Some Thoughts on the ACHP's Cape Wind Comments

On April 2, the Advisory Council on Historic Preservation (ACHP) fulfilled its duty under Section 106 of the National Historic Preservation Act by rendering comments on the proposed Cape Wind Project in Nantucket Sound. Without plowing through the background of this controversial case, or getting into the ACHP?s authority to issue such comments, or into what the Secretary of the Interior (who has authority over the project via the Minerals Management Service [MMS]), I?d like to offer a few comments on the ACHP?s comment.

The first page of the seven-page comment succinctly and ? as far as I can tell ? accurately outlines the background of the case. The second page briefly discusses the historic properties involved ? not only the Sound per se but the historic places that surround it on land, and rather elegantly sums up what?s involved as follows:

As evidenced by the Keeper?s determination, the written record, and the public testimony, Nantucket Sound has been for thousands of years and remains still an area of prime national, regional, and local importance because of its substantial economic, recreational, social, cultural, and traditional cultural benefits and attributes.

The comment then turns to the potential effects of the Cape Wind Project, which it summarizes as direct and indirect, unavoidable, and not subject to satisfactory mitigation. In general I find little to quibble with in this section of the comment, but there are a couple of peculiarities.

First, on page 3 the ACHP notes, with reference to a National Park Service study of the project?s impacts on two affected National Historic Landmarks (the Nantucket Historic District and the Kennedy Compound), that:

In its comments on the effects of the Project on the two NHLs, the National Park Service (NPS) concluded that the adverse effect of the undertaking would be indirect, because the adverse effects are visual only, limited in overall scope, and do not diminish the core significance of either NHL.

The ACHP does not analyze the NPS conclusion, but it seems wrongheaded to me. In what way is an effect indirect because it is ?visual only? or of ?limited scope?? Indirect impacts are defined in regulation as impacts that take place at a greater remove in time and space than direct effects do ? a fuzzy definition, to be sure, but one that has nothing to do with whether an effect is visual as opposed to something else, or to its ?scope.? One of the ACHP?s very first Section 106 comments, back in 1968 on the Easton Nuclear Plant, proposed for construction in the viewshed of Saratoga Battlefield, was entirely about visual impacts and made no bones about their being quite direct. The project was abandoned. As to the ?core values? of the NHLs ? well, this is the problem with things like NHLs. Whose ?core values? is the analyst to be concerned about? The values of the Secretary of the Interior, who designates NHLs? The values of the professionals at NPS who prepare the oh-so-scholarly analyses upon which designations are based? Or perhaps the values of the people who look out at the world from the properties, or at the properties from elsewhere? I doubt if it?s the people, and if it?s only the Secretary and his or her employees, should impacts on such ?core values,? or an alleged lack thereof, really be at the center of anyone?s analysis? The ACHP drops a hint on page 4, suggesting that it is concerned about this question:

The Project?s effects on this broad range of properties should not be viewed in isolation or labeled only as indirect or direct. Rather, because of their concentration and interrelation, they must also be considered together. In their totality, these effects are significant, adverse, and cannot be adequately mitigated.

The comment gives a fair amount of space to the project?s alleged potential impacts on submerged archaeological resources. I can?t help feeling that this is a bit of a red herring. Yes, there may be archaeological sites within the parts of the Sound that the project would physically disturb. Yes, these may be quite significant sites ? whether they?re very early ancestral Wampanoag sites or traces of Viking visitors. But the evidence that such sites exist is pretty thin, and a case could be made that the public interest lies in revealing and studying them (if they exist) rather than leaving them alone. I can?t see that the potential for impact on such speculative resources deserves quite the attention it has gotten, in the ACHP comments and elsewhere. Focusing on this potential seems to me to get the discussion off track. The big impacts of Cape Wind ? and the ones that are hard or impossible to mitigate ? are visual, and in the case of the Wampanoag, spiritual.

