Paul Kirby
Telecommunications Reports International Daily
April 21, 2005
A CTIA official told a House subcommittee today that the wireless industry
supports a proposed modification to an historic preservation law that would
dramatically limit the number of sites that would be subject to review when
companies are siting antennas. But representatives of the National Park
Service and the tribal and historic preservation communities vigorously
opposed that and other proposed changes, saying they would gut protections
in the current law.
The proposed changes to the National Historic Preservation Act (NHPA) of
1966 were discussed at a hearing held by the House Resources Committee's
national parks, recreation, and public lands subcommittee. Witnesses and
subcommittee members voiced opinions on a "discussion draft" proposing
changes to the NHPA. The proposal that drew the most interest - and
criticism - was one to amend section 106 of the act.
Under section 106, federal agencies must determine if a proposed federal
"undertaking" could have an adverse impact on historic properties that are
either listed on the National Register of Historic Places or are eligible
for being listed. The draft proposes to limit eligibility to properties that
are either listed on the National Register or are determined to be eligible
for listing by the Department of the Interior secretary.
Michael F. Altschul, CTIA's senior vice president and general counsel, said
the proposed change would "restore some certainty and finality to the
process" that wireless carriers and tower companies face when they attempt
to site antennas.
He complained that the FCC, the federal Advisory Council on Historic
Preservation (ACHP), state historic preservation officers, and historic
groups "have taken the position that the industry must consider any property
that could conceivably meet the National Register criteria - potentially any
property over 50 years old (a universe of properties that could run into the
millions) - even if no steps had ever been taken to nominate the property
for inclusion in the National Register. . . . The result is a process that
forces the wireless industry to make siting determinations that are forever
subject to review and reversal."
Mr. Altschul stressed, however, that the industry realizes the need to
protect sensitive sites and said in response to questioning that it was
committed to working with tribes to address their "unique needs."
Several subcommittee Republicans complained that the NHPA has been used as a
tool to thwart development even when properties aren't historically
sensitive. "Where is this going to stop?" asked Rep. Devin Nunes (R.,
Calif.), the panel's chairman, noting the relatively few number of
properties reviewed that end up being listed on the National Register.
"There's got to be a problem here with this process." He also said he
circulated the draft legislation "so we can have discussion" on the issues.
Rep. John J. Duncan (R., Tenn.) said he considers himself an advocate of
historic preservation, but he added that the review process has become
"almost ridiculous."
But several Democrats and witnesses complained that the section 106 change
would mean that scores of properties that aren't listed on the National
Register, but that are sensitive, would no longer be protected. They also
said that any necessary changes to the section 106 process could be
addressed administratively.
Redefining which properties are "eligible" for protection "violates the
spirit" of the NHPA, said Rep. Dale E. Kildee (D., Mich.). Del. Donna M.
Christensen (D., VI), the subcommittee's ranking member, said the proposed
change could have a "devastating impact" on many properties and seemed
skeptical of Mr. Altschul's contention that the industry wanted to take into
account tribal needs despite pushing for the change in the law. In a
statement, the full committee's ranking member, Rep. Nick J. Rahall (D.,
W.Va.) said the changes proposed in the draft "would turn the act into a
relic."
Seven groups wrote the subcommittee this week opposing the section 106
changes, saying they would limit review of more than three quarters of the
current inventory - or millions - of structures that currently fall under
the law. Of particular concern would be tribal properties of religious or
cultural importance - only a small portion of which are listed on the
National Register, the organizations said.
Signing the letter were the National Trust for Historic Preservation, the
National Conference of State Historic Preservation Officers, the National
Association of Tribal Historic Preservation Officers, the Society for
Historical Archaeology, Preservation Action, the American Institute of
Architects, and the American Cultural Resources Association.
At today's hearing, James T. Martin, executive director of the United South
and Eastern Tribes, which represents 24 tribes from Maine to Texas,
complained that the proposed change to the section 106 process "represents a
draconian measure that would strike at the heart of tribal identity,
severely undermine the progress made by the tribes in recent years to have
our sacred places respected and protected, and would represent the single
worst piece of legislation for tribal culture since the infamous General
Allotment Act of 1887, which resulted in the loss of two-thirds of tribal
reservation lands to non-Indian settlement." He said many tribes don't want
their lands listed on the National Register or in other databases for fear
of vandalism to artifacts.
John L. Nau III, chairman of the ACHP, complained that a "static listing" of
properties protected under section 106 would mean that sites deemed
important in the future would not be protected from development. "We
absolutely have to craft a flexible program that allows sites to come on,"
he said. He also pointed out that most historic properties that are eligible
for the National Register "have not gone through the formal nomination and
designation process," adding that cases in which the Interior secretary has
determined eligibility "are few and far between." He also said that any
problems with section 106 implementation can be addressed administratively.
Emily Wadhams, vice president-public policy for the National Trust for
Historic Preservation, said that if the legislation passed, section 106
would protect only the 79,000 properties and districts on the National
Register and 9,700 additional properties deemed eligible by the Interior
secretary, while depriving protection for more than 350,000 historic
properties determined eligible through consensus by historic preservation
officers and federal agencies. The change also would "pose an especially
significant threat to tribal historic resources and archeological sites,"
she added.
Janet Snyder Matthews, associate director-cultural resources for the
National Park Service, agreed, saying, "The law passed in 1966 provides the
flexibility needed to accommodate a nation's changing sense of what is
historic and worthy of preservation."
Mr. Martin said Congress should put "more teeth into the law" by giving
tribes veto power, rather than just a consultative role, over projects that
could harm their lands. He also stressed that tribes are willing to work
with what he called a "very reluctant" industry on antenna siting issues,
citing their participation in a nationwide programmatic agreement signed
last year by the FCC, the ACHP and National Conference of State Historic
Preservation Officers. However, he singled out Sprint Corp. as being
particularly cooperative on siting matters. He also said that more than 300
tribes have entered areas of cultural interest into an FCC database designed
to streamline the antenna siting process.
Copyright (c) 2005, Telecommunications Reports International, Inc.