Federal Historic Preservation Case Law, 1966-1996

II. The National Historic Preservation Act

A. Purpose and Structure

The National Historic Preservation Act expresses a general policy of supporting and encouraging the preservation of prehistoric and historic resources for present and future generations, directing Federal agencies to assume responsibility for considering such resources in their activities. {14} NHPA does not mandate preservation of such resources but requires Federal agencies to consider the impact of their actions on historic properties. The statute sets forth a multifaceted preservation scheme to accomplish these policies and mandates at the State and Federal levels.

The act first authorizes the Secretary of the Interior to expand and maintain a National Register of Historic Places, {15} an inventory of districts, sites, buildings, structures, and objects significant on a national, State, or local level in American history, architecture, archeology, engineering, and culture. It is up to the Secretary to list properties in the National Register and to determine the eligibility of properties for listing using published criteria and procedures. {16} Listing in the Register qualifies a property for Federal grants, {17} loans, {18} and tax incentives. {19}

Second, NHPA encourages State and local preservation programs. States may prepare and submit to the Secretary of the Interior programs for historic preservation, which the Secretary must approve if they provide for the designation of a State Historic Preservation Officer (SHPO) to administer the State preservation program; establish a State historic preservation review board; and provide for adequate public participation in the State program. {20} The SHPO must identify and inventory historic properties in the State; nominate eligible properties to the National Register; prepare and implement a statewide historic preservation plan; serve as a liaison with Federal agencies on preservation matters; and provide public information, education, and technical assistance. {21}

Although the organization of the State programs and the actual roles of the SHPOs may differ from State to State, the provisions of NHPA have influenced States' administrative structures. For example, most State governments now undertake comprehensive survey and planning activities and retain professional staff with preservation expertise to oversee State activities affecting historic properties. Many States have certified local governments to carry out preservation activities{22} and, since NHPA was amended in 1992, Indian tribes may now assume all or part of the functions of a SHPO with respect to tribal lands. {23}

NHPA also authorizes a grant program, supported by the Historic Preservation Fund, to provide monies to States for historic preservation projects and to individuals for the preservation of properties listed in the National Register. {24} The grant program provides for two categories of grants: one for survey and planning purposes, which provides essential financial support for administering each State program; the other for "bricks and mortar" preservation or rehabilitation of historic properties. States and other grant recipients must match the Federal funds. Through the Historic Preservation Fund, in 1995 the Federal Government gave States $30,940 million to carry out preservation-related activities. {25}

Finally, NHPA established the Advisory Council on Historic Preservation, which is now an independent Federal agency. {26} Composed of 20 members from both the public and private sectors, {27} the Council employs a professional staff trained in many aspects of preservation. Council members include the Secretaries of the Interior and Agriculture and four other Federal agency heads designated by the President; the Architect of the Capitol; four members of the general public; a Native American or Native Hawaiian; four historic preservation experts; one governor; and one mayor, all appointed by the President. The chairman of the National Trust for Historic Preservation and the president of the National Conference of State Historic Preservation Officers serve as ex officio members. {28} NHPA directs the Council to advise the President and Congress on historic preservation matters, review the policies and programs of Federal agencies to improve their consistency with the purposes of the act, conduct training and educational programs, and encourage public interest in preservation. {29} Most importantly, the act places the Council in the central role of administering and participating in the preservation review process established by Section106. {30}

B. Legislative History

The act has been amended several times since its inception in 1966, each time strengthening and clarifying various aspects of the law. Significant amendments occurred first in 1976 when Congress established the Historic Preservation Fund as the source of matching grants to States and to the National Trust for Historic Preservation to carry out historic preservation activities. {31} The 1976 amendments also extended the application of Section 106 to include properties eligible for listing on the National Register, not just those already listed. Of great importance to the Council, the 1976 amendments rendered it an independent Federal agency; previously, it had been staffed and supported through the National Park Service.

NHPA changed significantly again in 1980 when Congress added Section 110, which directed Federal agencies to assume more responsibility for the stewardship and protection of historic properties they owned or controlled. {32} The 1980 amendments also better articulated the duties of SHPOs, provided for the certification of local government preservation programs and for local government participation in National Register nominations and the Section 106 process itself. The Council's duties were expanded as well to include the evaluation of Federal agencies' historic preservation programs.

