 Hi everyone. Thank you so much for your patience as we battled with a couple of technical issues. Welcome to the second Pass Forward 2020 workshop on Rondes and Covinge for the National Trust and you're watching the issues in this organization. We'll get started right away by a couple of I want to let everyone know that we are recording the second so if you need to leave at three o'clock we will be available in November following the virtual conference. Second, we ask that you adhere to the conference code of conduct that can be found on the left side of your screen in the menu on the left. If you are looking to for community education units, we ask that you fill out the AIA session attendance form that is also on your page or some report for AICP planning. Finally, if you have questions for the panelists, please do put them in the chat. I'd like to introduce speakers. Their profiles are available on the conference platform. We had a lot of time to review them but we have today a wonderful program with Betsy Merritt who is Deputy General Counsel with the National Trust for Historic Preservation followed by Kelly Canizzo with the Advisory Council on Historic Preservation, Chris Cody, Associate General Counsel with the National Trust for Historic Ross Bradford who is Deputy General Counsel at the National Trust and with that I will pass things over to Betsy. Thanks, Betsy. Good afternoon everyone. Let me know if you can't hear me. Thank you for your patience with our technical difficulties. I'm Betsy Merritt, Deputy General Counsel and I want to welcome you all to our workshop on issues in preservation law. I'm going to start by discussing NEPA which is in many ways the foundational law for the federal review process even though it was enacted several years after some of the other key laws like the National Historic Preservation Act and Section 4-F of the Department of Transportation Act to say nothing of the 1906 Antiquities Act which I'm also going to discuss. The next hour is going to be a whirlwind and we have a lot to cover so let's dive in. Next slide please. NEPA is the federal law most familiar to the public and it often serves as the forum or the mechanism through which many of the different federal environmental and preservation laws are carried out. NEPA requires the disclosure of impacts that may result from projects with federal involvement and it requires the consideration of alternatives and mitigation and an opportunity for public comment. However, the agency is not required to change a single thing about the project. NEPA is strictly procedural. Next slide please. NEPA applies to all environmental resources including historic and cultural resources and in the historic preservation arena NEPA is not limited to properties that qualify for the national register. It's broader. The way it's supposed to work is that the public comment opportunity is supposed to allow for the creation of public pressure on the applicant or the decision-making agency to essentially shame them into modifying the plans in order to reduce adverse impacts and sometimes that works but there are several drawbacks to NEPA. If you don't like the outcome of the agency's decision the only recourse is litigation which can be very unpredictable and costly. There's no requirement to adopt the mitigation or the less harmful alternatives and there's no binding enforceable agreement as we have under section 106 of the National Historic Preservation Act and agency practices are very inconsistent. Next slide please. So here's the statutory language which requires an EIS when there's a major federal action significantly affecting next slide please. I don't see it yet. Uh-oh. Here we go. Major federal action significantly affecting the quality of the human environment. Much more common is the preparation of an environmental assessment in order to determine whether or not to prepare an EIS. Those environmental assessments usually result in the finding of no significant impact or FONZ but nonetheless they provide an important vehicle for public input. Next slide please. The NEPA regulations have long required specific consideration of cumulative impacts which are defined as the incremental impact of the action when added to other past present and reasonably foreseeable future actions regardless of what agency or third party may undertake those other actions. This definition and this requirement has also been adopted into the section 106 regulations. Next slide please. Well in 2020 the Trump administration issued some dramatic revisions to the NEPA regulations significantly cutting back on things like public comments, judicial review, consideration of cumulative impacts and allowing non-federal applicants much more control over scripting the review process. Five lawsuits were filed challenging these regulations as being inconsistent with the NEPA statute. The National Trust joined a lawsuit filed by the Southern Environmental Law Center with a coalition of 17 co-plaintiffs and our case is still active. The federal district court held that judicial review of the Trump NEPA regulations was premature because they were too new and there was not enough information yet about the nature and magnitude of the environmental harm they're causing but that was well over a year ago so the Court of Appeals may well disagree. The appeal is being argued on Wednesday October 26th before the U.S. Court of Appeals for the Fourth Circuit and these days the public can typically watch or listen to those arguments on Zoom so stay tuned I'll try to post a link in the chat about how to find that oral argument. Meanwhile the