National Historic Preservation Act (NHPA)
Reproduced from Archaeological Method and Theory: An Encyclopedia, edited by Linda Ellis, Garland Publishing Co., New York and London, 2000.
Francis P. McManamon

The National Historic Preservation Act (Public Law 89-665 and amendments thereto; 16 U.S.C. 470 et seq.) was enacted in 1966. It has had major amendments, primarily additions to expand the effect of the law or to clarify its implementation, in 1980 and 1992. The law contains a strong policy statement supporting historic preservation activities and programs. Section 2 of the statute calls for the Federal government

in partnership with States, local governments, Indian tribes, and private organizations and individuals to...use measures, including financial and technical assistance, to foster conditions under which our modern society and our prehistoric and historic resources can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations (Section 2 (1)).

This subsection of the statute highlights two important aspects of historic preservation national policy in the United States. First, historic preservation, including public archeology and archeological preservation, is an activity that occurs at all levels of government, Federal, State, and local, and that also involves private organizations and individuals. It is not the provence of a single national government agency or national museum. This multitude of involved public and private parties can sometimes make a comprehensive description of archeological and historic preservation in the United States complicated, but it also has the value of giving many organizations and individuals some responsibility for preserving archeological and historic sites, structures, and other kinds of historic properties.

Another key aspect of United States preservation embodied by this subsection text is that preservation is to be considered as one aspect of modern life, that is, contemporary development and economic activities. This can be seen as a double-edged sword. Archeological and historic properties often must be considered when plans are made for modern development or economic activity, however, their preservation is not an assured part of the outcome of these activities.

Title I of the statute established the National Register of Historic Places as a national listing of "historic properties", that is, districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, engineering, and culture. The statutory language and the regulations and procedures that implement the National Register of Historic Places have been written to include historic and prehistoric archeological sites within the definition of "historic properties". This inclusive approach and broad definition have enabled those concerned with public archeology and archeological preservation to work within the general umbrella of the national historic preservation program.

Title I also expanded the level of Federal concern to include the preservation of historic properties of local or State significance, an expansion of the concern with nationally significant resources expressed in the 1935 Historic Sites Act. This title also established State Historic Preservation Officers as partners in the national historic preservation program. It also describes how the SHPO function, or portions of this function, can be assumed by local governments or Indian tribes in certain circumstances.

Section 106 of the statute also is contained in Title I. Implementation of this short, one-paragraph long section has had a major impact on the structure and functioning of archeology and archeological preservation in the United States. Section 106 requires that all Federal agencies provide the Advisory Council on Historic Preservation, which is established in Title II of the statute, an opportunity to comment on any undertaking for which an agency has direct or indirect jurisdiction when the undertaking has an effect on a historic property listed on or eligible for listing on the National Register of Historic Places. In practice this has meant that Federal agencies, or State, local, and private organizations that are involved in Federal undertakings, have been required to identify and assess archeological sites that their planned actions might affect. This has required tens of thousands of archeological investigations since the mid-1970s when the procedures for implementing Section 106 were established in regulations (36 CFR 800). These investigations have been undertaken in a variety of ways. In some cases, Federal agencies responsible for complying with the NHPA have hired archeologists, creating their own professional staffs to meet these requirements. In other cases, Federal agencies have contracted with consulting firms or with universities to undertake studies necessary to meet their requirements.

Over the past 20 years, one result has been that professional archeologists have come to be employed as frequently by public agencies or private consulting and engineering firms as by academic institutions. During this period, hundreds of millions of dollars in government funds have paid for tens of thousands of archeological investigations, including general archeological overviews, site discovery and evaluation studies, and extensive excavation of individual or groups of sites that would have been subject to destruction by public undertakings (e.g., see McManamon, et al. 1993).

The statute also envisions that all Federal agencies should develop their own programs to care for historic resources under their jurisdiction or control, or that are affected by their undertakings. Section 110, which was expanded and enhanced by the 1992 amendments, describes the responsibilities as including the identification, evaluation, nomination to the National Register of Historic Places, and protection of historic resources. In the past, agencies have been far more active in complying with Section 106 of the statute than with Section 110. Perhaps the newly amended text of this section will provoke greater attention to the responsibilities that it describes.

Title II of the statute establishes the Advisory Council on Historic Preservation, an independent Federal agency composed of 20 members, including the Secretaries of Interior and Agriculture and four other departments. Also on the Council are elected officials and citizens appointed by the President. The Council and its staff play an important role in the national historic preservation program, especially in the day-to-day implementation of Section 106, but also in providing programmatic advice to Federal agencies and training in historic preservation methods, techniques, and procedures.

Title IV of the statute, newly added in the 1992 amendments, established the National Center for Preservation Technology and Training. In so doing, Congress recognized "...the complexity of technical problems encountered in preserving historic properties and the lack of adequate distribution of technical information to preserve such properties (Section 401)." The Center was established to "...coordinate and promote research [in historic preservation], distribute information, and provide training about preservation skills and technologies...(Section 401)."

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