Regulatory Compliance

Regulatory Compliance

NHLs and Federal Regulation

It is important to note that an NHL may be subject to federal regulation. Federal, state, and local government-owned properties as well as private schools, institutions, and non-profit organizations are often recipients of federal funding, and, therefore, would be affected by federal laws. Surface mining, especially surface coal mining, is subject to federal laws. There is also federal legislation that affords some degree of protection to archeological sites and the artifacts contained in them. Private property owners of commercial or residential buildings are less likely to be directly affected. However, federally funded construction of highways, utility lines, or buildings may affect adjacent, privately-owned historic properties.

Effects of Federal Involvement on Landmarks

Federal funding or licensing of activities that affect historic properties are regulated principally by Section 106 and Section 110(f) of the National Historic Preservation Act. Other federal effects are listed in 36 CFR § 65.2. Under Sections 106 and 110(f) of the Act, federal agencies must "take into account" the effects of their undertakings on historic properties, and afford the Advisory Council on Historic Preservation an opportunity to comment on the undertaking and its effects. Implementing regulations of the Advisory Council may be found in 36 CFR § 800 "Protection of Historic Properties," which establishes a process of consultation with the State Historic Preservation Officer and the Advisory Council leading, in most instances, to agreement on how the undertaking will proceed. Steps in the process include identification and evaluation of historic properties that may be affected, assessment of the effects of the federal action, and resolution of any adverse effects that would occur. If a federal activity will "directly and adversely affect" a Landmark, Section 110(f) of the Act also calls for federal agencies to undertake "such planning and actions as may be necessary to minimize harm to such Landmark." As with Section 106, the agency must provide the Advisory Council with a reasonable opportunity to comment in accordance with 36 CFR § 800.

Section 106 Process

The timeline for the Section 106 Process varies depending on the historic property, the anticipated effect, the proposed undertaking, the complexity of consultation and negotiation, and the extent of public interest or controversy. The regulations do, however, provide specific time limits for both State Historic Preservation Officer and Advisory Council on Historic Preservation action in response to agency requests for comment.

Please note: The Advisory Council on Historic Preservation has no veto authority over federal agencies. It is important to keep in mind that the law does not forbid specific actions, even those damaging to historic properties. The purpose of the law is to require federal agencies to consider the effects of their undertakings on the nation's historic properties. Once this has been accomplished, federal agencies may choose to proceed with the undertaken as originally planned, modify it to mitigate damage to the property, or not undertake the project.

Even if the owner objects to Landmark status, Section 106 procedures can take place. The law was specifically designed to extend Section 106 protection to historic properties not designated as National Historic Landmarks or listed in the National Register. Section 106 requires the implementation of Advisory Council review for properties listed in or determined eligible for listing in the National Register. Evaluations of historic significance are made for all properties potentially affected by federal undertakings in the Section 106 process. If the property meets National Register criteria for listing, a determination of eligibility is made and the property becomes subject to the Section 106 process.

A determination of eligibility for National Historic Landmark status may also be made by the Secretary of the Interior when an owner objects to Landmark designation. This action is equivalent to a determination of eligibility for listing in the National Register. In other words, federal undertakings will still be reviewed.

Some potential Landmarks are already listed in the National Register and thus an owner's objection to Landmark status will not halt implementation of Section 106. Section 110(f) of the law requires a higher level of attention for Landmarks adversely affected by federal undertakings; this Section, however, does not apply unless the property is designated a National Historic Landmark.

Advantages to NHL Owners

Many property owners of Landmarks and National Register properties have found the Section 106 process useful in ensuring that incompatible development projects or other actions funded, licensed, or initiated by federal agencies are reviewed and modifications made when possible to avoid, minimize, or mitigate possible harm to historic properties. Examples of undertakings that would receive Section 106 review might include levee construction and other flood control measures that could destroy archeological sites; construction of a new four-lane, limited-access road through a rural historic district; and demolition, alteration, repair, and rehabilitation of deteriorated homes in a historic neighborhood funded by Community Development Block Grant monies to local governments.

Last updated: June 11, 2020