From Barbara Heath, president of COVA (Read from the bottom up for
continuity):

This just in from Kathleen Kilpatrick:

This is to update my previous message and to raise the code level
from Orange to Red!. The situation has gone from bad enough to even
worse still on a very critical point -- determinations of eligibility
in 106 review.

Since I sent the note below, I have spoken directly with the drafter
of the proposed amendments to the NHPA . It is chillingly clear --
the plain meaning of the proposed amendment language notwithstanding -
- that the drafter's true intent goes far beyond requiring that DOE's
be made formally by Interior. Many of us took the words at face
value. That was a mistake. Instead of what the plain meaning
indicates, the full intent is in fact to restrict any consideration
of historic resources to properties already listed or determined
eligible for listing. Clearly this would basically do away with
project survey and assessment with resulting devastating effects on
archaeology, TCP's, landscapes, rural historic districts, etc.

Please be aware of this distinction and take it into account in
anything you send out regarding this matter. Thank you for your
support for preservation and your commitment to a strong federal
preservation program.
-----------------------------------

It seems that the battle lines are drawn. Please contact as many
archaeologists and other preservationists as you can and urge them to
fax/call in opposition of these amendments.

Barbara

-----Original Message-----
Sent: Friday, April 15, 2005 7:50 AM
Subject: NHPA and Section 106

Dear COVA members,

As you most likely know by now, Congress is proposing changes to the
National Historic Preservation Act. I'm forwarding an email from
Kathleen Kilpatrick explaining what impact the new legislation, if
adopted, might have on Section 106 projects. There are many reasons
why this legislation should not move forward.

Subcommittee hearings begin on April 21st. I am asking each of you to
take the time to fax a letter, or make a phone call, to your
representative in Congress as well as subcommittee members. I will
prepare letters and fax them on behalf of COVA.

The Subcommittee on National Parks, Recreation, and Public Lands has
no members from the Virginia Delegation, although the larger
Committee on Resources has as a member Virginia Congresswoman Thelma
Drake (R, 2nd District). Her web page address: http://drake.house.gov

Because of the process of mail irradiation, you are discouraged from
sending a letter via snail mail; most members' web pages cite a 2
week to 5 month delay in receiving letters. For this reason, we have
not included mailing addresses. Similarly, e-mails are discouraged,

although some of the Subcommittee members provide that information
(most often, links through web pages). The best way to communicate
your concern is to call or fax a letter.

To make the greatest impact, please take the time to explain to
committee members what the consequences of this legislation may be.
Please also be careful not to exaggerate it's effects—the language is
NOT calling for the cessation of identification and evaluation of
resources, but is shifting responsibility for `consensus
determinations' from the state to the federal government. This
effectively robs local communities of their voice in the
determination of significant resources, creates an overwhelming
burden on the Keeper of the Register and slows down the entire
process. A second provision in the legislation will give greater veto
power to landowners who oppose eligibility. This has potentially
devastating impacts on the protection of a variety of resources,
including archaeological sites.

When writing, it would be helpful to cite examples of the Section 106
process that have preserved nationally significant sites.

Thanks to all the COVA members who have contacted me about this over
the past few days. Thanks too to everyone who takes the time to make
your voice heard. It has been a challenging spring on the
preservation front, but together we can make a difference. Please
don't think that your call or fax won't make a difference—there's
strength in numbers!

Best,
Barbara
_________________________________
Original Message from Kathleen Kilpatrick

Dear Friends of Virginia Preservation:

As many of you have probably heard, through its committee and
subcommittee structure, Congress is now considering a discussion
draft proposing several changes to the National Historic Preservation
Act that will potentially have major short and long-term effects on
the Section 106 federal review process, the National Register of
Historic Places and the Certified Local Government program. These
proposed changes are raising great alarm throughout the preservation
community nationwide. I am writing both to advise you of these
proposed changes and to encourage you to make your voice heard
immediately as Virginia advocates for and stakeholders in
preservation programs. I also want to caution that there is a great
deal of speculation and exaggeration about the immediate effects of
the proposal.

As proposed, the NHPA Section 106 would be changed to require
consideration of only historic resources "included in or determined
by the Secretary (of Interior) to be eligible for inclusion in the
National Register." As I read it, this change would have the effect
of eliminating what we call "consensus determinations" made
informally between the SHPO and the relevant federal agency.

