Historic Preservation Law

1
Historic Preservation Law
2
Protecting Historic Resources from Government
Action
Federal Preservation Laws
3
National Historic Preservation Act (NHPA)
4
(No Transcript)
5

• Basic Features of NHPA
• National Register listing
• Grants, HPF (Historic Preservation Fund),
  CLGs, etc.
• Section 106
• Federal Agency Stewardship. Federal agency
  responsibility under Section 110

Federal Laws NHPA
6
(No Transcript)
7
National Register of Historic Places WHO?
Maintained by the Secretary of the Interior
through the National Park Service WHY? Honors
the property by recognizing its importance
Consideration when it comes to planning Federal,
Federally licensed and Federally assisted
projects Eligibility for certain tax
provisions Qualifications of Federal
grants HOW? State Historic Preservation Office
Role (SHPO) Application goes to the National Park
Service (NPS) HOW OLD? Property has to be at
least 50 yrs old. If less, property must be
exceptionally important HOW LONG? Minimum of 90
days for review and notification. Upon submission
to NPS, as decision on whether to list the
property is made within 45 days.
8

• Identifying Historic Properties
• National Register of Historic Places eligible
  or listed
• districts, sites, buildings, structures,
  objects significant in American history,
  architecture, archeology, engineering culture
• Criteria for evaluation
• Integrity possess integrity of location,
  design, setting, materials, workmanship, feeling,
  and association, and fit at least one of the
  following criteria
• a. History associated with events that have
  made a significant contribution to the broad
  patterns of our history
• b. Persons associated with the lives of persons
  significant in our past (e.g., birthplace or
  home of a historical figure)
• c. Architecture embody the distinctive
  characteristics of a type, period, or method of
  construction, or that represent the work of a
  master, or possess high artistic values, or
  represent a significant and distinguishable
  entity whose components may lack individual
  distinction
• d. Archeology, with no in-place significance
  have yielded, or may be likely to yield,
  information important to prehistory or history.

9

• Identifying Historic Properties
• Criteria considerations
• Ordinarily some properties would not be
  considered eligible for the National Register.
  However, such properties will qualify if they are
  integral parts of the districts that meet the
  criteria, or they fall within the following
  categories
• a. Religious Property deriving primary
  significance from architectural or artistic
  distinction or historical importance
• b. Building/Structure moved from original locale
  significant primarily for architectural value
• c. Birthplace or Grave historical figure of
  outstanding importance if there is no other
  appropriate site or bldg associated with his
  productive life
• d. Cemetery significance from persons of
  transcendence importance, from architecture, from
  association with historic events
• e. Reconstructed Building Part of Restoration
  Master Plan and its the only bldg or structure
  with the same association that has survived
• f. Property Commemorative in Intent if design,
  age, tradition, or symbolic value has invested it
  with its own historical significance
• g. Property Achieving Significance within last 50
  years if it is of exceptional importance.

10
Section 106 16 U.S.C. 470f
The head of any federal agency having direct or
indirect jurisdiction over a proposed federal or
federally assisted undertaking shall, prior to
the approval of the expenditure of federal funds
on the undertaking or prior to the issuance of
any license, take into account the effect of the
undertaking on any historic property that is
included in or eligible for inclusion in the
National Register.
Federal Laws Section 106
11

• Federal Agency
• SHPO / THPO
• Advisory Council on Historic Preservation
• Local governments, Indian Tribes Native
  Hawaiian Organizations
• Applicants for federal grants, permits,
  licenses
• Legal or economic relationship to affected
  properties
• Parties concerned with effects on historic
  properties

Federal Laws Section 106
12

• Common Issues and Questions
• What is an undertaking?
• When does Section 106 kick in?
• How are adverse effects defined?
• How seriously does an agency have to consider
  alternatives and mitigation?
• Standing?

Federal Laws Section 106
13
?
?
?
?
?
?
?
?
?
?
?
14

• Recent and Current Section 106
  Cases
• TWA Terminal
• Athens Generating Plant
• Governors Island

Federal Laws Section 106
15
(No Transcript)
16
(No Transcript)
17
(No Transcript)
18
(No Transcript)
19
Section 110 16 U.S.C. 470h
Federal agencies responsibility to preserve and
use historic properties. The heads of all
Federal agencies shall assume responsibility for
the preservation of historic properties which are
owned or controlled by such agency Each agency
shall undertake, consistent with the preservation
of such properties any preservation as may be
necessary.
Federal Laws Section 110
20
(No Transcript)
21
(No Transcript)
22
National Environmental Policy Act (NEPA)
23
NEPA 42 U.S.C. 4321-4347
Federal Laws NEPA
To the fullest extent possible all agencies of
the Federal Government shall include in every
major Federal action significantly affecting the
quality of the human environment, a detailed
statement by the responsible official on the
environmental impact of the proposed action,
including any adverse environmental effects that
cannot be avoided and any alternatives to the
proposed action.
24
Section 4(f) of the Department of Transportation
Act
25
Section 4(f) 49 U.S.C. 303
The Secretary may approve a transportation
program or project, requiring the use of publicly
owned land of a public park or land of an
historic site only if- (1) There is no prudent
and feasible alternative to using that land,
and (2) The program or project includes all
possible planning to minimize harm to the park
or historic site resulting from the use.
Federal Laws Section 4(f)
26

• What is Use?
• What is Constructive Use?
• Feasible prudent alternative?

Federal Laws Section 4(f)
27
(No Transcript)
28
FEDERAL HISTORIC PRESERVATION LAWS AT A GLANCE

Revised 2004 Compare National Mining Assn v.
Slater, 167 F. Supp.2d 265 (D.D.C. Sept. 19,
2001)(ruling that SHPO/ACHP veto pf agency effect
determinations is impermissible substantive),
with Sayler Park Village Council v. U.S.Army
Corps of Engrs, 2002 WL 32191511 (S.D. Ohio Dec.
30, 2002), 2003 WL 22423202 (Jan. 17, 2003)(SHPO
veto of agency effect determination was not
impermissibly substantive). See also
www.achp.gov/news-interimguidance.html for ACHPs
interim guidance on this issue.
29
(No Transcript)