Council on Environmental Quality under the Biden Administration has slowly begun the process of reversing the Trump-era NEPA regulations with the first step being restoration of the requirement to consider cumulative impacts effective on May 20th of this year but the rest of the Trump regulations remain in effect for any NEPA reviews initiated after September 14th 2020. Next slide please. Now I want to shift gears and summarize Section 4-F of the Department of Transportation Act which is my favorite federal historic preservation law because it is the strongest. Section 4-F says you cannot use certain types of protected sites for a transportation project unless there's no feasible and prudent alternative to doing so and the project includes all possible planning to minimize harm. Next slide please. It was signed into law on the exact same day as the National Historic Preservation Act October 15th 1966 so this past Saturday was the 56th anniversary of the enactment of these important preservation laws. Section 4-F evaluations are usually incorporated as part of a NEPA document and even though it's a substantive mandate it is only enforceable through litigation as is the case with NEPA. Next slide please. Section 4-F applies to all projects with some involvement by the U.S. Department of Transportation whether that involvement is actual federal funding or just merely a requirement for federal approval such as the construction of a new interchange on an interstate highway. The law protects four different types of properties historic sites public parkland recreation areas and wildlife refuges. Next slide please. One issue under section 4-F is the definition of use and that's what triggers the strong mandate. In addition to physical encroachment the statute also applies when a project would result in constructive use which is substantial impairment when the proximity impacts of the project are so severe that the protected features or attributes of a resource would be substantially impaired. Next slide please. These are some examples of the kinds of impacts that are considered when evaluating whether constructive use would occur visual noise vibration and loss of access. Next slide please. There's an important exemption under section 4-F known as the de minimis exemption which applies when the project would involve a direct physical encroachment or taking but there's a consensus that it would not result in an adverse effect under section 106. So if there's a taking of a 10 foot strip of land for example to widen the road and it's part of a 100 acre historic farm it may be that everyone can pretty much agree that that's not an adverse effect on the historic farm. As a safeguard for historic properties it requires the written concurrence of the shippo. It's not enough to just wait 30 days and say well we have no response so we assume you consent. Next slide please. So if there's going to be a use under section 4-F the agency must evaluate whether there are feasible and prudent alternatives to avoid that use. The Supreme Court in the Overton Park case established the standard that feasible means can it be done as a matter of technical engineering which is virtually always the case and prudent means this is where the battles always are would the avoidance alternative involve unique or truly unusual problems or cost or community disruption of extraordinary magnitude. Next slide please. So unless the agency can show that a less harmful alternative is not feasible and prudent the agency must choose that least harmful alternative even if the harmful alternative costs a little more that doesn't necessarily mean that it's not feasible and prudent. Next slide please. And if there's no feasible and prudent avoidance alternative but multiple alternatives that would involve some degree of use of protected resources the agency must choose the least harmful option in order to satisfy the requirement for all possible planning to minimize harm. Next slide please. Now I'm going to shift gears and I'm going to talk about the Antiquities Act of 1906 this is the law that allows the president to designate national monuments on federal land but the aspect of the law that has sometimes been the subject of litigation is the requirement that the designation must be confined to the smallest area compatible with the proper care and management of the objects to be protected. Next slide please. We thought you would be interested to see some of these statistics about the use of the Antiquities Act over the years there have been about 160 total designations of national monuments but many of those have since been converted into full national parks. The law has been used by 17 different presidents about half republican and half democrat and there are a number of different agencies that manage the monuments but the large majority are managed by the National Park Service followed in second place by the Bureau of Land Management. Next slide please. One of the national monuments that has been in the news a lot in the last few years is the Bears Ears National Monument in southeastern Utah. It was designated in December 2016 by President Obama and then revoked one year later and replaced with two mini monuments by President Trump. There were three lawsuits filed challenging the Trump revocation. Next slide please. This map shows the comparison between the original national monument designated by President Obama and the mini monuments designated by President Trump to replace Bears Ears. Then last fall President Biden re-designated the Bears Ears National Monument on October 8th about a year ago and the latest development