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The National Historic Preservation Act and The National Park Service: A History





Getting (Re)Organized

Expanding the Register

Aiding Preservation

current topic Protecting Properties

An Appraisal

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

Appendix F


The National Historic Preservation Act and The National Park Service: A History
Protecting Properties
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Among the most frequently cited rationales for passage of the National Historic Preservation Act was the destruction of historic resources wrought by urban renewal, highway construction, water impoundments, and other projects reshaping the landscape in the postwar period. A major purpose of identifying and registering historic properties was to enable them to be considered by federal agencies in their project planning.

The requirement for such consideration was specified in Section 106 of the 1966 act:

The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under title II of this Act a reasonable opportunity to comment with regard to such undertaking.

The act established the Advisory Council with 17 members: the secretaries of the Interior, Housing and Urban Development, Commerce, and Treasury; the attorney general; the administrator of the General Services Administration; the chairman of the National Trust for Historic Preservation; and 10 persons appointed by the President from outside the federal government. Amendments to the act subsequently enlarged and altered the Council's membership. Its current composition, specified in the 1980 amendments, may be seen in the amended version of the act reproduced in the appendix.

The language of Section 106 was amended once, in 1976, to direct agencies to consider the effects of their undertakings on properties eligible for the National Register as well as those actually listed (see page 39) But the responsibility and authority granted by the provision remained quite limited.

In the first place, Section 106 applied only to federal undertakings. It had no bearing on actions by state and local governments and private organizations and individuals that were not supported or approved by the federal government. Broader application would have gone contrary to the American federal system, which reserves control over other-than-federal land use to the states and their political subdivisions. It was also interpreted to apply only where federal involvement in an undertaking was subject to agency discretion. When an agency disbursed block grants to state or local governments for a range of functions and had no role in deciding the particular projects or activities to be carried out with this aid, for example, the projects could proceed without reference to Section 106.

In the second place, agencies needed only to "take into account" the effects of their undertakings on historic properties. They did not have to refrain from damaging or destroying them. The absence of any positive requirement for protection contrasted with Section 4(f) of the Department of Transportation Act—approved the same day as the National Historic Preservation Act—which forbade the Secretary of Transportation from approving "any program or project which requires the use of any land from a...historic site unless (1) there is no feasible and prudent alternative...and (2) such program includes all possible planning to minimize harm to such...historic site resulting from such use." [1]

In the third place, the Advisory Council was to be afforded only "a reasonable opportunity to comment" on agency undertakings. It had no authority to enjoin or regulate them.

On its face, then, this key protective provision of the 1966 act appeared bootless, neither encouraging agencies to preserve or spare historic properties nor requiring more than perfunctory procedural compliance. When its content was viewed in its context, however, its thrust was clear. The preamble to the act was a positive call for preservation. The duties of the Advisory Council specified in the act indicated that the Council was expected to play an advocacy role for preservation. The Senate committee report on the version of the bill subsequently passed by the Senate said of Section 106, "It is intended to insure that the Federal agencies will not work at cross purposes with the goals of historic preservation and provides for a meaningful review of Federal or federally assisted projects...." [2] Thus, although the provision did not mandate preservation, it sought to insure that agencies would no longer act with disregard for this national objective.

Section 106 would clearly not be self-enforcing. Compliance would require the awareness and cooperation of all federal agencies whose activities had the potential to affect historic sites, and it would require establishment of a procedural mechanism to handle a potentially enormous volume of agency requests for comment.

The National Park Service took immediate steps to involve other agencies in its planning to implement the 1966 act. A representative of the Federal Highway Administration attended the first meeting of Bob Utley's task force on November 22. This agency, attached to the new Department of Transportation, needed to be informed of historic sites so that it could consider them under Section 4(f) of the DOT act as well as Section 106. The Department of Housing and Urban Development was another early collaborator, represented by Dwight F. Rettie, director of its Division of Land Development. Rettie, who later moved to the Park Service, served with notable influence as the HUD secretary's initial designee on the Advisory Council.

Following consultation with the Park Service, the National Trust, and other interested parties, the White House announced the 10 citizen appointments to the Council on March 1, 1967. Among them were S. K. Stevens, director of the Pennsylvania Historical and Museum Commission, appointed chairman; Albert Rains, who had chaired the Special Committee on Historic Preservation that produced With Heritage So Rich; Lawrence Halperin, San Francisco landscape architect; Christopher Tunnard, professor of city planning at Yale; Russell W. Fridley, director of the Minnesota Historical Society; and Elizabeth Stevenson Ives, a North Carolina preservationist and sister of Adlai E. Stevenson. The Council met twice that year but considered no Section 106 cases.

It was immediately apparent that case review and comment would be largely a staff function. A body assembling a few times a year was ill suited to consider any substantial number of cases in a timely fashion. During 1967 Executive Secretary Bob Garvey and OAHP staff handled consultations on 16 agency undertakings whose effects on Register properties were minimal or readily mitigated. Knowing the importance of precedent, Garvey wanted to establish an early record of successful staff-level negotiation and reserve involvement of the Council itself for cases representing major issues that also appeared capable of satisfactory resolution.

