Historic Preservation and the Law: The Dakota Access Pipeline and the UConn Faculty Row Cases
It has been an interesting, if disconcerting, Fall regarding historic preservation and the law. In North Dakota, Army Corps of Engineers’ arguable mismanagement of the Section 106 process under the National Historic Preservation Act led to what was arguably the largest Native American protest in history. Much of the controversy over the Dakota Access failure ultimately boils down to five issues in my opinion. First is the Army Corps strict interpretation of its regulatory jurisdiction, which is in most cases limited to areas proximal to water crossings, rather than accepting the entire area of the undertaking as part of the Area of Potential Affect. Second is the limitation of NHPA regulations on private property – which made up much of the pipeline corridor in this case. Third, while one might expect that National Environmental Policy Act regulations would apply to a massive federally-permitted project such as this, it turns out that the most reasonable lead agency, the Federal Energy Regulatory Commission apparently has no regulatory authority over oil pipelines, though it does over gas pipelines. Fourth, tribal individuals and other critics have argued that standard archaeological surveys are not effective at identifying Traditional Cultural Properties because of a lack of cultural knowledge by most archaeologist. Finally, while the Army Corps says that they met tribal consultation requirements (a claim supported by a September court ruling), some Native American communities appear to have refused consultation, claiming that the Army Corps had not appropriately defined the full scope of project impact. Clearly something with the consultation process broke down, or the protest would not have exploded the way it did.
In short, the areas that fell under Section 106 review were largely limited to public lands at water crossings. In these areas, archaeologists completed surveys and identified 149 potentially National Register eligible sites, 140 of which were avoided (most of these were actually stone structure features that could be considered Traditional Cultural Properties). The remaining nine sites were to be mitigated in cooperation with the State Historic Preservation Office. However, much of the most contentious controversy over impacts to potentially sacred sites occurred on areas of private property that did not fall under the federal review process as it currently functions. Under White House pressure, the U.S. Army Corps of Engineers eventually denied the easement for the oil pipeline to cross under Lake Oahe, a Corps-managed reservoir on the Missouri River – something many tribes and other concerned citizens had been requesting for months. The future of that reversal is very much up in the air as we approach the new Trump administration.
Close to home, UConn has finally agreed to spare two of the nine faculty Row Houses during construction of a new recreation facility and campus redevelopment project. The State Historic Preservation Office (SHPO) has also asked that OSA conduct some archaeological investigations of the houses to better document their changing use throughout the 20th century. The nine houses were listed on the National Register of Historic Places in 1982 when they were also under threat of demolition, and every few years, that threat would be raised again. The most recent proposal resulted in a long-term negotiation between UConn and the SHPO. Actions by state agencies (and UConn is effectively a state agency in this case) are assessed under the regulations described in the Connecticut Environmental Policy Act (CEPA). CEPA is the state’s corollary to the National Environmental Policy Act (NEPA) and creates a framework to evaluate state-level project effects on the natural and cultural environment.
Meeting CEPA obligations simply means that the acting agency must “identify and evaluate the impacts of proposed State actions” to cultural and historic resources. In this case, UConn argued that preservation of the buildings was an unreasonable burden, primarily because of the costs of bringing these buildings up to code, but also because they were in the way of the new planned open space and recreation center and could not easily be avoided. In short, the resources were “identified and evaluated,” but their preservation was not considered feasible. SHPO issued a letter of adverse effect and requested mitigation to compensate for the historic loss. So, CEPA requirements were met through this process of evaluation and recommended compensation. Many members of the public were upset that another “CEPA,” the Connecticut Environmental Protection Act, could not be applied. The Environmental Protection Act includes language that gives the Historic Preservation Council (on which I sit) legal authority to invoke a “stay of demolition” for projects that do not fall under state environmental review regulations – typically for private undertakings on private lands that result in the unreasonable demolition of historic structures. In this case, initiation and completion of the Environmental Policy Act meant that action under the Environmental Protection Act simply did not apply.
Much of the negotiation between the SHPO and UConn during the past year was therefore focused on mitigation measures. These mitigation efforts included additional documentation of the houses, greater historic preservation efforts included in future campus development, and for UConn to provide a venue for a state-wide symposium on best practice in preservation for municipal leaders in the spring of 2017. This Fall, the state Office of Policy and Management also determined that the houses could not be demolished until mitigation was completed – effectively delaying demolition for a number of months. Further negotiations have resulted in the preservation of two of the buildings and continued commitment from UConn to adopt an enhanced review process for projects impacting historic properties in the future. As noted at the beginning, SHPO also contacted me about the possibility of running some archaeological programs on the faculty row houses that will be preserved. This programming would include shovel test pit excavations by students, and hopefully the public, to document the changing use of these buildings through their history. I’ll be sure t get the word out when that work gets scheduled, so pay attention to the Office of State Archaeology Facebook page in the coming months.