National Historic Preservation Act under attack

The National Historic Preservation Act is an important federal law that among its provisions requires that federal undertakings include a review process (Section 106) that requires a review of the possible impact on cultural resources, defined as those properties and places eligible for listing on the National Register of Historic Places. The National Environmental Protection Act (Council for Environmental Quality) and the Department of Transportation Act of 1966 (Section 4(f)) have similar provisions.

While these laws are not perfect, and can be gamed (witness what is happening at the moment with the review of the Intercounty Connector project in Maryland), the Section 106 process in particular is a useful tool that preservationists are able to utilize to better protect historic properties and to mitigate negative impacts of federal undertakings.

These laws are a result of the anti-freeway and anti-urban renewal activism of the 1960s and 1970s, when citizens in places like Greenwich Village (NYC), Washington DC (all over, but especially in Brookland and Upper Northeast), and the French Quarter of New Orleans successfully fought efforts to pave over their neighborhoods with federal highways. (The Greenwich Village and French Quarter efforts are discussed in The Living City by Roberta Gratz.)

Graphic from a poster from the Emergency Committee on the Transportation Crisis, the 1960s and 1970s anti-freeway activist group from Washington DC and the inner Maryland suburbs.

On the Preservation Forum elist we have been alerted to efforts to gut this law. (The road construction lobby has been pushing a similar effort, for some time, to gut the 4(f) provisions of Federal Transportation undertakings.)

For DC residents, since we don't have Congressional representation, we need to talk to our friends and colleagues that work for Congress, and get them engaged on this, and represent the pro-preservation pro-citizen protection position.

From Chris McMorris--

I was surprised that no one mentioned the proposed amendments to the National Historic Preservation Act under consideration. Tom Wheaton reported on this proposal on the ACRA listserve. He says that the House Resources Subcommittee on National Parks, chaired by Rep. Nunes of California, is proposing amendments to Section 106 of the NHPA and that only properties listed or formally determined eligible by the Secretary of the Interior would be considered in the Section 106 review process. The Subcommittee is holding hearings on this on April 21.

I read the proposed amendments (available through the ACRA website) and the language change is deceivingly minor, but could be very detrimental to protecting historic resources that might be affected by federal undertakings. If enacted, I'm not sure how this would work. This change would likely shift the burden of identifying what is historically significant from federal agencies to local preservationists or state/local governments. Of course, nominations can be costly and are time consuming. Many could not be prepared in time to be taken into account for a specific federal undertaking. It might also mean that federal agencies would have to nominate all potentially eligible resources for listing in the National Register in order to comply with Section 106, which would presumably be far more costly to tax payers. Either way, this change would result in loss of important historic resources during federal undertakings because, as we all know, not everything that is significant is listed in or has been determined eligible for listing in the National Register.

Alan Downer responds:

Thanks to McMorris for the first post on this important issue. McMorris highlights some critical problems, but the problems run far deeper. It not simply a matter of potentially shifting the burden of identification of historic properties away from the federal agency, which is plenty bad enough. Pombo's amendments would prohibit the Secretary from formally determining eligible any property if the owner objects. So, it would effectively prohibit consideration of properties in the section 106 process unless the owner agrees to listing (which is already required) or agrees to allow formal determination of eligibility.

What Pombo is proposing would be the first substantive rollback of federal consideration and protection of historic properties since 1966. Pombo has been kicking this idea around for at least a year now, so it is difficult to believe that the problems have not been brought to his or his staff's attention -- nothing in it draft is there by mistake.

For those who have not seen it yet or can't access acra, the draft that is circulating follows.

[DISCUSSION DRAFT]

Section 1. SHORT TITLE.This Act may be cited as the “National Historic Preservation ActAmendments of 2005.

"SEC. 2. OWNER PARTICIPATION IN NOMINATION PROCESS.

(a) Effect of Objection. Section 101(a)(6) of the National HistoricPreservation Act (16 U.S.C. 70a(a)(6)) is amended by striking “, such property” in the second sentence and all that follows through the and of the third sentence and inserting the following: “, no further processing of the nomination, including making any determination regarding the eligibility of the property or district for such inclusion or designation, shall be undertaken until the objection is withdrawn.”

(b) Regulations.—The regulations required by section 101(a)(6) of the National Historic Preservation Act (16 U. S. C. 470a(a)(6)), as amended by subsection (a), shall be promulgated in final form not later than one year after the date of the enactment of this Act.

SEC.3. ADDITIONAL CRITERIA FOR CERTIFICATION OF LOCAL GOVERNMENTS TO CARRY OUT NATIONAL HISTORIC PRESERVATION ACT.

