Government agencies. The majority of the Council's staff and financial resources is engaged, in some form or another, in making Section 106 work effectively and efficiently, to reach public interest solutions when historic properties and values are involved in Federal planning.

Section 106 is simple and straightforward. It applies broadly to all manner of activities having the potential to affect historic properties, including those on property under Federal ownership or control, those actions benefitting from some form of Federal assistance, and those permitted, licensed, or approved by a Federal agency. It requires Federal agencies, prior to making a final decision on an undertaking that commits Federal funds or otherwise grants approval, to take into account the effects of their action, if any, on historic properties and provide the Council a reasonable opportunity to comment with regard to such undertaking.

In order to ensure that Federal agencies meet the congressional intent, agencies of the Executive Branch are required to follow implementing regulations promulgated by the Council, "Protection of Historic Properties" (36 CFR Part 800). The basic steps set forth in the regulations follow a logical, sequential process. An agency determines first if historic properties are present and, if so, how they are affected by the proposed Federal action. If effects are adverse, consultation with various parties is initiated to seek ways to avoid or reduce project effects. The process is brought to closure when the Council accepts an agency's findings or, alternatively, reaches a solution through consultation that embodies consensus and compromises reached by all parties. (In rare cases, agreement is not achieved, and the process is brought to closure by formal Council comments being provided to the head of the agency.)

Underlying principles that guide the Council's administration of the Section 106 process have a critical bearing on operational issues of importance to the Committees. These principles, discussed below, help explain the broader purposes of Section 106 and the Council's goals for its management. With more specific regard to the Committees' concern that Council activities might duplicate those of others, these principles are instructive in explaining the Council's unique role in the daily operation of the system and its relationship to other participants, especially NPS and the State Historic Preservation Officers, but also other Federal agencies.

The Council focuses its efforts on administration and management of the system, judging the adequacy of Federal planning, ensuring adequacy of public involvement, and conflict resolution when properties are in jeopardy.

By contrast, NPS, with its traditional expertise in park and historic resource management, serves an important assistance role through administration of the National Register of Historic Places, evaluation of historic property significance and development of appropriate treatment standards.

Federal agencies (within the context of their land-use planning, resource management, and project decisionmaking authority) are responsible for identification of historic properties, assessment of effects on them, development of possible treatments, and use of historic properties for mission purposes.

SHPOs provide advice and technical assistance to the Federal agencies based on State priorities and knowledge of the State's own historic resources.

NHPA also provides substantial roles for local and Tribal governments as consultative partners in the planning and execution of Federal actions affecting their areas of jurisdiction and interest.

All of this occurs within the framework of the Section 106 process, as designed and implemented by the Council. While collaboration and cooperation is essential between the Council and the other parties, clear delineation of legal responsibilities, roles, and functions ensures greater efficiency, avoids duplication of services, and guarantees an independent review authority to judge the appropriateness of planning outcomes. This last point is especially critical when major construction and other projects in national parks need to be examined, as was demonstrated at the time the Council was made an independent agency,

Under the Section 106 regulations, the Council plays no role in determining whether or why properties are eligible for the National Register and, thus, worthy of consideration under Section 106. These determinations are made through application of NPS standards by the Federal agency in consultation with the SHPO, with the park service having final authority to determine whether or not a property meets Register criteria. Likewise, NPS plays no role in assessing project impacts and attempting to deal with them.{2} The Council makes use of NPS technical standards and guidelines in its consultation with Federal agencies and other parties, and often recommends solutions for treatment of historic properties that have been developed over many years by NPS (see below).

One of the most prominent, and successful, features of the Section 106 process is the role assumed by the SHPO. From a practical standpoint alone, the SHPO's presence in assisting and consulting with the responsible Federal agencies has enabled the system to operate effectively for nearly three decades, since the volume of Federal actions subject to review under Section 106 could never be handled independently by the Council's small staff. More importantly, this essential component of the process helps ensure that Federal decisionmaking fully considers State and local views and opinions. The SHPO's opinions and assistance serve as an important threshhold, enabling the vast majority of Federal actions to be assessed with dispatch and ensuring quick closure of Section 106 review. Operationally, the Council has come to increasingly rely on the SHPO in its streamling of the process, an approach advanced even further in changes the Council has proposed or will be proposing to its regulations.