The Council considered the first such case at its third meeting, in February 1968. The agency was the Department of Health, Education, and Welfare; its undertaking was approval of a grant requested by Georgetown University for construction of a heating plant in the Georgetown Historic District of Washington, D.C., a national historic landmark. The Council commented that the location originally proposed for the plant would have had an adverse effect on the district but that the alternate location chosen since was acceptable. [3]

That May the Council met in Albany, New York, on the second case brought before it. The Atomic Energy Commission proposed to license a nuclear generating plant near Saratoga National Historical Park, a National Park System area in the National Register. Although the plant would have no physical impact on the historic battlefield, the Council found that it would cause an adverse visual impact and recommended denial of the license. [4] Faced with this and other opposition, the Niagara Mohawk Power Corporation subsequently decided to build elsewhere.

The most important early case to reach the Council concerned the landmark Vieux Carré Historic District in New Orleans. The Federal Highway Administration had approved initial plans for a riverfront expressway through the district in January 1966, nine months before enactment of the National Historic Preservation Act. More detailed planning and funding decisions remained to be made, however, causing the Council to assert jurisdiction over the undertaking. Meeting on the case in early 1969, it found that the expressway would have a substantial adverse effect on the historic character of the district. That summer Secretary of Transportation John A. Volpe decided not to approve funds for the project, citing its effect on the district and the excessive cost of depressing the road to mitigate the adversity. [5]

The Vieux Carré expressway case set the precedent for Council involvement even when an undertaking might have originated before the 1966 act, as long as the responsible agency retained discretion in proceeding with it, and it addressed a major project in a prominent locale. "That was the first big success of the Advisory Council...," Ernest Connally said later. "Volpe made that courageous decision, and that did more to set the Council on the right track and to show that it had influence and integrity than anything." [6]

There were failures too, of course. A developer obtained a federally guaranteed loan for a 12-story apartment building in the landmark Savannah Historic District notwithstanding the Council's objections. The Council failed to thwart an intrusive observation tower adjoining Gettysburg National Military Park, constructed after the Park Service granted access to it over park land to induce its builder to abandon an even more prominent spot. During the first six years more than 400 undertakings underwent staff review, but many more that should have been referred for consideration were not. [7]

Only 26 of these went to the Council itself. The remainder were handled by OAHP staff acting on behalf of the Council, in accordance with procedures published with the first publication of the National Register in the February 25, 1969, Federal Register. The introduction to the procedures made clear that the Council expected to comment "in only the most complex situations." The procedures thus placed the major burden of consultation with agencies on OAHP, involving the state liaison officers in the process as well.

First, agencies were asked to consult the National Register to see whether any listed properties might be affected by their undertakings. They were then to apply the "criteria for effect," which defined "effect" as occurring "when any condition of the undertaking creates a change in the quality of the historical, architectural, archeological, or cultural character that qualified the property...for listing in the National Register." Adverse effect could result from "(a) Destruction or alteration of all or part of a property; (b) Isolation from or alteration of its surrounding environment; (c) Introduction of visual, audible, or atmospheric elements that are out of character with the property and its setting." [8]

If an agency determined that there was no effect, it could proceed with the undertaking. If it found an effect, it was to consult with OAHP and the SLO to decide whether the effect was adverse. If it was not, the undertaking could proceed. If it was, the parties were to "select and agree upon a prudent and feasible alternative to remove the adverse effect," enabling the undertaking to proceed. The Council was to be notified and given an opportunity to comment only if the parties could not agree upon such an alternative. It retained discretion over whether it would in fact comment. It also announced its intention "to exert its advisory prerogatives by commenting to agencies in certain special situations even though written notice of effect has not been received." [9]

The slow initial progress of National Register nominations hampered the effectiveness of the Advisory Council and Section 106. Agencies could ignore the great mass of properties that were clearly eligible for the Register but had not yet been listed. As noted previously (pages 37-39), Executive Order 11593 of May 13, 1971, and the 1976 amendments to the National Historic Preservation Act included provisions to plug this protection gap by requiring agencies to identify and nominate apparently eligible properties under their jurisdictions and giving those found eligible the same review consideration as listed properties.

Executive Order 11593 also elaborated on federal agency responsibilities for preservation in much more explicit and positive terms than had the 1966 act. Section 1 was a strong policy statement:

The Federal Government shall provide leadership in preserving, restoring, and maintaining the historic and cultural environment of the Nation. Agencies of the executive branch...shall (1) administer the cultural properties under their control in a spirit of stewardship and trusteeship for future generations, (2) initiate measures necessary to direct their policies, plans and programs in such a way that federally owned sites, structures, and objects of historical, architectural or archaeological significance are preserved, restored and maintained for the inspiration and benefit of the people, and (3) in consultation with the Advisory Council on Historic Preservation..., institute procedures to assure that Federal plans and programs contribute to the preservation and enhancement of non-federally owned sites, structures and objects of historical, architectural or archaeological significance.