is that the state of Utah has filed suit to challenge the Biden re-designation. So stay tuned again. Lots going on in this arena. I will now pass the mic over to Kelly Fenizzo from the advisory council on historic preservation to discuss the more detailed the National Historic Preservation Act. Thank you. Thank you Betsy. That was a terrific update on all things historic preservation. I apologize. My screen is off because of the technical difficulties we were having earlier so I don't lose connection. I'm going to go with only audio for now. But again thank you all for your patience and we're happy to have you here. I am the deputy general counsel with the ACHP and I'm going to talk a little bit more about section 106, section 110F and a few recent legal developments in those areas. Next slide please. So you're probably all familiar with this language. This is the statutory text of section 106 that requires every federal agency prior to the approval of the expenditure of any federal funds on the undertaking or prior to the issuance of any license to take into account the effect of the undertaking on any historic property and afford the council a reasonable opportunity to comment. So next slide please. Through the regulations implementing section 106 we have established a four step process that agencies follow to fulfill that statutory requirement. This stems from the regulations at 36 CFR part 800 and it's important as Betsy noted similarly with NEPA section 106 is a procedural requirement does not include a substantive mandate. So agencies are required to follow these general steps to initiate the process, identify historic properties, determine if any of those historic properties have been affected or would be affected by the undertaking. Would those effects be adverse and if so consider ways to resolve the adverse effects of the undertaking. Next slide please. Another section in the National Historic Preservation Act 110F considers in particular national historic landmarks and here we see more of a substantive component to the federal agency review requirement. And this states that prior to the approval of any federal undertaking that may directly and adversely affect a national historic landmark the federal agency shall to the maximum extent possible undertake such planning and actions as as may be necessary to minimize harm to the landmark. There's general consensus in this context that the term adversely has the same meaning as it does in the regulations implementing section 106. But there's been considerable debate in recent years over the meaning of the term directly. And this debate has prompted disagreement among federal agencies and stakeholders regarding when section 110F applies to a proposed undertaking. We see this language about direct versus indirect also mirrored in the section 106 regulations at 36 CFR 800.5A1 that talks about when an adverse effect may be found directly or indirectly that would alter any of the characteristics of a historic property that qualify that property for inclusion on the national register. Next slide please. One of the recent cases some litigation that has dealt with this section of the law the National Parks Conservation Association case that we call it the James River case. The most recent decision came out in March 2019 when the DC Circuit Court issued its opinion concluding that the meaning of the term directly in section 110F refers to causality and not physicality of the effect. So just a little bit of background about this case the Virginia Electric and Power Company retired two coal-fired power generators and applied in 2013 for a permit from the Army Corps of Engineers to construct a new electrical switching station and two transmission lines. This would be supported by 17 transmission towers and the line would stretch for eight miles. Four of those miles would cross the James River and transect the historic district including Jamestown and other historic properties. So the Corps of Engineers was responsible not only for complying section 106 but also for NEPA for this project. The Corps prepared an environmental assessment under NEPA and developed a memorandum of agreement to resolve the adverse effects under section 106. The ACHP did sign the MOA and in doing so it issued formal comments to the Corps noting our concerns with the 106 process and the outcome. Related the Corps had determined that the project would not directly or adversely affect Carter's Grove National Historic Landmark and therefore section 110F did not apply. The Corps argued that because the project would not physically intrude on the plantations grounds rather several towers would be visible from the grounds there was no direct effect to the National Historic Landmark. However during the section 106 review process the ACHP and other consulting parties had stated that direct in the context of the NHPA meant having no intervening cause thus visual effects could be direct effects and section 110F should apply to this undertaking. So while the DC district court agreed with the Corps on appeal the circuit court found the Corps' position to be mistaken and it looked to the statutory language of the National Historic Preservation Act first and recognized that while section 110F clearly includes physical effects it is not limited to them. The court also noted that Congress could have easily restricted 110F's reach if it intended to do so by using the word physically instead of directly in the statute. So the court instructed the Corps of Engineers to reconsider its historic preservation analysis using the proper definition of directly. So while