The trend toward greater reliance on solutions reached by Federal agencies and the SHPO has greatly streamlined the Section 106 process. Likewise, it has served to heighten the Council's unique and perhaps most important role of mediator. The Council is charged with seeking to achieve through the Section 106 process not, as is sometimes misunderstood, a strict historic preservation solution, but rather a broader public interest solution—the public benefits of the proposed undertaking must be carefully weighed against loss of historic resources. The Council must ensure that through Section 106 a reasonable and cost-effective balance is achieved and that solutions reached represent the broader public interest and not merely a more narrowly defined preservation objective.

The Council is uniquely suited for this role. As an independent Federal agency with a peer relationship with other Federal agencies, and as a public entity which has credibility in the broader preservation community, the Council can frequently encourage true public interest solutions. This can often mean joining with the Federal agency to persuade or other preservation advocates to accept a more moderate compromise solution, or insisting that greater consideration be given to public views and desires by the other parties.

Program and Policy Coordination

To promote the purposes of NHPA, the Council has a number of basic coordination responsibilities. Articulated in Section 202 of the Act, these include:

  • Review of agency policies and programs as they relate to historic preservation to improve their effectiveness and consistency with the purposes of NHPA;

  • Advice to the President and Congress on legislation and other historic preservation policy matters from an impartial and intergovernmental perspective;

  • Recommendations to better coordinate public and private historic preservation; and

  • Historic preservation policy studies.

By contrast, the Secretary of the Interior, operating through NPS, was granted an important but different role from the Council in the leadership and coordination of the national historic preservation program.{3} A statutory member of the Council, the Secretary of the Interior participates in the Council's policy and program coordination along with the 19 other members. In addition, through NPS, more specific departmental responsibilities include:

  • Administration of the Historic Preservation Fund and grant assistance;

  • Establishment of standards for state and tribal preservation programs;

  • Development and dissemination of technical standards for identification, evaluation, recordation, and treatment of historic properties; and

  • Establishment of criteria and procedures for historic property evaluation.

The Council recommends administrative and legislative improvements for protecting the Nation's heritage with due recognition of other national needs and priorities. It also advances Federal historic preservation planning by ensuring that Federal agency operating procedures adequately consider historic preservation laws and policies. The Council's approach to dealing with the issue of affordable housing, and its working relationship with the SHPOs and NPS on such matters, is a good illustration of how Council coordination and oversight of the Section 106 review process operates in practice.

Training and Public Information

Knowledge of Federal preservation laws, policies, and procedures is essential for both Federal agencies and those State, local, and tribal officials, applicants, and concerned citizens who wish to participate in the processes created by NHPA. Broad understanding enables officials to anticipate historic preservation considerations and incorporate them into agency planning, avoids confrontation and delay, facilitates decisions that support preservation, and allows the public to communicate effectively to Federal officials its wishes for the future of its heritage.

Understanding preservation concepts and responsibilities embraces both Section 106 and the program elements administered by the NPS. Thus it is appropriate that both the Council and NPS educate Federal agencies and other participants in laws, legal process, and technical issues for effectively carrying out the program.

The Council conducts a variety of outreach activities to advance this objective. It develops, maintains, and disseminates:

  • Training in the Section 106 process and related issues;

  • Information about Council work and Federal historic preservation policies and activities;

  • Publications that explain and interpret the law, regulations, and Federal responsibilities; and

  • Technical assistance referrals to other agencies and organizations.

By contrast, the National Park Service focuses on:

  • Technical and hands-on resource preservation or preservation crafts training;

  • Training in archaeological resource law enforcement;

  • Information about NPS programs and State activities; and

  • Technical and NPS program-related publications.

The Council cooperates to minimize duplication, and maximize resources. A good example of how this works in practice can be seen through a more detailed examination of the Council's involvement with interagency training.

Like many Federal agencies, the Council is beginning to enter the electronic age and take advantage of the Internet and other electronic media to develop and disseminate information and enhance communications with its partners and customers. Closer cooperation should be enhanced as these resources become more fully developed and utilized.