Congress amended NHPA most recently in 1992, {33} providing a greater role for Native Americans and Native Hawaiians in Federal and State preservation programs, {34} requiring Federal agencies to establish their own internal procedures to incorporate historic preservation planning into agency programs, {35} and obligating Federal agencies to withhold Federal assistance in cases of anticipatory demolition. {36} The amendments also set forth more specific measures to withhold confidential information about the location of historic properties, {37} specify the responsibilities of Federal agencies that receive formal comment from the Council, {38} and clarify several key terms, among them "undertaking," "State," and "Indian tribe." {39} Although the 1992 amendments did not directly amend the language of Section 106 of NHPA, the new provisions significantly affect the Section 106 compliance process.

C. Key Statutory Provisions: Sections 106 and 110

1. Section 106

The Council's most significant involvement in the Federal preservation process is through Section 106 of NHPA. {40} Section 106 provides that:

The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under Title II of this Act a reasonable opportunity to comment with regard to such undertaking. {41}
Section 106 requires each Federal agency{42} to do two things prior to carrying out, approving financial assistance to, or issuing a permit for a project that may affect properties listed or eligible for listing in the National Register of Historic Places. First, the agency must consider the impact of the project on historic properties. Second, the agency must seek the Council's comments on the project. Section 106 originally applied only to properties actually listed in the National Register; however, in 1976, Congress extended its provisions to properties not yet listed but still meeting the criteria. {43} Much of the Council's daily work involves commenting in response to agency requests under Section 106. {44} To administer these requests under the authority granted by Congress, {45} the Council has issued regulations to govern agencies' compliance with Section 106. {46} These regulations set forth procedures, known as the "Section 106 process" that explain how Federal agencies must take into account the effects of their actions on historic properties and how the Council will comment on those actions. {47}

2. Section 110

Section 110 of NHPA governs Federal agency programs by providing for consideration of historic preservation in the management of properties under Federal ownership or control. Originally a codification of Executive Order No. 11593, Section 110 established special preservation responsibilities for Federal agencies with an emphasis on property management activities. {48} Section 110 does not replace or invalidate Executive Order No. 11593, but rather supplements it.

As passed in 1980, Section 110 established procedures for Federal agencies managing or controlling property. Among other things, agencies must assume responsibility for the preservation of historic properties under their jurisdiction and, to the maximum extent feasible, use historic properties available to the agency. {49} Additionally, Federal agencies were directed to carry out their programs and projects in accordance with the purposes of NHPA. {50} Further, Section 110(f) requires that, prior to the approval of any Federal undertaking that may directly and adversely affect any National Historic Landmark, {51} agencies must undertake such planning and action as may be necessary to minimize harm to the landmark and obtain Council comments on the undertaking. {52} The review required by Section 110(f) is similar to that required under Section 106 but involves a higher standard of care. Generally, Section 110(f) review is accomplished under the Council's procedures implementing Section 106.

The 1992 amendments to NHPA added greater Federal agency responsibility for consideration of historic properties during agency decisionmaking. {53} The amended Section 110 requires each Federal agency to establish a historic preservation program. The program must provide for the identification and protection of the agency's historic properties; ensure that such properties are maintained and managed with due consideration for preservation of their historic values; and contain procedures to implement Section 106, which must be consistent with the Council's regulations. {54} Specifically, the amendments explain that such procedures must provide a process for the identification and evaluation of historic properties for listing in the National Register and the development of agreements in consultation with SHPOs, local governments, Native Americans and Native Hawaiians and the interested public. {55}

Congress also added a new provision that directs Federal agencies to withhold grants, licenses, approvals, or other assistance to applicants who intentionally significantly and adversely affect historic properties. {56} This provision, known as the "anticipatory demolition" section, is designed to prevent applicants from destroying historic properties prior to seeking Federal assistance in an effort to avoid the Section 106 process. Finally, the 1992 amendments to Section 110 add the responsibility that the head of a Federal agency, without delegation, must document any decision under Section 106 where a Memorandum of Agreement has not been executed. This provision ensures a high level of Federal agency review where there is a failure to reach an agreement and, thus, strengthens the incentives for agencies to sign MOA. {57} The amendments also codified a provision of the Council's regulations stating that an MOA will govern implementation of the undertaking in a binding manner{58}

The Secretary of the Interior, in consultation with the Advisory Council, is responsible for developing guidelines to implement the requirements of Section 110 of the act. {59} The Council and the National Park Service jointly issued guidelines in 1989{60} and new guidelines are under development to address the 1992 amendments to NHPA.

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