The Reagan administration is stepping up its efforts to persuade the Advisory Council on Historic Preservation to rewrite its rules for reviewing federal projects that could adversely affect historic sites.
Previous attempts by the administration to force similar changes have been rebuffed by preservationists on the council, who say that current rules reflect the intent of Congress and that agencies have been able to live with them.
On Thursday, backed by a Justice Department opinion that the current regulations go beyond the law, council member John F.W. Rogers, a White House aide, plans to present a new proposal to the council's task force on regulations.
Preservation forces, led by council member J. Rodney Little, say the new approach, which was circulated in draft form, differs only slightly from a package of rules that the Office of Management and Budget previously proposed and the council rejected. But Rogers and OMB officials believe that a majority of the task force's members will be willing to support the new proposal and push it before the council.
Under the law that created the council in 1966, agencies must "take into account" the potential impact of federal "undertakings" on any structure listed in the National Register of Historic Places or eligible for the list.
The current rules require agencies to identify historic properties that would be affected and work with State Historic Preservation Officers to mitigate the effects.
State offices reviewed about 40,000 federal "undertakings" in 1983, ranging from construction and repair projects to loans and loan guarantees, according to a council official; 2,500 cases were forwarded to the council's 30-member staff for additional review, and five were considered by the full council.
When Republican Alexander (Sam) Aldrich was appointed council chairman in 1981, he wanted to streamline what he considered a cumbersome process and strengthen the role of the state officers. Aldrich's proposal passed muster at most agencies in 1982, but then-Interior Secretary James G. Watt complained to OMB that the proposal went beyond the law.
Christopher C. DeMuth, then head of OMB's regulatory office, told Aldrich that any new regs must include "a reduction in red tape and delay" -- which he said Aldrich's plan lacked. OMB got Justice to issue an opinion that said, among other things, that the council's authority was too broad and that state officers had no right to review the projects and work out compromises.
Instead, OMB wanted to drop the requirement that agencies identify historic properties that might be hurt, end consultation with the state officers and make the council's opinion advisory.
Rogers said, "I don't want to gut the council, but I don't want to ignore a legal opinion by the Justice Department either."
However, several key members of Congress, as well as key preservation groups and the council's professional staff, agree with Aldrich that Justice's opinion is flawed in stating that agencies can decide whether to submit information to the council. If the agencies don't have to "take into account" the potential impacts, Little and Michael Ainslie, former head of the National Trust for Historic Preservation, wrote Aldrich, "ultimately and inevitably, historic properties will be lost. We cannot believe that this represents the type of public policy that this administration seeks to promote. If it is, we deplore it."
"What the administration would like to do is simply put an 'X' on a map of the United States and submit that to the council and tell the panel 'that's the project,' " said Little, the top state preservation official in Maryland and president of the National Conference of State Historic Preservation Officers. "We on the council need more information to make decisions. All we want to do is have rules that tell agencies what to submit and to make sure they consider alternatives to a project that could harm a historic property."
Loretta Newman, an aide on the House Interior subcommittee that oversees historic preservation issues, said: "If we adopt the Rogers approach, we might as well shut down the council. For a preservationist, he's adopted a simply horrible position."
But Rogers disagreed. "My reading of the law is that the council can only comment on an agency proposal. The rules now require a federal agency to do a lot of things that are not prescribed by the law."
One senior council staffer said Rogers' view presumes that the agency's burden would be relaxed if it drew up its own rules and that the council could handle the additional work if the state offices were eliminated from the process.
"I regret that this is beginning to look like a confrontation between the intent of Congress and the administration because I always viewed myself as part of the administration," Aldrich said. "But we must regulate the way other federal agencies function -- they must take into account certain historic values when they make decisions that affect the public. That can't be left up to a hodge-podge of different agency regulations."
Aldrich added that if the task force can't reach a compromise, the best alternative may be for the council to issue the administration's rules and then let Congress complain that that's not what it meant. "That," he said, "will force them to write new legislation."