While this change would not put an end to the identification and
evaluation of as yet undocumented historic resources, it would shift
a great deal of decision-making away from the state level and put
that authority and responsibility in Washington. In the short-term
this change would create a major logjam for the Keeper of the
Register who would likely be inundated with thousands of eligibility
determinations at any given time. This aspect has the potential to
increase costs greatly for NPS and for federal agencies and to delay
projects significantly. Currently, 106 DOEs only go to the Keeper if
the SHPO and responsible federal agency fail to reach consensus on
eligibility-something that rarely happens. Thus the proposed changes
would add a layer that is very rarely necessary. It would also
likely create a great deal of confusion and resistance to doing any
survey and review beyond what is already listed. In the long term,
the extra burden, time, and costs to all parties concerned could
potentially lead to demands for further changes to 106 that would
result in loss of thousands of historic resources-especially those
that are hidden or less obvious like archaeological sites, places
associated with Native American and African American history, local
landmarks, battlefields and associated sites.

Another proposed amendment to the Act deals with nominations to the
National Register and owner objections. It is really unclear what
the intent is here, specifically whether the drafters meant to extent
owner objection rights to DOEs. If this inelegantly drafted change
does in fact require owner consent to process DOEs, the ability to
ensure appropriate consideration of effects to archaeological sites
(which don't tend to excite property owners) as well as any kind of
resource involving multiple owners (e.g. landscapes, rural historic
districts, historic districts, TCPs, battlefields, etc.) would become
problematic and very weak. Additional changes to the sections on
Certified Local Governments require a separate "due process
protection" hearing if a determination of eligibility is used
to "trigger local regulatory requirements." While we appreciate
Congress' concerns for due process, this requirement is replicative
of Virginia state Code regarding the local zoning process and public
participation.

In short, neither the intent nor the full impacts of these changes
are clear. They are none-the-less deeply troubling. As I understand
it, the impetus for these proposals comes from cases elsewhere in the
country where local governments are using 106 consensus
determinations to inform local land use and zoning decisions. The
due process issue is certainly an important one. With provisions for
due process, however, I have a hard time understanding why it would
be judged inappropriate for a local government to use information to
inform local decisions. On the contrary! If it were inappropriate
to use cultural resource information, then it would be similarly the
case in anything from wetlands to traffic safety data that is also
gathered as a part of state and federal requirements.

In any event, the proponents of these measures appear to be seeking
to limit local actions in the name of property rights. The effects
(unintended or otherwise) have serious implications for the cultural
review process--oddly reducing efficiency and accountability,
reducing the federalism aspects of that program and, finally,
inserting Congress into local zoning and land use decision making
processes.

The National Historic Preservation Act is not broken. Federal
consideration of and accountability for the impact of public
undertakings on historic resources is good policy. So too are the
flexibility and explicit involvement of state, local, tribal, and the
general public currently embedded in the process. In short, the
proposed changes seem aimed at trying to "fix" a perceived problem at
the local level, but will potentially undermine some of the best
aspects of the federal 106 review process.

There are also indications that the cell tower industry may have
played a part in this, trying to avoid dealing with archaeological
sites and tribal issues. In any event, and regardless of the source
or sources, the proposed changes do little to protect individual
property rights and have the potential to do much damage to historic
resources, slowing down projects and costing more money for all
concerned, and reducing both federal accountability and efficiency.

Behind the scenes efforts in Washington have not succeeded in keeping
these proposals from reaching committee action. Once there, such
proposals take on a life of their own. It is critical that the
committee and the Virginia delegation hear about these potential
problems from citizens, local leaders, and the affected industries.
They need to know that Virginia cares about historic resources, that
government projects should continue to consider impacts to the full
range of historic resources, and that, as crafted, the proposed
changes may do more harm than good. They also need to hear that the
National Historic Preservation Act provides good policy and structure
to guide historic preservation nationwide and as such should be
reauthorized. Reauthorization is the reason NHPA is coming before
Congress at this time. The proposed changes and their potential
consequences are a side issue that confuses the importance of the
entire NHPA.

