By Amy Cole and Brian Turner
Today's working world is often all about “team building.” And there are ground rules for working as a team—to use more business lingo, let’s call them “best practices” and “worst practices.” In practice, Section 106 consultations should be a team exercise, with all parties working together to come up with an agreed-upon solution. Sometimes, however, consultations don’t work that way. As part of this series on Section 106, we will run posts on best practices and worst practices. In the final post of the series, Amy Cole and Brian Turner from the National Trust for Historic Preservation take a look at a recent successful example of Section 106 consultation and include a list of best consultation practices for agencies. In the coming months look for the next blog series on the National Historic Preservation Act, which will focus on Section 110.
Compared to other state and federal environmental and historic preservation laws, Section 106 is unique in that it gives parties with a “demonstrated interest” in a project affecting a historic place the ability to consult with the federal agency to “avoid, minimize, or mitigate” impacts. This power-to-the-people aspect of the law gives those who know their communities best a role in the decision-making process. Section 106 places faith in the power of discussion to resolve disputes.
But, as some of the most hardened advocates will admit, in practice, full consensus is a laudable goal that is rarely achieved. Ultimately all sides must be prepared to make some compromises in good faith.
Which begs the question, what is good faith? How much should advocates be expected to give up when things aren’t going their way? No consulting party has to concur with the Memorandum of Agreement (MOA) or the Programmatic Agreement (PA) that emerges from a consultation. Ultimately, the best exercise of good faith is advocates using everything at their disposal to make an outcome work.
A example of a recent successful consultation involved the Nike Site Summit in Alaska.... Read More →