A Guide to the National Historic Preservation Act Requirements, Process, and Compliance

The National Historic Preservation Act (NHPA) stands as a pivotal piece of legislation that safeguards the United States' irreplaceable cultural heritage. This comprehensive guide delves into the intricacies of the NHPA, providing a clear understanding of its scope, compliance requirements, and the tools available to navigate its complexities. From the key definitions and jurisdictional boundaries to the nuances of the Section 106 review process and the roles of various agencies, this guide offers a thorough exploration of the NHPA's framework. Readers will gain insights into the Act's regulatory standards, monitoring and reporting obligations, and potential enforcement actions, as well as the compliance assistance and incentives that can facilitate adherence to its provisions. By the end of this guide, readers will be equipped with the knowledge and resources necessary to effectively manage projects while ensuring the preservation of the nation's historic treasures.

GENERAL INFORMATION

Key Details of the National Historic Preservation Act

Issuing Agency: The National Park Service, Department of the Interior

Year Established: 1966

Last Amended: 2016

Statutory Authority: National Historic Preservation Act

Primary Legal Reference: Title 54 of the United States Code, Subtitle III

What is the National Historic Preservation Act?

The National Historic Preservation Act (NHPA) is a federal law that establishes a national framework for the preservation of historic properties and cultural resources in the United States. It operates within the broader context of environmental and cultural resource protection, working in conjunction with other federal regulations such as the National Environmental Policy Act (NEPA) and the Archaeological Resources Protection Act (ARPA).

The NHPA's primary goal is to protect and preserve the nation's historic and cultural heritage by identifying, evaluating, and protecting significant historic properties and archaeological sites. The law is administered by the National Park Service (NPS) under the Department of the Interior, in partnership with State Historic Preservation Offices (SHPOs), Tribal Historic Preservation Offices (THPOs), and other federal, state, and local agencies.

Enacted in 1966, the NHPA has undergone several amendments, with the most recent significant changes occurring in 2016. The law establishes several key mechanisms for achieving its goals, including the National Register of Historic Places, the Section 106 review process, and the Certified Local Government program.

The NHPA applies to all federal agencies and any projects, activities, or programs that receive federal funding, permits, or approvals. It also encourages the preservation of historic properties at the state and local levels through grants, technical assistance, and other incentives.

What does the National Historic Preservation Act protect?

The National Historic Preservation Act (NHPA) protects historic properties and cultural resources that are significant in American history, architecture, archaeology, engineering, and culture. These resources can include buildings, structures, sites, objects, and districts that are listed on or eligible for listing on the National Register of Historic Places. The NHPA protects these resources from adverse effects caused by federal undertakings, which include projects, activities, or programs that are funded, permitted, or approved by federal agencies. The law achieves this protection through the Section 106 review process, which requires federal agencies to consider the effects of their undertakings on historic properties and to consult with stakeholders to resolve any adverse effects.

REGULATORY SCOPE & JURISDICTION

Regulated Activities, Entities & Prohibited Substances

The National Historic Preservation Act (NHPA) is a federal law that aims to protect and preserve the United States' historic and cultural resources. The NHPA regulates activities that may impact historic properties, which are defined as any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register of Historic Places.1

The NHPA applies to federal agencies, as well as any projects or activities that receive federal funding, permits, or approvals. This includes a wide range of industries and sectors, such as:

  • Construction and infrastructure development
  • Energy and utilities
  • Transportation
  • Mining and extraction
  • Federal land management

The NHPA does not explicitly prohibit any substances or activities. Instead, it requires federal agencies to consider the effects of their actions on historic properties and to consult with stakeholders, including the State Historic Preservation Officer (SHPO), Tribal Historic Preservation Officer (THPO), and the public, to identify and mitigate any adverse effects.2

Key Sections of the National Historic Preservation Act

Section 106

  • Purpose: Section 106 requires federal agencies to consider the effects of their actions on historic properties and to consult with stakeholders to identify and mitigate any adverse effects.3
  • Key requirements: Federal agencies must follow a specific process, which includes identifying historic properties, assessing potential effects, consulting with stakeholders, and developing mitigation measures if necessary.
  • Significance: Section 106 ensures that federal agencies consider the impact of their actions on historic properties and engage in a collaborative process to minimize harm.
  • Compliance strategies: Engage in early and ongoing consultation with the SHPO, THPO, and other stakeholders; document all steps of the Section 106 process; and develop appropriate mitigation measures when necessary.
  • Associated processes: The Section 106 review process, which includes initiation, identification, assessment, and resolution.

