Overachieving and Preservation End-Runs

Random Acts of Science posted an entry on Walmart’s agreement to meet and exceed standard compliance measures for archaeological site discovery, evaluation and mitigation.  Walmart agreed to such, of course, to move their construction project along.  While the proof is in the pudding, so to speak, this is a tactic I have tried to use on occasion (both times for “good” I like to think).

I first suggested such a thing on a road development project back when I was a gadfly/university professor.   Interested parties were trapped in an endless cycle of long (and thus expensive) meetings mostly about the review process, which was thus proceeding at a glacial pace.  As the goals of the two major concerned parties were quite clear (“build the road here and reduce nightmare traffic issues” versus “build the road through someone else’s cemetery”), I suggested that there might be a design option that represented a compromise acceptable to both.  If we could identify that compromise early, then the review process would become a quicker, less combative, and less expensive march to the previously agreed upon compromise.  The compromise itself wasn’t that hard to find.  I was, of course, hopelessly naive and the idea went nowhere for several reasons:  meddling professors have a tendency to ask for the mile if you give them an inch, and they like to do so via the press; the parties had a history of lawsuits and nowhere near the trust level needed for such a maneuver; the regulatory agency representatives didn’t have the authority to do this and would have been hung out to dry by their bosses if things went wrong.   This affair was an important learning event that helped me move over to the private sector.  The theme however stuck in my head: “we can do better than what the regulations require all by ourselves if we really want to.”

A recent use of such tactics was more deliberate and calculating.   Without giving away too many details, here is a synopsis (think natural disasters as you read my vagaries).  A construction project was going to go forward; there was no way it was not going to go forward as it had huge implications for a community, and the governor and members of congress were going to make sure it went forward as disaster was imminent.  The type of project also meant it absolutely had to be built in a certain location or the cost would rise by a million or so (tax) dollars.  In that certain location was a large structure that was certainly eligible for the National Register of Historic Places.  The incremental review process was going to be too slow:  Write a report documenting the structure as potentially eligible; wait for concurrence.  Write a report evaluating the structure and recommending eligibility; wait for concurrence.  Write a report describing the project impact and evaluate alternatives; wait for alternatives to be rejected.  Write a mitigation/documentation plan; wait for concurrence.  Carry out the plan; begin construction.  I suggested to my client that since the end was inevitable, we go straight to the structural documentation, so that when the process caught up, everything was already ready.  We did so, and needless to say, the various review agencies were not at all happy, feeling in part that their hand was being forced.  In the end, however, they couldn’t complain too much, as the client had voluntarily and “proactively” taken on obligations and studies far exceeding what was required (at that point) by the regs.   Pretty much no one was happy, but the mitigation was completed, the building documented and demolished, and the project built.  From my perspective, this was a success as the inevitable occuried quickly and a potentially ugly (and damaging) cultural resources dispute (or waiver of regulations) was avoided.  You can be sure that other involved folks would spin the story quite differently (they can comment or get their own blogs).

Process-Arch  notes the pitfalls of this approach in his comment on the post: “What if the findings are such that in situ preservation would be preferable?”  For my demolition and construction project, what if I was wrong?  What if there was an alternative that got ignored because I pushed folks to jump the gun?  Well, if that’s the case, then I have done a very, very bad thing.  But I’m sure that’s not the case; the community and engineers and most everyone involved loved the structure; if there was an alternative, they would have taken it.    But the tactic is a two-edged sword.  What if a developer makes an agreement such as the Walmart agreement.  Their experts might decide nothing needs to be preserved in situ, even while everyone else thinks in situ preservation is the only viable option.    The regulatory agencies are going to have a really hard time backing up such a scenario, especially in the current climate.  The headlines will read, “X-Corp volunteers to exceed regulations and gets hog-tied by the regulators anyway” or something like that.   What happens then?  Rules will be changed, or waivers will be granted, or regulatory offices closed, or something along those lines.  It’s a problem CRM folks need to be considering at the level of the causes, not the symptoms.  Some recent symptoms: Archaeological Programs Targeted by State Budget Cutting and Iowa HF 267 Limits Authority of SHPO)

Until the regulatory agencies can move at the “speed of business” (which may never happen), perhaps on occasion the preservation-minded folks should move first and decide which end-run will be made.

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