Development and Use of Technical Standards and Guidelines

The Council rarely develops technical standards or guidelines and then only in close collaboration and cooperation with NPS and other parties in order to address a specific need identified through its administration of Section 106, to assist another Federal agency, or to respond to a specific congressional request.{4} With the exception of its annual report to the President and Congress, most of the Council's printed materials are interpretive or explanatory publications connected with Section 106. In its work, the Council relies heavily on the professional standards and guidance developed by NPS, as do all Federal agencies planning or executing projects. For example, a centerpiece of many agreements reached under Section 106 may call for treatment of a property "in accordance with the recommended approaches in the Secretary of the Interior's Standards and Guidelines for Treatment of Historic Properties." Again, efficiency is achieved in the Section 106 process in particular, and by the Council in general, by not attempting to duplicate or change proven guidance already issued by NPS.

This is not to say that there is no consultation or cooperation on the development and issuance of necessary standards and guidelines. In 1988 and 1989, for example, guidance was needed on both identification of historic properties (especially for the purposes of Section 106 review), and the implementation of Federal agency historic preservation programs under Section 110 of NHPA. The Council and NPS cooperated in drafting and issuing joint guidance for these two program areas. More recently, the Council has provided NPS with drafting assistance for revising the Section 110 guidelines.

Conclusions and Recommendations

In our opinion, there is no real duplication in the four key areas examined above for which the Congress is appropriating funds and that collectively encompass Council activities. The National Historic Preservation Act is clear about the division of responsibilities, including those areas where the Secretary of the Interior is to develop guidance or address issues "in consultation with" the Council.{5} Each of the preservation agencies and organizations draws upon the others' strengths and specialized expertise and routinely cooperates with its preservation partners as appropriate. No legislative, policy, or operational program changes are necessary from the status quo, in terms of basic agency functions and responsibilities.

The Council will continue to encourage NPS, the SHPOs, and other Federal agencies to seek Council consultation, advice, and cooperation in such areas as training for Section 106 and related laws and procedures. Publications and other public information disseminated by the Council will continue to relate principally to the Section 106 process, historic preservation law, Federal planning and resource management, or the Council's other authorized activites. Public inquiries or requests for advice will be answered with other agency's publications or referrals as appropriate.

Part Two: "Should the Council be reimbursed for its assistance and advice by other Federal agencies?"

In addition to concerns about potential duplication of activities, the Committees want the Council to seek funds from other sources than direct appropriation through the Department of the Interior and related agencies funding bill. The Conference Report and recommended funding level raise several issues. What is the nature of the Council's appropriation? Where, and how, would reimbursements be suitable? What is the Council's past and current experience with reimbursements? What does this experience tell us about the benefits, drawbacks, and constraints associated with reimbursable funding arrangements? What could be done to make reimbursable options more viable and achievable?

The Nature of the Council's Appropriation

Prior to any discussion of reimbursement for Council services, it is essential to examine the Council's fundamental appropriation. Throughout its history, the Congress has acknowledged that the Council is a unique and critical element of the National Historic Preservation Program, warranting direct support through an adequate annual appropriation, just the same as any other valued government activity. The rationale for this is sound: fiscal stability and independence from reliance on funding from other Federal agencies is critical to the ability of the Council to provide timely and objective assistance to the President, the Congress and Federal agencies.

As the Council's activities are integral to the historic preservation program, its budget has traditionally been associated with the Interior appropriation as that of a "related agency." However, the Council sets its own budget requirements, independently submits both its estimates and its justifications to the Administration and the Congress and defends its requests throughout the entire budgetary process in the executive and legislative branches. Hence the Council's funding is strictly separate from the budget of the Department of the Interior or any other agency.

In recent years as budget constraints have tightened, a perception has emerged that funding for the Council essentially comes "out of" the Department's appropriation, overlookng the independent nature and function of the Council. This seems to stem from viewing the allocation made by the Appropriations Committee to the subcommittee with jurisdiction over the Department of the Interior and its "related agencies," including the Council, as being the Department's allocation. While there is a certain political reality to this view, it subverts the original purpose of affiliating the Council's budget with Interior, due to its program similarity, and gives rise to an argument that any monies appropriated to the Council diminishes the appropriation for the Department's activities.