Section 3 of the executive order set forth responsibilities of the Secretary of the Interior (in effect, the Park Service). He was to assist agencies with their property surveys and nominations; expedite action on nominations of properties proposed for sale, transfer, demolition, or substantial alteration; and develop and disseminate to agencies "information concerning professional methods and techniques for preserving, improving, restoring and maintaining historic properties," among other duties.

The executive order was largely superseded by the 1980 amendments to the National Historic Preservation Act. A new Section 110 of the act specified federal agency responsibilities for identifying and nominating properties to the National Register, using available historic buildings, carrying out their programs in accordance with the purposes of the act, and "to the maximum extent possible, undertak[ing] such planning and actions as may be necessary to minimize harm" to national historic landmarks. Other new provisions included one enabling agencies to lease out historic properties under their jurisdictions for purposes consistent with their preservation and retain the proceeds to defray the costs of their maintenance. By 1986 the Park Service had used this authority to lease out 10 structures whose lessees made improvements valued at some $4.4 million.

The executive order and 1980 amendments further stimulated the Service's development and issuance of preservation standards, guidelines, and technical information. The amendments directed the Secretary of the Interior to promulgate guidelines for agency responsibilities under Section 110 and professional standards for the preservation of historic properties in federal ownership. Incorporating material developed previously in other contexts, the "Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation" was published in the Federal Register on September 29, 1983, and "Guidelines for Historic and Archeological Resource Management: Federal Agency Responsibilities Under Section 110 of the National Historic Preservation Act" was published in draft form on March 10, 1986.

Expanding on its initial procedures, the Advisory Council published progressively more detailed procedures in the February 28, 1973, and January 25, 1974, issues of the Federal Register. The 1974 version was given added force by being formalized as regulations. It addressed agency compliance with pertinent portions of Executive Order 11593, and it added two more criteria of adverse effect: "(d) Transfer or sale of a federally owned property without adequate conditions or restrictions regarding preservation, maintenance, or use; and (e) Neglect of a property resulting in its deterioration or destruction."

As noted in the first chapter, the 1976 amendments to the National Historic Preservation Act freed the Advisory Council from reliance on National Park Service staff. Its executive director would no longer be the Service director or his designee but would be appointed by the Council chairman. Until this emancipation Bob Garvey had been required to serve two masters: his superiors in the Service and Interior Department and the Council chairman appointed by the President. This posed a potential for conflict when cases involving Service and Interior undertakings came before the Council. Director Ronald Walker delegated the executive directorship to Garvey after the Gettysburg tower case spotlighted this problem, but Garvey remained a Service employee. Aside from the conflict of interest issue, he found that his voice was not adequately heard in pleading the Council's budget through Service and Interior channels. To the surprise of his superiors, he and Council chairman Clement M. Silvestro successfully engineered independence in 1976. [10]

Because the Advisory Council was no longer staffed by the Park Service thereafter, the Council's activities beyond that date warrant only brief mention here. Its 1974 regulations were superseded in 1979 by still more refined procedures that covered, among other matters, programmatic memorandums of agreement with agencies—a mechanism for consolidating Section 106 compliance on a range of similar agency undertakings. A 1986 report prepared by the Service identified a consistent trend in the development of Council regulations away from an advisory role, toward a prescriptive, regulatory role" [11]—a trend that occasioned some opposition from federal agencies under the Reagan administration.

The dissemination and use of preservation standards and new Council regulations being readied in 1986 were expected to reduce burdensome aspects of the compliance process. "The Council's commenting process has been restructured to relate the degree of Council involvement to the complexity of each case and the extent of conflict," the Council reported of its proposed regulations. "Agencies are encouraged to consult directly with the State Historic Preservation Officer in routine cases to develop and sign a Memorandum of Agreement, which the Council then reviews." On the other hand, the regulations prescribed greater Council involvement where national historic landmarks were affected, in line with language in the 1980 amendments (see page 44). [12]

In a 1975 report the Council declared that, relative to property identification and registration, "the current protective system in the national historic preservation program is the least satisfactory part of the program." Many federal undertakings affecting historic properties had proceeded without reference to Section 106. Other undertakings were brought to the Council's attention too late for its comments to have any effect Lacking veto or approval power, the Council was severely limited in its ability to influence agency decisions. Even so, it reported that "[a] broad administrative interpretation of the statutory term 'undertaking,' a number of favorable court decisions, and an increasing awareness of Federal preservation responsibilities have contributed to a continually improving record of effectiveness for the Section 106 review process." [13] As preservation came more and more into the mainstream in succeeding years, rising to nigh-universal attention, the kind of heedless destruction that had prompted the National Historic Preservation Act became less and less common.

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