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}
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.
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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