Friday, June 17, 2011

MSD needs to engage the preservation community and residents on Section 106 review

Protecting unique and even ordinary  structures is why we have a section 106 review process.
MSD has retained Gray and Pape as their consultant on Section 106. Knox Hill Neighborhood Association has sought to be a consulting party on this section 106 process. In spite of numerous requests MSD continues to ignore Preservation interests and I find myself asking why?

Could it be this process is more complicated that they first realized and frankly they are very "late in the game" if they expect to complete this process by 2012 when they need EPA sign off? In fact, truth be known, they were not even dealing with this issue until I brought it to their attention after letters sent out to the community in may announcing demolitions this spring..

Do we sacrifice buildings like this or do we engage the public in a way to work the project around them?
The law is very clear, section 106 requires all  federal agencies(EPA) to take into account the effects of their undertakings on historic properties PRIOR to the approval of any expenditure of any Federal funds or the issuance of any federal license or federal Permit. MSD has already received some 850,000 in funds as part of an federal earmark for this project.

Frankly the fact they have already acquired property without even knowing which plan would be accepted shows a reckless disregard with taxpayer funds, OR, it indicates that there is only one plan, their plan and all the public meeting are mere " theater" on their part to look a if they are engaging the community? While that might work in the world of local Cincinnati "back room deals" that doesn't work in the federal arena, especially in an Election Cycle.


What MSD and their consultants, do not realize, is that section 106 review doesn't work that way, especially on a major project like this where Federal mandates and  federal funds are involved.

The views of the public are essential to informed decision making during 106 and it is the responsibility of the agency to seek and consider the views of the public. The delegated authority (in this case MSD) MUST provide the public with information about the project and allow the public to comment. Members of the public may also provide views in their own initiative for the Federal agency to consider, For example, a plan with reduced daylighting that preserves the Fairmount Historic business core in conjunction with a redevelopment plan.

When a governmental entity begins an 'Undertaking' the  106 term for a project. The project qualifies as an "undertaking" according to the section 106 regulators [36CFR 800.3(a)] a section 106 review must be completed.

These properties across from MSD's project need to be part of the APE because they are historic eligible and could be "adversely impacted" by the loss of residential historic housing across from them.
The other big issue is the APE a projects "Area of Potential Effect". Unlike an archaeological project (like the Washington Park project)an APE is much more than just the properties proposed for demo ( Every property older than 50 years old in the area is subject to review), nor is it limited to the outdated city historic building inventory report done in 2003. An APE boundaries must include  properties that meet historic eligibility that might be "adversely impacted" by the undertaking such as all the properties that will face this project. Especially if there is any chance that the federal floodplain might be altered due to the daylighting of a waterway and perhaps require flood insurance.

Determining the APE is the most critical step in the entire section 106 process. ONLY after an APE has been determined can one process with the remainder of steps of the section 106 process. With this project and the fact  MSD has acquire some 84 properties in the valley during the forfeiture sale the area of the APE is greatly expanded. For example MSD has acquired property within and adjacent to Knox Hill's proposed historic district. If MSD presumes the APE to only be between Queen City and Westwood and go forth with that 'assumption' they may be surprised when the OHPO rejects their section 106 because the APE is too small and clearly other potentially historic property that may be outside the boundaries but adversely effected by it are no include. That means "back to the drawing board and a much larger APE must be developed and expanded section 106 review must be done. It also means MSD need to publicly disclose the purposes of those  acquisitions and their intended use as part of this project in the present or future.

If MSD and Gray and Pape, wish to exclude Knox Hill and the residents of Fairmount, they do it at their own peril and they can not legally shut out their opinion or proposals as that will still be communicated directly to OHPO . However these attempts to shut out the public will negatively impact their plans when it comes time for EPA to sign off and in fact could result in the rejection of any plan if it appears MSD is not properly engaging the public and their voices are not being heard.


I encourage MSD to get out of the "smoke filled back room" and engage in a transparent public process.

Email Ms Lodor at MSD marylynn.lodor@cincinnati-oh.gov or our Mayor,  mayor.mallory@cincinnati-oh.gov  and tell her that we want an open process.

2 comments:

Caroline said...

As someone who deals with Section 106 on a daily basis (as a SHPO reviewer), the steps that you have outlined do not work that way. Sure the intention is there, but in the daily application of 106, it doesn't pan out. Federal agencies rarely do what they should. Mostly because the people doing the reviews have little or no knowledge about historic preservation. Public comment is rarely obtained. In fact, when we deal with adverse effect projects, we have to make sure the public has been informed. And yet, that's not our job.

Entities receive funds all the time before doing Section 106. HUD in particular will send funds to their entitlement cities and other organizations, and then the Section 106 process kicks in once the project has been identified. In fact, I prefer to review projects once they have been funded. It's a waste of my time to review projects that are not even funded yet. Staff and budget cuts have necessitated a better use of our time. However, in cases of projects that a large and far reaching (as seems to be the case here), we do encourage applicants to notify us as soon as possible so we can head off any issues that may result in an adverse effect.

You may be interested in going to the Advisory Council's website, www.achp.gov. They taking comments on the Section 106 process until July 1 in hopes that they formulate some changes to the system. And I certainly encourage you to contact your SHPO. We are not the preservation police, but I know we try to keep an eye on frequent "offenders." Best of luck to you!

Paul Wilham said...

They already have some federal funds , an 850K earmark, and they are buying property. In fact they were already planning demolitions of 9 buildings when I brought up section 106 review issue and process.

I am already in touch with people at advisory council and the EPA section 106 review contact, as well as our local SHPO