the National Park Service who has the responsibility under section 110 has not yet published any guidance directly on this point it is clear from the circuit court's opinion that directly in the National Historic Preservation Act refers to causation of the effect not its physical nature and this court decision clarifies when section 110F applies and will have implications for how agencies assess effects to National Historic landmarks. While it does not impact when section 106 would apply the advisory council believes it does instruct how effects should be categorized in the section 106 review process. So for many this would change the approach to defining effects based on physicality and recognized instances when direct effects may be visual, auditory or atmospheric. This clarification should inform an agency's efforts to determine areas of potential effects and consideration of how an undertaking may affect historic properties. Stemming from the litigation the Corps of Engineers is now working on its final EIS. We are not aware of any specific section 106 review being planned. The MOA is still in effect at this point. Next slide please. Another series of cases that have come up in the past few years including section 106 claims is the Bartell Ranch case that's coming out of the District Court of Nevada. Multiple decisions on a matter of different issues here I am going to focus on the plaintiff tribe's request for preliminary injunction in this case. So the plaintiff tribes here are the people of Red Mountain, the Reno Sparks Indian Colony and the Burns Paiute tribe. It's a consolidated case which challenges the Bureau of Land Management approval of Lithium Nevada's corporation, Lithium Nevada Corporation's plan to build a lithium mine near Thacker Pass in Nevada. This approval was granted via a January 2021 record of decision and the claim challenges that record of decision under the Administrative Procedure Act, NEPA, the Federal Land Policy and Management Act and the NHPA. So in concluding the 106 in this case the BLM did consult with other tribes including the Fort McDermott Paiute tribe, the Shoshone tribe, the Summit Lake Paiute tribe and the Winamukha Indian Colony. BLM admittedly did not engage in consultation about the project with the Reno Sparks Indian Colony or the Burns Paiute tribe before issuing the rod in 2021. So the tribes have sought a preliminary injunction requiring BLM to engage in further consultation under the NHPA with them before BLM or Lithium Nevada proceed with an archaeological survey of the project area. The tribes in this case in the request for the preliminary injunction questioned whether the Bureau of Land Management had made a reasonable and good faith effort to identify Indian tribes to invite to consult under Section 106. The district court found that BLM had made a reasonable and good faith effort and reasonably decided not to consult with these particular tribes. Largely the court relied on the tribes earlier disclaiming an interest in the area including the project area in discussions back in 2010 as part of an ethnography for a resource management plan for a lack of response to certain NAGPRA notices and a lack of response to public notices about the project. So the court denied the request for preliminary injunction. The parties are now operating under a post-review scenario. There was an MOA that was signed between the BLM and the SHPO in this case and because Thacker Pass is recognized by the parties as a site of significance to many tribes and further identification efforts are underway to detail some of those areas of significance. So that's a post-review scenario situation. Summary judgment oral arguments are still pending in this case. So this litigation is ongoing. Next slide please. So this case is a little bit different because while there is litigation that involved 106 the primary issue for the advisory council actually came from a council comment and the fact that this action is legislatively mandated. So a general plan of operations was to be approved by the Tonto National Forest for an underground copper mine. The application had been submitted by Resolution Copper on land that is currently administered by the forest, the Arizona State Land Department and private land owners. Part of this undertaking also includes the exchange of lands between Resolution Copper and the United States as directed by a statute. So back in 2014 President Obama signed into law the National Defense Authorization Act for fiscal year 2015 which directed the land exchange between the USDA and the Department of the Interior and Resolution Copper mining LLC for the purposes of extracting copper deposits known to be present in lands within the forest. Resolution Copper would receive over 2,000 acres of national forest system land known as the Oak Flat Federal Parcel in return for over 5,000 acres of private land owned by Resolution Copper. The land exchange would facilitate Resolution Copper's proposed copper mine by removing the Oak Flat parcel from federal ownership and thereby eliminating mining restrictions on that land. The Forest Service was responsible for carrying out the NEPA in the section 106 review for both the proposed Resolution Copper project and the Southeast Arizona land exchange. The NDA, the National Defense Authorization Act, did not modify the section 106 requirements for this undertaking. However, because the NDA required specific actions to be taken by the Forest Service, the parties to the section 106 review were unable to consider alternatives that would avoid all adverse effects to historic properties. Additionally, the