Regulatory Reform

There has been a great deal of recent attention and emphasis placed upon what some consider to be burdensome federal regulations. Federal permitting and environmental review requirements, including historic preservation via Section 106, fall into this category, with some legislators and industries pushing for the “streamlining,” or in some cases the elimination of permitting and review requirements in order to expedite project completion.

In light of this, early in 2017, President Trump issued a series of Executive Orders (EOs):

EO 13771, January 30, 2017 – Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs. Essentially, this EO requires for “…every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.” Such regulations are also required to have zero cost.

EO 13777, February 24, 2017 – Presidential Executive Order on Enforcing the Regulatory Reform Agenda. This EO reaffirms Executive Orders issued previously (including a few by former Presidents) and requires each Federal Agency to review their existing regulations to identify those that:

(i) eliminate jobs, or inhibit job creation;

(ii) are outdated, unnecessary, or ineffective;

(iii) impose costs that exceed benefits;

(iv) create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies;

(v) are inconsistent with the requirements of section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note), or the guidance issued pursuant to that provision, in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or

(vi) derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.

Federal Agency Response

Each Federal Agency is approaching their regulatory review in different ways. Below are a select few that NCSHPO has been following:

Federal Communications Commission (FCC): In April of 2017, the FCC issued a draft Notice of Proposed Rulemaking (NOPRM) informed solely by the wireless industry that posed numerous questions concerning the review process for wireless technologies. They took particular aim at the Section 106 historic preservation review process. NCSHPO submitted comments to the draft prior to the FCC’s April meeting, and then submitted comments again once the final NOPRM was issued.

The Department of Transportation (DOT): In June of 2017, the DOT issued a notice broadly seeking comments on its existing policy statements, documents, and regulations to help them “identify unnecessary obstacles to transportation infrastructure projects.” The deadline was July 24, 2017. NCSHPO joined several national preservation organizations in signing a letter with a set of recommendations.

The Department of Interior (DOI): In June of 2017, the DOI issued a notice broadly seeking comments on its existing regulations. There is no deadline.

The US Army Corps of Engineers (COE): On July 20, 2017, under the Department of Defense Regulatory Reform Task Force, the COE issued a request “…seeking input on its existing regulations that may be appropriate for repeal, replacement or modification.” The original deadline was September 18, 2017, but they have granted an extension to October 18, 2017.

Principles for Historic Preservation in an Evolving Regulatory Environment

The National Conference of State Historic Preservation Officers:

…believes that historic preservation plays an intrinsic role in defining our diverse national identity, telling our stories, celebrating our many accomplishments and educating us about our shared American heritage;

…supports the existing federal historic preservation program which is designed as a partnership between federal, state, local and tribal governments – and ensures local citizen input into federal decision-making;

…acknowledges that the federal historic preservation program is inherently flexible – using consultation as a means to weigh pros and cons, consider alternatives, and find consensus on a path forward;

…works with federal agencies to negotiate, when appropriate, alternate procedures and methods to avoid, minimize or mitigate effects on historic properties, assuring reasonable approaches and treatments relative to the project;

…is committed to the Advisory Council on Historic Preservation’s 30-day-or-less review requirement;

…finds that early consultation with State Historic Preservation Offices paired with quality data leads to better results and more efficient project delivery;

…encourages investments in electronic survey, data and information systems to help streamline project evaluation, planning and delivery.