This in turn has raised concern as to the amount of services that the Council provides Interior agencies as opposed to the rest of the Federal establishment. The argument goes that since only a small percentage of the Council's Section 106 caseload is submitted by Interior agencies, the Interior budget should not bear the cost of funding the Council. This is flawed, as it is based on the assumption that the Council's budget is taken from Interior funds. If this viewpoint is accepted, then the whole concept of grouping small independent agencies whose programs are "related" to major departments collapses.

In sum, a fair examination of reimbursements for Council services must be based on recognition at the outset that the Council, just as any other independent Federal agency, is entitled to requesting and justifying appropriated funds necessary to carry out its statutory mission. It is the role of the Administration and the Congress to determine what that level should be, but the decision must be based on the merits of the activities and their relation to other priorities. They cannot be tied to the erroneous notion that the Council must justify its funding on the services it provides to the Department of Interior.

Where are Reimbursements Suitable? The unique independent nature of the Council, consciously created by the Congress and refined by statutory amendment over 30 years, has significant implications for determining when reimbursements are appropriate. The Council cannot continue its role of providing timely and independent assistance and services if it must seek outside funding to do its work. When examining the necessary level of appropriation and the role of reimbursables, several factors are critical.

Given the role the Council plays in the Section 106 process, a stable and adequate funding base is essential for the smooth functioning of Federal agency decisionmaking regarding historic properties. The Council could not maintain the necessary staff resources, along with essential support and travel, if it were compelled to charge agencies for providing Section 106 comments. Expansion and contraction based on periodic fluctuations in user needs would produce planning uncertainty and program chaos.

Likewise, the role of the Council is to provide its independent views and assessments to Federal agencies. The heart of this occurs in the Section 106 process where the Council, bringing its public interest perspective to the table, resolves conflicts between project proponents and preservation interests. Carrying out this duty on a "for hire" basis could seriously undermine the independence of the Council. Agencies may well be disinclined to "buy" input from the Council that honestly points out shortcomings in their efforts to consider historic preservation values and scrutinizes their compliance with Federal laws. Even if this did not diminish the funding, it would raise serious questions as to the impartiality of the Council when advancing solutions.

These concerns do not mean that reimbursements for Council services are always problematic. Rather, they demonstrate that there are important "core" areas of the Council's activities that must continue to be adequately funded by appropriation if the Council is to meet its statutory duties. Likewise, they provide some indication of areas where reimbursable arrangements would be compatible with the nature and authority of the Council.

One way of drawing the line is to distinguish between mandatory Council functions and discretionary ones. Essentially all activities undertaken by the Council to participate in and oversee the Section 106 process fall within the first category. If the Council does not do them, Federal agencies will not be able to meet their legal obligations and the Section 106 process will not be effectively implemented. The kinds of Council actions embraced in this category would include the review and comment upon individual Section 106 cases, implementation of Section 106 regulations, guidance and interpretations and general management of the Section 106 process by providing technical assistance and information, fixing procedural problems and aiding participants.

Where the Council is asked to provide specialized assistance to an agency, by developing special procedures to tailor the process to their needs or offering special training designed to meet unique agency requirements, this moves beyond the Council's mandatory duties and would be appropriate for reimbursement. As will be noted, the Council has often provided such services in the past, but only occasionally sought reimbursement for them.

Another way of looking at what would be suitable for reimbursement is to distinguish between those services that the Council provides to the government at large from those that are offered to benefit an individual agency or program. The former, such general information and guidance on the Section 106 process, basic Section 106 training and other products directed at a broad user group, should be funded out of the Council's core appropriation, with only occasional cost-sharing sought. Products that must be tailored to a specific agency or user group should be viewed as likely candidate for reimbursement.

What is suitable for reimbursement is, of course, only the threshold consideration is assessing the viability of reimbursables as a source of Council funding. When that fundamental question is answered, the more difficult challenges of determining what agencies will actually want to purchase and finding reliable and continuing sources of funding must be confronted.

