On June 7, 2019, the Advisory Council on Historic Preservation’s (ACHP) Office of General Counsel issued a memorandum to ACHP staff, clarifying the distinction between direct and indirect effects in meeting obligations under section 106 of the National Historic Preservation Act (NHPA).  ACHP’s memorandum is important to utilities, industrial, commercial and other entities because federal licensing and permitting agencies (e.g., U.S. Army Corps of Engineers (Corps), Federal Energy Regulatory Commission, U.S. Forest Service, and U.S. Department of the Interior) are required under NHPA section 106 to evaluate effects of the license or permit on properties that are listed, or eligible for listing, in the National Register of Historic Places.  ACHP’s memorandum clarified that direct effects may be the result of a physical connection, but may also include visual, auditory, or atmospheric impacts as well.

ACHP’s memorandum is a result of recent litigation concerning a dredge-and-fill permit issued by the Corps under section 404 of the Clean Water Act (CWA).  On March 1, 2019, the U.S. Court of Appeals for the D.C. Circuit Court in National Parks Conservation Association v. Todd T. Semonite, Lieutenant General, et. al., held that the Corps’ environmental review of a permit needed to facilitate the development of an overhead transmission line was inadequate for purposes of NHPA section 106 and the National Environmental Policy Act (NEPA).  The proposal included one transmission line, approximately eight miles long, that would be located along the historic James River and Jamestown area in Virginia.  In 2013, because the project would cross “waters of the United States,” the applicant applied to the Corps for a permit to construct the project.  Before issuing the permit, the Corps was required to satisfy NEPA by considering the proposal and alternatives to it and prepare an environmental document—an Environmental Assessment (EA) or, if it found that the project would “significantly affect the quality of the human environment,” including its effect on historic resources, a more thorough Environmental Impact Statement (EIS).  Under NHPA section 106, the Corps also was required to consider “the effect of the undertaking on any historic property.”  If the project might “directly and adversely affect any National Historic Landmark,” NHPA section 110(f) required the Corp to take steps “to minimize harm” to that landmark.  Neither the NHPA nor its implementing regulations provide a definition of “direct” effects.

In preparing a preliminary EA under NEPA, the Corps relied on a Cultural Resources Effects Assessment prepared by the applicant and determined that the project would have an adverse but non-significant effect on historic resources, and that preparation of an EIS was unnecessary.  Throughout this process, the Corps received approximately 50,000 comments, many of which urged it to prepare an EIS and more thoroughly consider the project’s impact on the historical resources and landscapes in the project area.  Notably, the ACHP and National Park Service (Park Service), which is part of the U.S. Department of the Interior (Interior), filed comments stating that the project would have serious adverse effects on a historic landscape.  They and other commenters criticized the Corp’s socioeconomic, visual, and cumulative effects analyses; its evaluation of alternatives; and its methodologies.  Nonetheless, the Corps issued its permit for the project and executed a Memorandum of Agreement (MOA) with the applicant, under which the applicant agreed to undertake various measures to offset the project’s harm to historic resources.

Several conservation groups filed suit against the Corps, alleging that the Corps failed to satisfy its obligations under NEPA, NHPA, and CWA.  Although the district court granted summary judgment on the basis that the Corps made a “fully formed and well-considered decision,” upon review the D.C. Circuit reversed, holding that:

  • The degree to which effects on the quality of the human environment were controversial supported a finding that an EIS was required under NEPA;
  • The project’s impact on a unique geographic area and historical places supported a finding that an EIS was required under NEPA;
  • The project’s adverse effect on historically significant sites listed in or eligible for listing in the National Register of Historic Places supported a finding that an EIS was required under NEPA; and
  • The Corps failed to fulfill its obligation under section 110(f) of the NHPA because the project would “directly and adversely” affect a national historic landmark, despite its lack of a physical impact.

In reaching its decision, the D.C. Circuit also considered the “unique characteristics of the geographic area such as proximity to historic or cultural resources,” and Congress’s consistent commitment “to protecting and restoring the James River for the enjoyment and prosperity of current and future generations.”  The court focused heavily on the historical importance of the area, as well as its aesthetic value, including fifty-eight sites that are either listed in the National Register or eligible for inclusion in it.  Finally, the court rejected the Corps’ finding that, because the transmission line would not “directly and adversely” affect a National Historic Landmark under section 110(f) of the NHPA because it did not physically intrude on the landmark’s grounds.

On June 7, 2019, the ACHP’s Office of General Counsel issued a memorandum to its staff to clarify the meaning of “direct” in light of the Court’s opinion and indicated that the Park Service is considering issuing a similar guidance document.  The memo clarified that, while section 110(f) “clearly includes physical effects, it is not limited to them,” and that, if Congress had intended to limit section 110(f)’s reach to physical impacts, it would have used the word “physically” instead of “directly.”  It explained that, while direct effects may be the result of a physical connection, they may also include visual, auditory, or atmospheric impacts.  It also stated that, while the Court’s decision does not impact when section 106 of the NHPA applies, it does provide guidance as to how “effects” should be categorized.  For purposes of project reviews, the memo explained that the court’s clarification will “change the approach to defining effects based on physicality.”

The court’s opinion is available here, and the ACHP’s memorandum is available here.