Why is the National Park Service Helping the Administration Evade the Law?

The National Park Service’s (NPS) stated mission is to preserve natural and cultural resources; however, it’s not properly doing its job and that’s one big reason for the Reflecting Pool lawsuit filed by The Cultural Landscape Foundation (TCLF). NPS is an important and beloved institution entrusted with the care and management of the National Mall in Washington, D.C., and treasured cultural landscapes across the nation. However, in an absolutely astonishing legal filing regarding the Reflecting Pool, NPS officials admitted they deliberately bent the rules under pressure from “White House leadership” to get the job done quickly. More on that below.

And that’s not the worst part. NPS’ failure extends to proposed projects that could fundamentally alter the National Mall and Monumental Core including plopping a 250-foot-tall Triumphal Arch between the Lincoln Memorial and Arlington National Cemetery, the destruction of picturesque parkland to make space for a National Garden of American Heroes in West Potomac Park, inserting a high-end golf course into East Potomac Park, and currently doing who knows what to Lafayette Park (across from the White House).

This is not a “one-off” problem involving the Reflecting Pool, it’s systemic.

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Here’s the wonky part and why it matters.

All these national parks are listed in the National Register of Historic Places and changes and/or alterations to them (generally beyond maintenance) legally require a review under Section 106 of the National Historic Preservation Act. The purpose of a Section 106 review is to identify whether a project, say the introduction of a 250-foot-tall arch, would have any negative physical and/or visual impacts (or what the feds call “adverse effects”), and would lay out what measures the stewards are taking to avoid, minimize, and mitigate them.

A major benefit of this review is that “consulting parties,” such as the state historic preservation office (SHPO) and subject area experts, have an opportunity to provide insight and offer specific suggestions for how to avoid, minimize, and mitigate adverse impacts. This process can positively affect a project’s overall design while safeguarding what makes these landscapes significant. For projects in D.C.’s Monumental Core the Section 106 review usually takes place before projects go for reviews by the U.S. Commission of Fine Arts (CFA) and the National Capital Planning Commission (NCPC), and any ground is broken.

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NPS is required to initiate the Section 106 process—to their credit they are currently doing this with the proposed White House Visitor Center in Sherman Park, just south of the Treasury building. So why are they sitting on their hands with all these other projects?

In the case of the Reflecting Pool, NPS improperly used a “streamlined” Section 106 review. As noted in TCLF’s filing, which ultimately cites the administration’s own filing:

The streamlined review process is reserved for routine projects that do not change the historic features of a property, which the ongoing painting plainly does. The Court need not take Plaintiffs’ word for it. It can look to the documents Defendants submitted to the Court. Defendants’ own documents state that they knew the repainting was not eligible for streamlined review. Instead, Defendants are willfully violating the law because they felt political pressure from “White House leadership” to operate on a lightning-fast timeline.

Because the passage is so damning, we reproduce it in full:

While normally not eligible for Streamlined Review due to the change to an epoxy coating, given the direction provided by [National Park Service], [Department of the Interior], and White House leadership coupled with the timeline required to complete compliance, there is no option other than to select Streamlined Review. No Streamlined Activity clearly aligns with this undertaking . . . . Consultation with the DC [State Historic Preservation Office] would probably result in non-concurrence with an agency official proposed finding of No Adverse Effect. Significant and timely consultation would be required to reach consensus with the SHPO of a No Adverse Effect finding based on the historic precedent of tinting the pool bottom. [emphasis added]

Let’s recap. Painting the Reflecting Pool with an “epoxy coating” is “normally not eligible for Streamlined Review.” However, under pressure from “White House leadership” and the need to complete the work by July 4th, “there is no option other than to select Streamlined Review”—i.e., NPS officials knew a “Streamlined Review” was inappropriate, but they did it anyway. In addition, they expected the DC SHPO would disagree with NPS’ determination that the epoxy coating would have “No Adverse Effect,” but they did not want to engage in “significant and timely consultation” with the SHPO on the matter.

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In the case of last month’s CFA review of the Triumphal Arch,  the commission gave the project final design approval (remarkably, without seeing any final design), information will be sent to Section 106 consulting parties on June 5, but no public meetings have been scheduled. And plans and a pledge agreement for a National Garden of American Heroes at West Potomac and a high-end golf course at East Potomac Park are already being circulated, yet Section 106 reviews have not been initiated. Finally, the proposed work at Lafayette Park, which is already underway, has not been submitted to the CFA or NCPC; a Section 106 process has been initiated, but no public meetings have been scheduled.

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The outcome of this haphazard approach to reviews is predictable—chaos replete with gross distortions, fake indignation and real insults, and administration officials proclaiming, “we should all be grateful.” TCLF and other local and national organizations faced just such opprobrium for opposing the siting of the Obama Presidential Center in Chicago’s Frederick Law Olmsted, Sr.-designed Jackson Park. But at least in that case, there was a commitment to the Section 106 review process.

The capital’s Monumental Core is the result of Pierre Charles L'Enfant's plan of 1791, which was reaffirmed by the McMillan Plan of 1902 that birthed what is widely recognized as the definitive and highly influential masterpiece of the American "City Beautiful" movement. To ensure the future of this unique built legacy, NPS must do its job and not ignore, slow walk, and distort the very review process it is required to uphold.

NPS’ evasion of the law is no way to honor the 250th anniversary of our democracy.