NDA placed additional requirements on the Forest Service and Resolution Copper regarding consultation with Indian tribes and consideration of impacts on cultural and archaeological resources. These requirements are independent of the standard section 106 procedural requirements, which added further complexity to the consultation process. The parties were working on a programmatic agreement that was being negotiated under section 106 to comply with the law and the measures in the NDA. Through the course of consultation, the parties realized and identified Oak Flat as a historic property of religious and cultural significance to several Indian tribes. And it's been previously recognized as a site having physical and spiritual integrity essential to the continuation of traditional Western Apache cultural practices, particularly to the San Carlos Apache tribe. Oak Flat would be directly and permanently damaged with a substantial portion of the property being destroyed through the subsistence mining that was proposed in this project. Subsequently, the ACHP terminated consultation in February 2021 and issued Council comments to the Department of Agriculture. Bills have been made to repeal this portion of the NDA and withdraw Oak Flat from future disposal or mining, but so far no such law has been passed. I mentioned earlier litigation on this. One case, the San Carlos Apache tribe versus the Forest Service in the District Court of Arizona did include section 106 claims specifically regarding the consultation efforts and the late fieldwork and delays in processing and reporting. This case is currently stayed pending further review waiting on the publication of an FEIS and drafts broad from the Forest Service. There's another case that is not involving section 106, but instead challenging compliance under the Religious Freedom Restoration Act. This is the Apache stronghold versus the United States case. Currently, decision came out of the Ninth Circuit in October 2021 on that. The USDA has not yet responded to the ACHP's final comments that were issued last March, so that is still an outstanding part of the 106 process in this case. Next slide, please. The last case I'm going to talk about briefly today involves Solanex, the Holland. This case should probably sound familiar to many of you. Litigation has been percolating for some time. So the permit to drill for single exploratory oil and gas well would be placed on Forest Service lands, and the Forest Service has management responsibility for above-surface activities on its lands. The subsurface mineral rights at issue here are held managed by the Bureau of Land Management. So in accordance with the Mineral Leasing Act and onshore oil and gas orders, the Forest Service had lead responsibility for the environmental review of the permit for this action. However, the final decision on the permit rests with the BLM. The Forest Service would provide its recommendation on the permit to the BLM, and then the BLM would make the final decision. So Solanex proposed a single exploratory oil and gas well, which included a few miles of new road construction, road reconstruction, a temporary bridge across two medicine river, and a four-acre drill pad. Combined, this would be about up to 23 acres disturbed by the road and drill pad. Once constructed, the well would require periodic access and maintenance. And should the well-proof productive, it would be reasonably foreseeable that the applicant would apply for a permit to extend its drilling and extraction within the leasehold, a scenario known as the full field development. There's been a very lengthy and complicated environmental review and consultation history on this case, on the lease dating back to 1982. In 2015, the advisory council issued comments in response to the Tribal Preservation Officer terminating the section 106 consultation here. In our comments, we noted that if implemented the Solanex exploratory well, along with the reasonably foreseeable full field development, would be so damaging to the traditional cultural district that the Blackfeet's tribes' ability to practice their religious and cultural traditions in this area as a living part of their community life and development would be lost. The cumulative effects of full field development, even with the mitigation measures proposed by Solanex, would result in serious and upperable degradation of the historic values of the traditional cultural district that sustained the tribe. If necessary, the Secretary of the Interior in coordination with the Secretary of Agriculture should seek authorizations from Congress to withdraw or cancel the Solanex lease. Solanex, which Longwell created nearly 20 years ago to hold the oil and gas lease, sued the U.S. government back in 2013 seeking to restore its long suspended approval to drill on over 6,000 acres in the Northwest. Litigation has been ongoing since that time. In the most recent case, the District Court of the District of Columbia vacated the Secretary's March 2016 decision to rescind the lease and disapprove the application for the permit to drill and remanded it to the Secretary of the Interior to reinstate the lease, and they previously approved approval application for the permit to drill. Because the court provided a significant discussion of Section 106 issues, the ACHP is currently considering how best we might respond. So with that, I'm now going to turn it over to Chris Cody. I think he may provide some more updates about Section 106 as well as other issues. Thank you. Well, good afternoon, everyone. My name is Chris Cody, and I'm Associate General Counsel for