Council Experience with Reimbursements

The Council is not a stranger to reimbursable arrangements. These have fallen readily into several categories, most often pursued with other Federal agencies through interagency fund transfers, and documented either through cooperative agreement, letter, or contract. These categories include:

  • Historic preservation program improvement through special projects with other agencies

  • Enhanced public outreach through awards and publications

  • Training and educational activities of both a general and more specialized nature

  • Travel assistance for interagency consultation to facilitate Section 106 review or assist in improving agency program capabilities.
The sources, consistency, regularity, and amounts of reimbursement to date have been highly variable. In most cases save for the ongoing training program, reimbursable arrangements have been of short- duration, and are project- or product-specific. They have been handled largely by in-house personnel, with limited use of outside contractors or consultant services (except for the use of certain contract instructors for some training courses and for development of specialized educational materials).

Benefits, Drawbacks, and Constraints

There are several generalizations that can be drawn from the Council's experience to date with reimbursements. First, most reimbursements have not been predictable; most of these "special projects" have required a convergence of circumstances, including willing partners and availability of funds, and preparation of "project proposals." Such projects have absorbed staff time and other Council resources for production of very specific products at the expense of other Council activities, and so far such projects have been limited to Defense and the Resolution Trust Corporation. Second, the more predictable but lower level reimbursement amounts to date all relate to training, and are linked to two cooperative agreements that took a considerable amount of time to explore, develop, and put into place.

Fourth, the only outside funding related to the Council's core activities under Section 106 has been from travel assistance, and these are relatively small amounts that have been dependent on agency exigencies and to date have varied substantially from year to year. Thus, when meeting the requirements of major reimbursable projects, the Council has occasionally been hard-pressed to meet the demands on staff time and other resources while fulfilling other key portions of its statutory mission. Professional staff with the available expertise for a given project must be taken away from their Section 106 duties and reassigned to meet special project needs.

Conclusions and Recommendations

In summary, the Council's experience has shown that cultivation and use of reimbursements as a regular, predictable source of funding is problematic:

  • Reimbursements are highly unpredictable and inconsistent

  • Reimbursements take considerable effort and development time to put into place

  • If not carefully developed and managed, reimbursable arrangements can seriously skew Council work priorities and staffing.

The Council need to be very realistic about the extent to which reimbursement arrangements with other Federal agencies can adequately meet Council funding needs. The predictability, consistency, and reliability of outside funding needs to be improved.

Council downsizing in response to recent appropriations levels has required a reduction in available staff, including both administrative and support personnel and professionals, the latter of whom provide the pool of expertise required to successfully convince agencies to turn to the Council for assistance with their program improvement needs. When reimbursable agreements are successfully put into place, extensive time and energy is necessary to restructure the organization and redistribute other, statutory work. The Council staff is probably not large or diverse enough to support a separate office devoted exclusively to "development" and outside work, although the Council staff is currently exploring some organizational options to facilitate this process.

Government-wide downsizing and tightened finances have also, of course, led other agencies to be very conservative in long-range planning and budgetary expenditures, in resource management, and in dealing with any responsibilities that they believe are not central to their mission. These agencies are hesitant, if not completely hostile, to the notion of reimbursing the Council for assistance in improving their programs, particularly when they are not able to keep experience staff themselves.

The Council is unable to carry over funds from one fiscal year to the next. All funds received in a fiscal year must be expended or returned to the Treasury, unless they originate with agencies with some measure of "no year" authority (for example, the now-defunct Resolution Trust Corporation, with which the Council had an agreement that recently expired). Thus, other agencies may find they have funds available to enter into a reimbursable arrangement with the Council late in the fiscal year, as has occasionally been the case, but the Council is unable to accept and obligate the funds in time to provide the desired services. (Most such interagency agreements are the result of substantial work and discussion, and may take as much as a year or more to put into place.) The Council is also unable to accept transfers of funds from non-Federal parties except through its Donations account. This inhibits any cooperative ventures that might be pursued with, for example, non-Federal members of the Council. A solution needs to be found to both the carryover problems, and the restrictions on accepting funds from non-Federal Council members.

Assuming that some of these practical problems could be addressed, much of what the Council now does under the broad heading of "Federal agency program improvement" could theoretically qualify for "reimbursement" through cost-sharing, payment to cover direct costs, interagency personnel details (Intergovernmental Personnel Act), defrayment of travel costs, and similar arrangements. This might include a range of technical assistance, training, and the development of alternative systems to address combined Section 106 and Section 110 responsibilities, embodied in programmatic agreements of national, regional, or statewide scope. Excluded would be individual case reviews and related consultation assistance provided, those process-driven agreements that deal with specific complex or lengthy projects, or other Council actions that comprise the Council's "comment" on a given situation to meet Section 106 requirements. The excluded work on both the Council's part and that of the agency is a direct result of our mutual statutory and regulatory responsibilities. A clear distinction must be maintained between fulfillment of our legal obligations, and what might be potential reimbursement opportunities.