The comment next ? with remarkable straightforwardness ? eviscerates the federal agencies responsible for overseeing the project. MMS has not carried out its stewardship responsibilities under the National Historic Preservation Act and Executive Order 13287. The Corps of Engineers initiated Section 106 review too late, and initially focused its attention only on already-designated historic properties, ignoring the tribes? concerns about impacts on undesignated traditional cultural places (notably the Sound). MMS was slow to improve on the Corps? shoddy performance, and its consultation with tribes was ?tentative, inconsistent, and late.? The ACHP credits Secretary Salazar with getting the relevant issues ?properly resolved,? but the ACHP is, I think, just being polite. The Secretary?s intervention has brought the Section 106 process to a conclusion that?s more or less consistent with the letter of the regulations, but nothing can correct the mistakes made early on by the Corps and MMS, and it?s a mystery to me how any final resolution based on fundamentally flawed early planning and rotten consultation can be called ?proper.?

On page 5, the ACHP begins to offer its recommendations to the Secretary, commenting:

The development of renewable energy projects is not inherently incompatible with protection of historic resources, so long as full consideration is given to historic properties early in the identification of potential locations. The ACHP believes that wind energy production on the OCS in the vicinity of the current project area could proceed in a manner that would be consistent with protecting Nantucket Sound and the surrounding historic properties. It appears that the selection of nearby alternatives might result in far fewer adverse effects to historic properties, and holds the possibility that those effects could be acceptably minimized or mitigated.

This is certainly the heart of the matter, and it carries an important message for the wind energy industry ? and the solar, nuclear, geothermal, and other ostensibly green energy industries. Just because you?re wearing white hats these days, don?t assume your projects have no potential for deleterious effects, or that you can or should ride roughshod over other public interests. Like any other industry, you need to look before you leap, consider alternatives, and consult with affected people, before you start investing megabucks in your particular pet project. If you do it right ? if you really consider alternatives, really consult, really be considerate ? you can probably get your project done. If you don?t, it?s a crapshoot at best.

The ACHP then gets specific. Interior needs to improve its tribal consultation procedures ? something the Department is spending a good deal of time on at the moment, though I see little evidence that anyone is getting beyond mouthing the usual platitudes. The Interior-sponsored tribal consultations I have been involved in recently have not been encouraging. The ACHP also advises MMS to improve the way it integrates historic preservation into site selection and alternative analysis, and it offers a number of fairly concrete suggestions for joint actions by Interior and the ACHP itself (along with the Council on Environmental Quality and others) to improve the way impacts on historic properties are addressed in energy development planning. Two of these suggestions merit special attention, I think:

The ACHP and the NPS should develop guidance to assist federal agencies in determining and addressing the effects of energy projects, especially wind and solar projects, on historic properties that comprise large areas with indefinite boundaries. Particular attention should be given to properties of religious and cultural importance to tribes and cultural landscapes. This effort should draw on the experience of other nations in addressing this subject.

Having tried to supply such guidance for many years as a mere unwashed non-governmental consultant and book-writer, and having gotten used to being ignored, I welcome maybe getting some help from an official body -- and it's nice to see the ACHP recognize that other nations might have something to teach us. I fear, though, that it will be very, very hard for the vested interests in NPS at least to open their minds sufficiently to do much good, particularly since considering such ?large areas with indefinite boundaries? challenges notions that are deeply embedded in the brains of many National Register employees.

The ACHP and the NPS should assist agencies and applicants by sharing information on innovative and cost-effective strategies and techniques to identify all types of historic properties potentially affected by energy projects, not just standing structures and archaeological sites.

Indeed ? but this, too, is going to require some fundamental paradigm shifts, not only on the part of agencies like Interior but notably among the staffs of NPS, the ACHP, and particularly the State Historic Preservation Officers (SHPOs).

Unfortunately, the ACHP comment ends on a truly stupid note:

The Department should revive the proposal of the 2006 Preserve America Summit that was endorsed by the ACHP to develop a comprehensive and accessible national inventory of historic properties to assist in the identification of historic properties during the federal project planning process. Priority should be given to those areas under federal jurisdiction or control that have high potential for both traditional and alternative energy development.

Uhh?. guys, that was what people thought they were creating in 1966 when NHPA directed the Secretary to expand and maintain a National Register. It was a dumb idea then, and it obviously hasn?t worked ? that?s why the Corps? concentration on ?designated? properties early in the review of Cape Wind was a mistake. There?s a fair amount of literature (not all of it created by me) bearing on why such an ?inventory? is a silly idea, and particularly why some of the most sensitive kinds of properties ? like Nantucket Sound ? don?t and can?t be captured by such ?inventory? efforts. Holding on to this ridiculous recommendation undercuts the intellectual integrity of an otherwise excellent comment.

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