the National Trust. And today I'll first briefly discuss program alternatives, which are an aspect of the National Historic Preservation Act in Section 106. And then I'll highlight some of the common and emerging issues with local preservation ordinances that the National Trust Law Division has been involved with over the last year. Next slide. First, program alternatives are a way for federal agencies to achieve compliance with the NHPA without engaging in the standard Section 106 consultation process. Program alternatives are approved by the ACHP and they supplant normal Section 106 processes for the included actions and resources. They are useful tools for repetitive maintenance actions and for dealing with large numbers of similar historic resources. But their scopes can be shockingly massive, both in terms of the sheer number of resources affected and in some cases, because of the range of actions allowed by them without further consultation. So there are five types of program alternatives, programmatic agreements, exemptions, standard treatments, program comments, and alternate procedures. Of these types, the National Trust engages most frequently and significantly with programmatic agreements and program comments. There are several programmatic agreements and program comments that the National Trust is currently engaged in consultation for, and there are others that we have heard are in the process of being developed. As you can see from the list on this slide, these are not minor federal agencies seeking these alternatives. Rather, they are some of the largest property holding entities within the federal government and they control very significant historic resources. Next slide please. I mentioned that program comments are one of the two types of program alternatives that the National Trust most commonly engages with. A current example is the Army's program comment for Army Vietnam War era housing from 1963 to 1975. This program comment affects 7,519 Army historic Army housing units and will be voted on by the ACHP next week. Troublingly, its scope of actions currently includes demolition, cessation of maintenance, and new construction, which the National Trust is opposed to. Another example of our current work in this area are two programmatic agreements that we've consulted on over the last year. First, NASA is seeking a programmatic agreement for all of their facilities. Now, this is a very interesting PA, which is what we call in shorthand for programmatic agreements. It's very interesting PA both because NASA is inherently very cool and because as NASA stated during our first meeting, NASA literally makes new history every day doing things that humanity has never done before, which makes the preservation of the places where that is actively happening a very interesting question. Second, the United States Postal Service is currently developing a PA for their historic resources. USPS has lots of historic post offices, many of which they've had to deaccession in recent years as demand for mail services shrunk. Lastly, next week the ACHP will also be voting on an exemption for projects supporting electric vehicles. This includes things like charging stations and other infrastructure. Exemptions are exactly what they sound like, exemptions from section 106. So this is just a current snapshot of the typical work of the National Trust Law Division in the area of program alternatives. I hope that it's been informative. Next slide please. Moving on to our next topic. One of the most important functions of the law division is to serve as a nationwide legal resource for the preservation movement. In that capacity, we regularly receive phone calls and emails from all over the country asking for our help with local preservation matters. Over the past year, several common issues and themes have presented themselves as we've worked to provide that assistance. First, the question of whether or not historic preservation ordinances are zoning ordinances has once again risen to the fore. Some of you may recall that the National Trust recently participated in a case, Powell versus the City of Houston, where we argued that the City of Houston's historic preservation ordinance was not a zoning ordinance. Houston famously prohibited zoning laws, so had their historic preservation ordinance been found to be a zoning ordinance, it would have been problematic. This year, however, the National Trust provided assistance to the City of Milwaukee in their case against the University of Wisconsin Board of Regents, in that instance arguing that Milwaukee's historic preservation ordinance was a zoning ordinance. This juxtaposition really brings this issue into focus. Depending on what jurisdiction you're in, and depending on the exact construction of your local and state laws, your local historic preservation ordinance could either be or not be a zoning law, and its status as such can be very impactful. Second, the National Trust has continued to see an increase in state legislation that preempts local land use regulation authority. For several years, short-term rental proponents have sought, and in some states enacted, state laws that prohibit the regulation of short-term rentals. More recently, a wave of legislation aimed at creating more affordable housing has been proposed and enacted across the country, much of it similarly preempting local land use management authority. For example, in California, SB9 allows for the buy-right subdivision of any single family parcel into two lots, and it allows for the construction of two units of housing on any one single family lot. Also in