If you wish your voice to be heard on these issues and on behalf of
the National Historic Preservation Act and the cultural review
process, please be aware that time is critical. The discussion draft
will be the subject of a hearing on April 21st held by the National
Parks Subcommittee of the House Resources Committee. You may wish to
contact subcommittee chairman Rep. Devin Nunes and copy Rep. Richard
W. Pombo, full Resources Committee chairman by letter, email or
through their website contact point, with copies as well to the
Virginia Congressional delegation or your specific representative.
Key at this point is Virginia Representative Thelma Drake as
Virginia's only member on the Resources Committee.

Please feel free to share this information with your colleagues and
the members of your organizations in order to get the word out that
Virginia supports NHPA and a strong cultural review process.

NHPA Amendment Contacts
Rep. Devin Nunes
Subcommittee on National Parks, Chairman
Longworth House Office Building, Room 1017
Washington, DC 20515
202-225-2523 (Phone)
202-225-3404 (Fax)
www.nunes.house.gov <http://www.nunes.house.gov>

Rep. Richard W. Pombo
Committee on Resources, Chairman
Rayburn House Office Building, Room 2411
Washington, DC 20515
202-225-1947 (Phone)
202-226-0861 (Fax)
rpombo@... <mailto:rpombo@...>

Virginia Delegation Contacts
Senator John W. Warner
Russell Senate Office Building, Room 225
Washington, DC 20510
202-224-2023 (Phone)
202-224-6295 (Fax)
www.warner.senate.gov <http://www.warner.senate.gov>

Senator George F. Allen
Russell Senate Office Building, Room 204
Washington, DC 20510
202-224-4024 (Phone)
202-224-5432 (Fax)
www.allen.senate.gov <http://www.allen.senate.gov>

District 1
Rep. Jo Ann Davis
Longworth House Office Building, Room 1123
Washington, DC 20510
202-225-4261 (Phone)
202-225-4382 (Fax)
www.house.gov/joanndavis <http://www.house.gov/joanndavis>

District 2
Rep. Thelma Drake
Longworth House Office Building, Room 1208
Washington, DC 20510
202-225-4215 (Phone)
202-225-4218 (Fax)
www.drake.house.gov <http://www.drake.house.gov>

District 3
Rep. Robert C. Scott
Rayburn House Office Building, Room 1201
Washington, DC 20510
202-225-8351 (Phone)
202-225-8354 (Fax)
bobby.scott@... <mailto:bobby.scott@...>

District 4
Rep. J. Randy Forbes
Cannon House Office Building, Room 307
Washington, DC 20510
202-225-6365 (Phone)
202-226-1170 (Fax)
www.house.gov/forbes <http://www.house.gov/forbes>

District 5
Rep. Virgil H. Goode, Jr.
Longworth House Office Building, Room 1520
Washington, DC 20510
202-225-4711 (Phone)
202-225-5681 (Fax)
www.house.gov/goode <http://www.house.gov/goode>

District 6
Rep. Bob Goodlatte
Rayburn House Office Building, Room 2240
Washington, DC 20510
202-225-5431 (Phone)
202-225-9681 (Fax)
www.house.gov/goodlatte <http://www.house.gov/goodlatte>

District 7
Rep. Eric Cantor
Cannon House Office Building, Room 329
Washington, DC 20510
202-225-2815 (Phone)
202-225-0011 (Fax)
www.house.gov/cantor <http://www.house.gov/cantor>

District 8
Rep. James P. Moran
Rayburn House Office Building, Room 2239
Washington, DC 20510
202-225-4376 (Phone)
202-225-0017 (Fax)
www.moran.house.gov <http://www.moran.house.gov>

District 9
Rep. Frederick C. Boucher
Rayburn House Office Building, Room 2187
Washington, DC 20510
202-225-3861 (Phone)
202-225-0442 (Fax)
Ninthnet@... <mailto:Ninthnet@...>

District 10
Rep. Frank Wolf
Cannon House Office Building, Room 241
Washington, DC 20510
202-225-5136 (Phone)
202-225-0437 (Fax)
www.house.gov/wolf <http://www.house.gov/wolf>

District 11
Rep. Thomas Davis III
Rayburn House Office Building, Room 2348
Washington, DC 20510
202-225-1492 (Phone)
202-225-3071 (Fax)
tom.davis@... <mailto:tom.davis@...>