Section 101(c)(1) of the National Historic Preservation Act (16 U. S. C.470a(c)

(1))is amended--(1) by striking “and at the end of subparagraph (D);

(2) by redesignating subparagraph (E) as sub-paragraph (F);

(3) by inserting after subparagraph (D) the following new subparagraph:

“(E) agrees, if the local government intends to use an eligibility determination regarding inclusion of property on the National Register to trigger local regulatory requirements, to also provide full due process protection to the owner of the property through a separate hearing process; and”; and

(4) in the matter below the subparagraphs, by striking “through (E)”and inserting “through (F)”.

SEC. 4. CONSIDERATION OF EFFECT OF FEDERAL UNDERTAKINGS

Section 106 of the National Historic Preservation Act (16 U. S. C. 470f) is amended by striking “or eligible for inclusion in” and inserting “, or determined by the Secretary to be eligible for inclusion in,”.

SEC. 5. HISTORIC PRESERVATION FUND.

Section 108 of the National Historic Preservation Act (16 U. S. C. 470h) is amended by striking “2006" and inserting “2012".

SEC 6. ADVISORY COUNCIL ON HISTORIC PRESERVATION.

(a) Membership.--section 201 of the National Historic Preservation Act(16 U. s.c. 470i) Is Amended.--

(1) in subsection (a)(4), by striking “four” and inserting “seven”;

(2) in subsection (b), by striking “(5) and (6)” and inserting“paragraph (6)”; and

(3) in subsection (f), by striking “Nine” and inserting “Eleven”.

(b) Financial and Administrative services.- Section 205(f) of such Act (16 U.S.C 470m(f)) is amended to read as follows:

“(f) Financial and administrative services (including those related to budgeting, accounting, financial reporting, personnel and procurement) shall be provided the Council by the Department of the Interior or, at the discretion of the Council, such other agency or private entity that reaches and agreement with the Council, for which payments shall be made in advance or by reimbursement from funds of the Council in such amounts as may be agreed upon by the Chairman of the Council and head of the agency or, in the case of a private entity, the authorized representative of the private entity thatwill provide the services. When a Federal agency affords such services, the regulations of that agency for the collection of indebtedness of personnel resulting from erroneous payments, prescribed under section5514(b) of title 5, United States Code, shall apply to the collection of erroneous payments made to or on behalf of a Council employee, and regulations of that agency for the administrative control of funds undersections 1513(d) and 1514 of title 31, United States Code, shall apply to appropriations of the Council. The Council shall not be required to prescribe such regulations.”

(c) Donation Authority.-section 205(g) of Such Act (16 U.s.c. 470m(g))Is Amended.--

(1) by striking “obtain,” and inserting “solicit and obtain,”; and

(2) by striking “may also receive” and inserting “may also solicit and receive”.

(d) Authorization of Appropriations.-Section 212(a) of such Act (16U.S.C. 470t(a)) is amended by striking “in each fiscal year 1997 through 205" and inserting “forfiscal year 2006, $5,000,000 for each of the fiscal years 2007 and 2008, and $6,000,000 for each of the fiscal years 2009 through 2012".

SEC. 7. EFFECTIVENESS OF FEDERAL GRANT AND ASSISTANCE PROGRAMS IN MEETING PURPOSES AND POLICIES OF THE NATIONAL HISTORIC PRESERVATION ACT

The National Historic Preservation Act is amended by inserting aftersection 215 (16 U.S.C. 470v-1) the following new section:

SEC.216. EFFECTIVENESS OF FEDERAL GRANT AND ASSISTANT PROGRAMS.“

(a) Cooperative Agreements.--The Council may enter into a cooperative agreement with any Federal agency that administers a grant or assistance program for the purpose of improving the effectiveness of the administration of such program in meeting the purposes and policies of this Act. Such cooperative agreements may include provisions that modify the selection criteria fora grant or assistance program to further the purposes of this Act or that allow the Council to participate in the selection of recipients, if such provisions are not inconsistent with the statutory authorization and purpose of the grant assistance program.

“(b) Review of Grant and Assistance Programs.--the Council may.--“

(1) review the operation of any Federal grant or assistance program to evaluate the effectiveness of such program in meeting the purposes and policies of this Act;

“(2) make recommendations to the head of the Federal agency that administers the grant or assistance program to further the consistence of the program with the purposes and policies of this Act and to improve the effectiveness of the grant or assistance program in carrying out those purposes and policies; and

“(3) make recommendations to the President and the Congress regarding the effectiveness of Federal grant and assistance programs in meeting the purposes and policies of this Act, including recommendations with regard to appropriate funding levels.”