California, AB2011 allows for the buy-right conversion of commercially zoned properties into affordable housing. Importantly, both of these California bills contain exceptions for historic districts and for historic properties. These exceptions are essential, otherwise these types of state preemption laws can be very damaging to historic communities. Watch out for them in your states. Next, we're regularly contacted by the public concerning issues related to demolition by neglect. This is a persistent, pernicious, and nationwide problem. We strongly encourage communities to enact demolition by neglect ordinances to prevent it from happening, and we also encourage historic preservation commissions to be active in referring neglected historic properties to building code enforcement departments. This is an issue that has many solutions, but all of them require communities to marshal the will to hold negligent property owners accountable. Finally, and with an exclamation point, lack of designation. So, so many of the local issues brought to our attention begin with a resource that is not appropriately locally designated and protected. For example, the building on this slide is the Chancery Building in Spokane, Washington, a lovely historic building that is listed on the National Register, but that was never locally designated and protected. The National Trust was contacted this past year to assist in opposing its demolition, and while the Chancery Building has fortunately not been demolished to date, this problem would never have happened had it been properly locally designated and enjoyed appropriate protections from demolition. Versions of this story are repeated across the country, so please designate and protect your community's historic resources. Next slide, please. Now, I'd like to provide you with a very, very brief overview of best practices for local historic preservation ordinances and associated design review guidelines. One way that I like to think about local historic preservation ordinances and design review guidelines is in terms of generations. The oldest first generation of preservation ordinances are, by today's legal standard, overly vague. You know, a lot of them date from as early as the 1930s, really through the 1980s. They have broad, nonspecific language. They can really be as short as one sentence and often just provides very limited, vague criteria like ensure compatibility. If you have an ordinance from this generation in your community, it needs to be updated. The second generation of historic preservation ordinances existed well into the 21st century and they represent a significant improvement. This generation of ordinances includes detailed written guidelines and references to a specific local context. And these types of ordinances are far better than generation one, but today the best practice is to be in the third generation of ordinances. These ordinances include even more detailed written guidelines, even more references to specific local contexts. And importantly, all vague language is removed and they provide tools and examples to help the public. The ultimate goal is for any member of the public, the ultimate goal of these guidelines in your ordinance is for any member of the public, anywhere in the world to be able to read your community's historic preservation ordinance and guidelines and know exactly how their application will be evaluated and what types of applications will be approved. The goal is to make this as easy as possible for the public to understand because you want the best possible applications brought before your design review boards and historic preservation commissions. Detailed ordinances and guidelines and tools beyond mere text are very important for accomplishing this goal. For example, next slide please. Here is the table of contents for a well-developed historic preservation ordinance and accompanying guidelines. Now this is from the town of Williams, Arizona near the Grand Canyon that only has a population of about 3,200 people. Even for a town that size, look at how developed their ordinance and guidelines are. Just this past year, the Law Division has worked with major cities that have ordinances that fall far short of this standard. Next slide please. To further help the public, every architectural term and feature represented in the text of Williams's ordinance and guidelines is accompanied by contextual photos from the town. Next slide please. There's no way that you can read Williams's ordinance and guidelines and look at these photos and not have a good idea as to what is required for approval and what specific design elements are appropriate for the historic context of Williams. Next slide please. Now this is an example of another tool from Charleston, South Carolina where instead of using photographs, drawings were used to model acceptable massing plans for large-scale infill projects. Again, this helps architects understand exactly what the city is most willing to approve before they have to appear before a design review board. Next slide please. Lastly, this is another tool from Charleston to help the public. It has sliding scales, easier to approve, harder to approve. Things like tall versus short ceiling heights, easier versus harder to approve. Natural versus composite materials. They're all spelled out not as definitive criteria but rather as an overall matrix that comprehensively communicates to the public what project attributes will likely lead to approval versus rejection and all of this in an easily understandable format. Now if you have any questions about any of what I've discussed today or