The Difficult Part of Regulatory Review

As mentioned before, I love the regulatory world of historic preservation. I love working for the Agency of Transportation and having the opportunity to see historic preservation affect everyone and every place. It is exciting and practical and challenging.

Interpreting the legal language and implications of Section 106 and Section 4(f) can seem like a puzzle, but it gets easier and makes more sense with practice and experience. However, I have found that the most difficult part of interpreting and applying preservation law is realizing that the laws cannot help everything. What do I mean? Well, if a property is not historic or a Section 4(f) resource such as a park or a wildlife/waterfowl refuge, then the preservation laws have no control over the direction of the project. Other reviews, such as those pertaining to natural or biological resources or storm water control may still apply regulations, if the situation warrants it. Legally, that makes sense. And in terms of historic preservation, it makes sense.

But, every so often, I think about a project that doesn’t make sense, whether it’s in the media or something that I know of from experience, and I wish that there was a law to stop or fix the project. Sometimes it doesn’t seem fair that ineligible (for the National Register) houses and neighborhoods are not protected by preservation laws. After all, people live everywhere! Don’t all existing buildings deserve some sort of chance, under somebody’s law? Shouldn’t an existing, new building be exempt from demolition because of embodied energy? Where in the project review line will something like this be addressed?

This particular desire to protect everything, no matter what sort of resource, probably dates back to my Mary Washington days, when the flamingos and I first declared that we could save the world through our historic preservation efforts. It still keeps us going.

Well, everything cannot be and is not historic. Obviously, one law cannot control or have a say over every aspect of every project — that sounds a bit too power crazed; but when you spend your days looking at projects and determining what is eligible for protection and what is not, it’s hard to ignore everything else. When that happens, it is important to remember that historic preservation review is only a small part of the review process. My job is historic preservation compliance, and that is important to remember. The best way to solve this dilemma is to keep a good working relationship with colleagues in order to understand the entire scope of the project, as well as its purpose and need, and the project review process. Luckily, I’m learning this day by day: how review functions, when to question the process and when I need to better understand the process.

Readers, what do you find most difficult about your job?

2 thoughts on “The Difficult Part of Regulatory Review

  1. Andrew Deci says:

    I’m a-buzz with comments today. Pardon me!

    I understand your frustration about not regulating the non-4(f) properties and non-eligible structures and sites; but, remember the regulations are designed to assist in balancing the values of projects and natural and cultural resources. Maybe I’m a sell-out, but I think 106/4(F) does a great job of forcing projects to strongly consider the most important (at least based on the NR process–which I think is very good). Preservation will not always win out–sometimes it shouldn’t. But when a project can happen and a thorough, objective review of the impacts of the project on cultural and natural resources has been done, I think the community wins.

    For me, preservation is a VERY important value in a community’s sustainability. We already know of the economic and social impacts of preservation of structures, along with pluses of maintaining a certain level of public memory for the community. But there are other things too–transportation among them–that are necessary for our communities to be great places to live, work, play, shop, live, recreate, learn, etc, etc, & etc.

    It’s a balance. And NHPA, NEPA, 4(f) have allowed us a MUCH stronger voice in the discussion of pros and cons of work.

    A side benefit, as a local planner, is that NHPA, NEPA, and 4(f) and have become defact survey services for my community. As our locality uses federal funds for projects, and our local transportation division has projects, and contractor’s use funds for new projects, I receive more complete survey areas for the resources that I would not be able to survey on my own or with my (relatively little) financial and personnel resources. That’s a definite win for me.

    Did you get a chance to comment on the Advisory Council’s solicitation for comments regarding EO 13563? The goal of the solicitation was to figure out how ACHP was going to review their documents for compliance with “streamlining” initiatives of the Executive Office–but I also used it as a way to express the advantages and disadvantages of the federal CR processes from a local perspective. Comments are closed now, but keep aware of things that happen from it.

    • Kaitlin says:

      Andrew, thank you for such a thoughtful response. I agree with you completely in that it is a balance and preservation does not over rule (nor should it) every issue. I think, like all laws, 106 and 4f can be very effective when applied correctly, though I’ve always thought that Section 106 could be stronger. It’s interesting working in transportation since so many of the preservation laws are a result of transportation projects that disregarded historic resources (like interstate construction pre 1966). Now transportation is talking about Context Sensitive Solutions … I don’t know the specifics yet, but I’ll share when I do.

      I’ll pay attention for the EO 13563. Thanks for the heads up.

      Keep the discussions coming!

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