Advisory Council on Historic Preservation (ACHP) and Justice Dept...
Advisory Council on Historic Preservation (ACHP) and Justice Dept. are “studying the possibility” of appealing recent U.S. Dist. Court, D.C., decision that upheld -- with 2 exceptions -- ACHP siting regulations under Sec. 106 of National Historic Preservation Act…
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(CD Sept 26 p10). Final rule challenged by CTIA and National Mining Assn. had implemented Sec. 106. Rule set regulations for wireless towers and other facilities on siting and environmental impact on historic properties. Court had upheld Sec. 106 except provisions that allowed ACHP to reverse finding by federal agency that siting decision had no impact on historic properties or “no adverse effects.” ACHP said objection by council or state or tribal historic preservation officer of “no historic properties affected” finding required federal agency to move to next step. At that next level, agency would assess whether effects of siting proposal were adverse. If ACHP objected to “no adverse effect” finding, agency had to try to resolve impact. While ACHP and DoJ are weighing whether to appeal invalidated provisions, council said it would provide “opinions” to federal agencies on findings of no adverse effects “whenever appropriate.” ACHP said: “However, such opinions will be advisory and will not require the federal agencies to continue to the next step in the Sec. 106 process.” If state or tribal historic preservation officer doesn’t agree with finding by federal agency that no historic properties are affected, ACHP said agency official should notify council “and seek an advisory opinion.” ACHP said that interim step wasn’t mandatory but “would help resolve disputes and avoid the potential for litigation or other delays.” CTIA had challenged final rule as part of ACHP’s authority to promulgate regulations that would bind FCC. CTIA also had contended that rule was arbitrary and unconstitutional.