Using the National Historic Preservation Act of 1966

It is widely accepted that the National Historic Preservation Act (NHPA) was the most comprehensive and sweeping historic preservation legislation passed by Congress. No law before or since has been as integral to the protection of the nation’s heritage and historic properties.

The NHPA set into place a comprehensive national historic preservation program and clearly defined a broad policy, process and network of partnerships. The Act also tasked the federal government with a range of roles and responsibilities, primarily providing leadership, encouragement, and assistance to other entities. Of all federal agencies assuming these new mandates, the National Park Service (NPS) was tasked with the greatest share of preservation responsibilities defined in the NHPA.

The NHPA also “expanded” a National Register of Historic Places, a list (administered by the NPS) composed of districts, sites, buildings, structures and objects significant in American history, architecture, archeology, engineering and culture. This “expansion” of the National Register now included recognition of historic places of state and local significance as well as those found to possess national significance—previously consisting only of designated National Historic Landmarks (NHLs) and historical park units of the NPS—now embracing a more far-reaching and inclusive list of historic properties across the country.

For those concerned about historic preservation in the years prior to the NHPA, the most common means to ensure identification, recognition and interpretation of America’s history and culture occurred by identifying, saving and marking individual buildings and sites (i.e, museums and “historic shrines”); under NHPA, a more holistic perspective arose, where the environmental and cultural context became more important. This led to an increased recognition of areas and resources such as historic districts in cities and communities, designed, rural and tribal landscapes, traditional cultural properties, places of aesthetic and environmental importance, and thousands of local landmarks. This concept of a “New Preservation,” as it was coined by the NPS soon after enactment of the NHPA, was intended as a means to recognize the importance of places and areas to be preserved “as a living part of our community life and development” that would foster a “legacy of cultural, educational, aesthetic, inspirational, economic and energy benefits.”

Section 106, Section 110, and protection of NHLs

Now that you have a little background on the importance and legacy of the NHPA, what was provided in the Act to assist you with a means to protect historic properties in your community? Moreover, what tools does the NHPA provide regarding the protection of National Historic Landmarks (NHLs)? There are two sections of the Act that provide direct enforcement of federal agency responsibilities with regard to consideration and protection of historic properties: Sections 106 and 110. You may be familiar with Section 106—a defined process that mandates federal agency responsibility for any actions on federal property that could affect historic places, and also projects funded with federal money that have the potential to impact historic places on non-federal property, which includes the majority of NHLs.
Color photo of a tan building with towers and narrow red windows.
Northwestern Branch of National Home for Disabled Volunteer Soldiers NHL, Hospital Building (1867), Clement J. Zablocki VA Medical Center, Milwaukee, Wisconsin. As a result of its NHL status, Section 110(f) led to an ongoing Section 106 consultation because this VA is an active medical facility.

National Park Service

Essentially, Section 106 provides for a consideration of historic preservation concerns as agencies go through project planning and decision-making. The language of this section is defined and discussed in regulations issued by the Advisory Council on Historic Preservation (ACHP, or Council), which can be found in 36 CFR Part 800, “Protection of Historic Properties” (http://www.achp.gov/work106.html). The regulations are very thorough and quite honestly, can be a bit perplexing for the uninitiated, so the ACHP has also provided: “Protecting Historic Properties: A Citizens Guide to Section 106 Review,” found at: http://www.achp.gov/docs/CitizenGuide.pdf that are designed more for the lay audience.
It’s not the intent of this article to go into depth about the 106 process; rather, to provide awareness of its intent and how it, combined with an additional section in the NHPA, can provide a means of involvement, discussion and consideration—what the regulations refer to as “consultation”—as a way to protect NHLs and other historic properties.

Through Section 106, federal agencies that approve, fund, assist, license, or permit any type of projects that may have adverse effects on historic properties, are required to consult with the State Historic Preservation Office (SHPO) and other parties that have an interest in the project’s effects. As the regulations by the ACHP state, “the views of the public are essential to informed Federal decision-making in the Section 106 process. The agency official shall seek and consider the views of the public in a manner that reflects the nature and complexity of the undertaking (project)…” Although Federal agencies are required to consult with SHPOs throughout the 106 process, there are also multiple opportunities for your voice to be heard if you stay aware and gain recognition as a “consulting party”—in other words, getting a seat at the table.