generally about your community's local historic preservation ordinances, please don't hesitate to contact the National Trust Law Division and your local state historic preservation is also an excellent resource on this topic especially if your community is a certified local government. So with that thank you very much everyone and I now like to turn it over to my colleague Ross Bradford. Thank you Chris. My name is Ross Bradford. I'm Deputy General Counsel of the National Trust and in the remaining time we have I'm going to go over a few issues related to conservation and preservation easements that you should be aware of. Next slide. The first issue is syndication of conservation and preservation easements. This practice has been around for several years and has received a great deal of scrutiny from the press IRS and Congress in particular that the Senate Finance Committee's 151 page report on the issue and the IRS has noticed regarding these transactions. While easement syndication in and of itself is permitted by the Code and Treasury regulations there are some actors in this arena that are using these transactions to entice investors into deals with the expectation of exponential returns. But like most of the controversy in the easement donation world overinflated easement valuations are the main issue and cause for concern. Next slide. These transactions have generated billions in dollars in charitable deductions for only a handful of deals and you'll note a number of press pieces in the next couple of slides that highlight these issues. Next slide. And while most of these transactions involve conservation easements there are instances where preservation easements have been challenged as well. So with a lot of these issues in the syndication world most of it's related to conservation easements but some limited areas are related to preservation easements. Next slide. The scrutiny in this area will only likely continue to increase given the influx of enforcement funds the IRS will receive under the Inflation Reduction Act. Next slide. And conservation and preservation groups are focusing on a legislative solution to curb these abuses under the charitable conservation program integrity act. This legislation aims to put caps and collars on the amount of these deductions along with imposing holding periods on these transactions. And while the legislation has been finalized it's closer than ever to becoming law and we expect to see something soon. The final area I wanted to touch on which isn't noted in my slides concerns a recent circuit court split between the sixth and eleventh circuits regarding the interpretation of the protected and perpetuity requirement of the code and associated treasury regulations and compliance with the Administrative Procedures Act all of which is a mouth full and there's a lot in that it packed in there. But in essence these circuits disagree regarding whether the IRS complied with the APA and a few weeks ago submitted a cert petition to the Supreme Court appealing the sixth circuit's decision and several commentators believe the court may be interested in resolving this issue. And an issue in these cases is the IRS's interpretation of the regulations and the position that under a judicial extinguishment the value of improvements made to a property protected by an easement should not be subtracted out when determining an easing holder share of the proceeds. And so you're going to see a couple links in the comments related to these cases and a few media links that kind of give you some background on this case. But this is an important area to look at because for folks out there that are doing easement transactions especially tax motivated ones the proceeds language in your easements your former templates you need to look closely at that and how these two cases the Oak Brook land holdings case and the Hewitt case may impact your the deductibility of those easements in those parts of the country. And with that I'm going to turn it back over to Rhonda for some questions and answers and to wrap up the session. Thanks. Great everybody if you have questions for our panelists is put them in the chat. I'm looking through here I see a question for Chris about the name of the community with the detailed design guidelines. Chris if you could come back on screen and remind us what community that was. Sure that community is Williams Arizona. It's a great town right by the Grand Canyon. Great and do you also have a link to the local guidelines that you mentioned I think Elaine might be able to put them in the chat for folks if you can pass them along. Sure I'd encourage folks that are interested to reach out to the law division we have many examples from many different states of very strong local ordinances and we can help find one that'll be most helpful to you. Thanks. Any other questions from the audience or questions amongst the panelists if you all want to join back in quickly. I'm not seeing any questions from the audience. Do we have any questions of each other from the panelists. All right well we might close out then. I'm going to thank everyone for joining and especially thank you for your patience while we had some technical difficulties. As I mentioned before this session is being recorded and it will be available at a later date so be on the lookout for the full recording and please join us next week for our third and final pass forward workshop federal advocacy positioning historic preservation policy for the future and that will be next Tuesday October 25th at two o'clock p.m. Eastern. So with that thank you all and we hope to see you again.