HISTORIC PRESERVATION UNIT FACES OBJECTIONS ON TOWER SITING RULES

Pombo and National Parks Subcommittee Chmn. Radanovich (R-Cal.) filed comments at the ACHP last week on a Sept. proposal for changes in Sec. 106 rules under the NHPA. In a rulemaking notice, the Council said it was responding to recent court rulings that the ACHP couldn’t compel a federal agency to change its determinations on whether an “undertaking” affected or had an adverse impact on historic properties. The court said Sec. 106 didn’t apply to undertakings that were “merely subject” to state or local rules under authority delegated by a federal agency. The changes ACHP is considering would spell out that it could propose an exemption to the Sec. 106 siting process on its own, rather than waiting for a federal agency.

The latest ACHP proposal comes as the FCC continues work on a comprehensive nationwide agreement negotiated with ACHP and others to streamline siting decisions for wireless and broadcast towers. The point of the agreement has been to streamline Sec. 106 siting agreements by spelling out compliance for state historic preservation officers and industry. An FCC source said the agreement was expected to be released early next year. A similar accord in 2001 focused on co-location on existing towers, while the pending draft covers new sites. The latest agreement would outline criteria under which tower projects could be excluded from routine review.

Pombo and Radanovich raised concerns about a past change in the Council’s rules that defined property eligible for the National Register of Historic Places as including any that met National Register criteria, rather than ones specifically designated by the Interior Secy. That means properties warranting Sec. 106 siting review based on the National Register criteria could reach the tens of millions, they wrote. “Among others, the wireless telecommunications industry has been particularly burdened by this policy,” Pombo said, citing the FCC requirement that projects of cellular licensees undergo Sec. 106 review. Because cellular towers often are visible for great distances, state historic preservation officers (SHPOs) often define an area of potential effects from a wireless tower as circles, with the tower in the center, and a radius of up to 2 miles or more, they wrote. Because Council rules require a licensee to assess the potential eligibility of every structure in that radius, that can require filing hundreds of forms for a single tower project, the legislators said.

“The inclusion of potentially eligible properties and the requirement of assessment of visual effects from cellular towers threatens to have the cumulative effect of turning Section 106 into a virtual national zoning statute, to the detriment of the rights of millions of property owners,” Pombo and Radanovich wrote. “Local laws are increasingly being used to discourage development by those who may, or may not, have an interest in historic preservation.” They asked ACHP to address that in the rulemaking or in program agreement negotiations with the FCC and the National Conference of State Historic Preservation Officers.

The FCC, in staff comments filed last week, told ACHP Exec. Dir. John Fowler that the proposed changes would be supplanted by the program agreement when it was completed. If the agreement isn’t adopted before the Council takes final action on the rulemaking, the FCC said it was possible the Council’s proposed rules “could apply to the Commission for a limited period of time.” The FCC said it submitted feedback on the proposed rules out of an “abundance of caution.”

If read literally, the FCC said, the proposed rules “appear to contemplate Council review in cases in which there is no real disagreement as to whether a proposed undertaking will affect historic properties listed or eligible for listing on the National Register. We doubt that the Council intended to require Council review in these situations and we ask for clarification on this point.” That part of the proposal would hold if there were a finding that no historic properties were present, or they were present but the project would have no effect. The change would provide that if the ACHP or a state or tribal historic preservation officer objected within 30 days of such a finding, the federal agency must submit the finding for ACHP review. “The proposed requirement that a SHPO/THPO objection automatically triggers Council involvement could unnecessarily complicate and delay the historic preservation review process for telecommunications projects and other undertakings,” the FCC said. That doesn’t appear to give agencies enough flexibility to resolve differences with a state or tribal historic preservation officer, “as is done routinely now under the existing Council rules, without Council involvement,” the Commission said.

The FCC also expressed concern that unless used “sparingly,” the proposed rules allowing the ACHP to direct opinions and to require a response from the head of the agency was “likely to cause harmful administrative delays.” If that part of the proposed rules were used by Council to require a response from an agency head “in other than very rare instances,” that could impede the work of federal agencies, particularly those such as the FCC, the filing said. “Requiring a decision by the full Commission in even a fraction of the thousands of licenses and authorizations for telecommunications radio services issued by the agency each year would not only delay the deployment of needed service to the public, it could also delay Commission consideration of other important issues of telecommunications policy having no historic preservation implications,” the staff comments said. Separately, the Commission said it supported a proposed change that would allow the Council to initiate Sec. 106 exemptions and program alternatives on its own initiative.

PCIA also raised concerns about the ACHP proposal: “PCIA takes issue with the stated purpose of the proposed amendments and with the legally questionable foundation in the current Section 106 rules upon which the amendments are to rest.” It also objected to an ACHP proposal that would require a federal agency that received an objection to a finding of “no adverse effect” or “no historic properties affected” submit the finding to the ACHP for review. “The proposed amendments would impose burdensome procedures that cannot be implemented in a reasonable and timely fashion by the ACHP and they would add additional, unreasonable and unnecessary delay and expense to the Section 106 process,” PCIA said.