At least initially, the Council has identified two areas for further exploration. The first is training, with a proven Council track record, product, and customers. The second area for the Council to explore is broader program improvement activities. One way to advance this is to tie the activities considered as candidates for reimbursements to Section (202)(a)(6) of the NHPA. Section 202(a)(6) directs the Council to

review the policies and programs of Federal agencies and recommend to such agencies methods to improve the effectiveness, coordination, and consistency of those policies and programs with the policies and programs carried out under this Act.

For example, this was the basis for the Council's work for the Department of Defense under the Legacy Resource Management Program. A key question, of course, is whether any agencies would be willing and able to reimburse the Council for this sort of advisory-consultant work. If so, what would be in the best interest of the public and the Council?

In assessing future reimbursement opportunities, relevant factors would include the effort (and financial investment) needed to successfully market the Council's expertise and put agreements into place, the kinds of products or services agencies would be willing to pay for, the extent to which the Council should pursue reimbursable projects at the expense of other program activities, and how a reimbursable program could be most efficient and effective in helping the Council to meet its mission and the broad purposes of the National Historic Preservation Act.


In summary, the Council believes that there is little to no duplication between the Council and other preservation agencies in core activities. Rather, complementary roles and responsibilities provide an excellent example and model of public-private partnership and Federalism in government. It is possible and appropriate for the Council to seek reimbursement from other Federal agencies for some of its advice and assistance, particularly in such areas as training and agency program improvement. However, pursuit and use of reimbursements as a predictable, consistent source of funding that could be used to meet a substantial percentage of the Council's operational budgetary needs is problematic for many reasons. The Council intends to explore this issue further, and may call upon the Congress to help make reimbursements a more practical option in the future.


{1}Language of Amendment No. 143 of H.R. 1977 as follows: "While the Advisory Council works closely with Federal agencies and departments, the National Park Service and State historic preservation officers, it does not have responsibility for designating historic properties, providing financial assistance, overriding other Federal agencies, decisions, or controlling actions taken by property owners.... The Managers encourage those Federal agencies and departments which benefit from the Advisory Council's expert advice to assist in covering these costs. The managers are convernd that some Advisory Council activities may duplicate those conducted by other preservation agencies. Therefore, the managers direct the Advisory Council to evaluate ways to recover the costs of assisting Federal agencies and departments through reimbursable agreements and to examine its program activities to identify ways to eliminate any duplication with other agencies. The Advisory Council shall report its findings to the Congress by March 31, 1996."

{2}Although in the case of National Historic Landmarks or National Park units being affected by another agency's actions, NPS views may be sought informally by the Council along with those of other interested parties.

{3}Recent reorganization of the National Park Service has resulted in the installation of an Assistant Director for Cultural Resources Stewardship and Partnership Programs. The Assistant Director now not only oversees NPS responsibilities for managing historic properties within the National Park System, but also is in charge of such broader coordinative functions as the Historic Preservation Fund administration, the National Register of Historic Places, the Tax Act certification program, and various advisory and oversight responsibilities for archaeological resource protection. This reorganization should enhance policy and program communication between NPS and the Council and further help to minimize any potential duplication of effort in these areas between the Council and NPS, since the Assistant Director in turn advises the Secretary of the Interior's designee to the Council.

{4}For example, the Council prepared a report entitled Balancing Historic Preservation Needs with the Operation of Highly Technical or Scientific Facilities (1991), as requested by the House Committee on Interior and Insular Affairs, Subcommittee on National Parks and Public Lands, and the House Committee on Science, Space, and Technology.

{5}See National Historic Preservation Act, Sections 101(a)(8), 101(b)(2), 101(d)(2)(D), 101(g), 101(j)(1), 112(a)(1)(A), 112(b), 113(b), 304(c), 401(a), and 4021.

Updated 1996

Return to Top