The ACHP regulations define “consulting parties” as those individuals and organizations with a “demonstrated interest” in a particular project—as an owner or steward of an NHL, you certainly would have a legitimate concern about any federal project that could have an impact on the NHL. It’s very important that you keep an eye out for agency’s announcements of project plans, and if those plans could affect the NHL. (NHLs are automatically listed in the National Register and thus 106 applies to federal projects that could affect them). Keep in touch with your NPS regional contact person, the SHPO, state preservation organizations, local sources for dissemination of information, pertinent websites, local meetings, word of mouth, etc.—all means of monitoring potential federal projects. Keep abreast, and get involved early! Write to or call the agency, let them know your concerns and request consulting party status. Your valuable input will not be as useful if it comes too late to influence the agency’s decision when it has reached its appropriate and documented resolution. You have a voice and the agency has to take your views seriously.

Section 106 and the ACHP regulations provide the basic process for agencies to follow in the protection of historic properties and the legal basis for your involvement and input; equally important is Section 110(f) of the NHPA, which is similar to Section 106 in intent, but focuses specifically on NHLs. Congress added this section through amendments to the NHPA in 1980 to afford greater acknowledgement of the special nature and importance of NHLs. Section 110(f) established a higher standard of care and protection when considering projects that may directly and adversely affect NHLs. Agencies shall, “to the maximum extent possible, undertake such planning and action as may be necessary to minimize harm” to NHLs. If, through the process of consultation, it is felt that a project directly and adversely affects an NHL, the agency should consider all prudent and feasible alternatives to avoid the adverse effect and seek a preservation outcome.

Generally, Section 110(f) review is accomplished under the Council’s procedures implementing Section 106. In practice, the intent is for the ACHP to be involved in consultation when there may be a direct and adverse effect (use of the word “may” indicates there is a fairly broad interpretation of what this could mean). Keep in mind the ACHP has the discretion to decide whether or not it will enter the Section 106 process, but if the project involves an NHL where there’s likely going to be an adverse effect, or there’s disagreement about that, it is highly probable the ACHP will get involved to some degree and provide comment. Projects having “substantial” impacts on NHLs are listed first in the ACHP’s criteria for likely involvement.

The previously mentioned ACHP regulations, 36 CFR Part 800, “Protection of Historic Properties,” provide more detail regarding the intent of section 110(f). Section 800.10 of these regulations reiterates the language of section 110(f), directs the agency to seek comments from the ACHP, and—importantly—requires the agency to notify the Secretary of the Interior (in reality, this means your NHL contact with the NPS). Bottom line: participation by the ACHP and the NPS is critical and necessary when an NHL is affected, and their additional involvement augments the gathering of information, consideration of effects and consultation required through the Section 106 process. The views of the NPS are very important in consideration of potential threats to an NHL.

How can the NPS help? In a number of ways: primarily to assist in determining how the agency’s project may affect the NHL, and to offer our views to both the agency and the ACHP. Your NPS contact with the NHL Program has access to a wide source of relevant information, including the NHL nomination, background files, sources that include mapping location, established boundaries, significance, integrity, condition, contributing resources, etc. This is the type of information the agency needs to know about in determining if the project could alter any of the characteristics that led to the designation of the NHL. This, combined with your input, the SHPO, and other concerned groups or individuals, is extremely important information for the agency to be aware of. Remember, the agency initiating the project is ultimately responsible for completion of Section 106 review and appropriate consideration of and response to Section 110(f).

Regarding the language “… any federal undertaking (project) which may directly and adversely affect an NHL…”—in reality this can come about in any number of potential situations and scenarios. Adverse effects are types of threats which could cause a diminishment of the NHL’s integrity. The ACHP provides a range of examples of potential adverse effects (but keep in mind this list is not exhaustive; effective consultation can identify others):
  • Physical destruction or damage
  • Alterations that are not consistent with Secretary of the Interior’s Standards for the Treatment of Historic Properties
  • Removal or relocation of the property
  • Change in the property’s use or features within the setting that could change its historic character
  • Introduction of visual, atmospheric, or audible elements that diminish the property’s historic integrity
  • Neglect resulting in deterioration
As mentioned, there are other examples of possible adverse effects, and your NPS contact can assist in determining what those might be. The bottom line is to use the intent behind the 106 process to work together and retain the high integrity of the NHL. Keep in mind: neither Section 106 nor Section 110(f) mandate a preservation outcome; the agency can decide to proceed with the project as long as their responsibilities regarding the 106 process and 110(f) “higher standards of care” requirement are fully met. Section 106 does encourage consideration of preservation values and seeks agreed-upon, compromise solutions; to accommodate and balance historic preservation concerns with project needs of federal agencies. Your knowledge and awareness of the language and intent behind these sections of the NHPA can help influence a positive outcome.
Originally published in "Exceptional Places" Vol. 10, 2015, a newsletter of the Division of Cultural Resources, Midwest Region. Written by Geoffrey Burt.