Current Issues in Historic Preservation

Proposed Amendments to the National Historic Preservation Act

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How would changes to the National Historic Preservation Act affect you? By amending the core historic preservation regulations - Section 106 of the NHPA - your voice, your participation in the federal government's decision-making process is threatened. By law, you have a voice when federal actions may impact resources that are listed in, or eligible for listing in, the National Register of Historic Places. Against this backdrop, the "discussion draft" bill which proposed changes to the NHPA was particularly troubling. If the NHPA was amended to provide protection only for those resources listed in the National Register, countless resources could have been lost.

This question is best answered by Anthony Gardner, an Executive Board Member of the Coalition of 9/11 Families, in a April 18, 2005, letter to Representative Devin Nunes (R-CA), the Chairman of the National Parks Subcommittee of the House of Representatives:

"I can assure you that had it not been for the requirement that 'eligible' properties be included in evaluating the effects of those projects on historic resources, the remains of the Twin Towers, most especially the physical remains that delineate the twin tower footprints at bedrock would have continued to be ignored and would have been completely destroyed. . . . The existing Section 106 process is far from perfect, but it has afforded the Coalition an opportunity to be heard and have input into the design of Port Authority's proposed facility. The original World Trade Center was not listed on the National Register. . . . It was only the requirement that "eligible" properties be identified that caused the redevelopers of the World Trade Center site to consider our concerns. If only properties listed on the National Register had been considered during the Section 106 process, not only the Coalition, but every citizen who believes that September 11 was a transcendently significant event in our nation's history would have suffered irreparable harm."

What is Section 106?

Section 106 is a section of the National Historic Preservation Act (NHPA) that requires that federal agencies take into account the effects that their projects may have on historic resources.

Section 106 of the NHPA provides for successful preservation outcomes while allowing for other goals to be reached. At its most basic, Section 106 is a requirement that federal agencies weigh what they do, fund, or permit against the effects of those actions on historic properties. Congress did not create Section 106 as a mandate to preserve, but rather as a decision-making tool that prevents the federal government from destroying the nation’s heritage without thinking first. This ensures that private property owners and other affected parties are not unduly harmed by federal activities without first having an opportunity to have some say in the matter. It does not mean that the project will not occur, just that some thought must go into it. This is the limit of Section 106. It is also its strength.

What is the National Register of Historic Places?

The National Register of Historic Places is the nation's official list of cultural resources worthy of preservation. It is part of a national program to coordinate and support public and private efforts to identify, evaluate, and protect our historic and archeological resources. Resources listed in the National Register include districts, sites, buildings, structures, and objects that are significant in American history, architecture, archeology, engineering, and culture.

State Historic Preservation Offices (SHPOs) have worked for almost 40 years to identify and nominate to the National Register of Historic Places significant buildings, structures, objects, sites, and districts that tell the story of our nation’s prehistory and history. However, only a small percentage of our nation's cultural resources have been listed on the National Register. Many significant resources, already known and yet tobe discovered, are worthy of National Register designation.

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The "Discussion Draft" Bill

Essential elements of the National Historic Preservation Act (NHPA) were being questioned in a "discussion draft" bill which was circulated within the House of Representatives Resources Subcommittee on National Parks in April 2005. The changes were connected with the pending reauthorization of offshore oil lease revenues to support the HPF.

Summary of Sections from the "Discussion Draft" Bill

Section 2
An amendment within the "discussion draft" bill altered Section 101(a)(6)of the NHPA, which regards property owner participation in the National Register of Historic Places nomination process. Language changes to this provision would have meant that if a property owner objected to listing in the National Register, the National Register nomination process would conclude. Existing law allows for nominations to be forwarded to the Secretary of the Interior for a formal determination of eligibility.

Section 3
The "discussion draft" bill also altered Section 101(c)(1)of the NHPA by requiring certified local governments to ensure that any local designation process fully provide for due process - local governments that propose to use National Register eligibility determinations to trigger local regulatory requirements would be required to hold a separate hearing to provide for due process. The concern for considering the rights of private property owners in the National Register of Historic Places nomination process emerged with a case in Los Angeles, California when a property owner found his redevelopment proposal possibly subject to local regulatory restrictions because the property was being nominated to the National Register. Click here for more information on this particular issue.

Section 4
Section 4 drastically altered the preservation protections found in Section 106 of the NHPA. Section 4 shifted the responsibility of documentation and analysis away from those seeking federal funding for projects to the stewards of historic resources - State Historic Preservation Offices (SHPOs) and other interested parties. The proposed change significantly limited what is currently given consideration under Section 106. In the draft bill, only resources that are listed on the National Register of Historic Places or those that have been formally determined eligible for listing by the Secretary of the Interior would be considered under Section 106. These limitations would have significantly impacted tribal historic resources, most of which are not listed or formally designated.

Limiting the scope of Section 106 by making it applicable only to properties that are already listed in the National Register or formally determined eligible for listing by the Secretary of the Interior, would halt the consideration of the effects that fedral projects may have on an overwhelming majority of our nation’s historic resources.

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Latest News

National preservation partners coordinated a response to the "discusssion draft" bill. Click here for a copy of the letter signed by NCSHPO, Preservation Action, the National Trust for Historic Preservation, the Society for Historical Archaeology, the American Cultural Resources Association, the American Institute of Architects, and the National Association of Tribal Historic Preservation Officers which was delivered to Representatives Devin Nunes (R-CA) and Donna Christensen (D-VI) on April 18, 2005, opposing any amendments to the NHPA that would substantially weaken the current law.

An oversight hearing on the proposed changes to the NHPA was held on April 21, 2005 before the Subcommittee on National Parks.. Six witnesses were called to testify:

On April 22, 2005, Jay D. Vogt, the President of NCSHPO and the Director of the South Dakota Historical Society submitted written testimony to the Subcommittee on National Parks. Click here to read the testimony.

Despite the above efforts to amend the NHPA, Representative Nick Rahall (D-WV) introduced H.R. 3446 on July 26, 2005. The bill simply extended the authorization of deposits into the HPF until 2011 and did not include any of the substantive changes to Section 106 that were recommended in the “discussion draft” bill.

On July 26, 2006 the House of Representatives Resources Committee approved H.R.5861, an amended bill that replaced the earlier-introduced H.R. 3446. H.R. 5861 reauthorized deposits into the HPF until 2015. National Parks Subcommittee Chairman, Representative Stevan Pearce (R-NM), introduced H.R.5861 after considerable engagement with the historic preservation community.

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