Relationship to Other Regulations & Agencies

The NHPA interacts with several other federal, state, and local regulations and agencies:

  1. National Environmental Policy Act (NEPA): NEPA requires federal agencies to consider the environmental impacts of their actions, including impacts on historic and cultural resources. The Section 106 process is often coordinated with the NEPA review process to streamline compliance.4

  2. Advisory Council on Historic Preservation (ACHP): The ACHP is an independent federal agency that oversees the Section 106 process and provides guidance and assistance to federal agencies, SHPOs, THPOs, and other stakeholders.5

  3. State and Tribal Historic Preservation Officers (SHPO/THPO): SHPOs and THPOs are responsible for administering the NHPA at the state and tribal levels, respectively. They play a key role in the Section 106 process by consulting with federal agencies and assisting in the identification and protection of historic properties.6

  4. Local preservation ordinances: Many local governments have their own historic preservation ordinances that may impose additional requirements or restrictions on projects that impact historic resources. These local regulations often work in concert with the NHPA to ensure comprehensive protection of historic properties.7

COMPLIANCE REQUIREMENTS & STANDARDS

Regulatory Standards & Limitations

The National Historic Preservation Act (NHPA) and its implementing regulations, 36 CFR Part 800, establish standards and limitations for federal agencies undertaking projects that may affect historic properties. The key regulatory standards include:

  1. Section 106 Review: Federal agencies must consider the effects of their undertakings on historic properties and provide the Advisory Council on Historic Preservation (ACHP) an opportunity to comment on such undertakings.8

  2. Historic Property Identification: Agencies must make a reasonable and good faith effort to identify historic properties within the area of potential effects (APE) of their undertakings.9

  3. Consultation: Agencies must consult with State Historic Preservation Officers (SHPOs), Tribal Historic Preservation Officers (THPOs), Indian tribes, Native Hawaiian organizations, and other stakeholders in the Section 106 process.10

  4. Assessing Effects: Agencies must assess the effects of their undertakings on historic properties and determine whether such effects are adverse.11

  5. Resolving Adverse Effects: If an undertaking is found to have an adverse effect on historic properties, agencies must seek ways to avoid, minimize, or mitigate such effects through consultation with stakeholders.12

These standards are enforced by the ACHP, which oversees the Section 106 process and can issue comments on agencies' compliance with the NHPA. The ACHP may also elevate concerns to the head of the agency or the President if an agency fails to comply with the NHPA or respond to ACHP comments.13

Monitoring, Reporting & Recordkeeping Obligations

Under the NHPA, federal agencies have several monitoring, reporting, and recordkeeping obligations:

  1. Documentation: Agencies must document their Section 106 process, including efforts to identify historic properties, assess effects, and resolve adverse effects. This documentation should be maintained in the agency's official project files.14

  2. Consultation Records: Agencies must keep records of their consultation with SHPOs, THPOs, Indian tribes, Native Hawaiian organizations, and other stakeholders, including correspondence, meeting notes, and agreements.15

  3. Memoranda of Agreement (MOAs): If an agency resolves adverse effects through an MOA, it must provide copies of the executed MOA to all consulting parties and the ACHP.16

  4. Programmatic Agreements (PAs): Agencies may develop PAs to govern the implementation of a particular program or the resolution of adverse effects from complex projects or multiple undertakings. PAs must be filed with the ACHP and made available to the public.17

  5. Annual Reporting: Agencies must submit annual reports to the ACHP on their historic preservation activities, including the number of undertakings reviewed, the types of historic properties affected, and the outcomes of the Section 106 process.18

These monitoring, reporting, and recordkeeping obligations are essential for ensuring transparency and accountability in the Section 106 process and demonstrating agencies' compliance with the NHPA.

Enforcement Actions & Penalties

The ACHP and other relevant agencies monitor compliance with the NHPA through various means, including:

Inspection TypeDescriptionFrequency
Routine InspectionsRegularly scheduled inspections of agencies' Section 106 complianceAnnually or biennially
Targeted InspectionsFocused inspections based on specific concerns or risk factorsAs needed
Complaint-Driven InspectionsInspections triggered by complaints from stakeholders or the publicAs needed

During inspections, agencies must provide access to project files, consultation records, and other relevant documentation. Agencies have the right to be present during inspections and to respond to any findings or concerns raised by the inspectors.19

Violations of the NHPA can result in various penalties, depending on the nature and severity of the violation:

Violation TypePotential Penalties
Failure to conduct Section 106 review- Administrative penalties- Civil fines up to $25,000 per violation- Injunctive relief
Failure to consult with required parties- Administrative penalties- Civil fines up to $10,000 per violation
Failure to maintain required records- Administrative penalties- Civil fines up to $5,000 per violation
Failure to comply with MOAs or PAs- Administrative penalties- Civil fines up to $25,000 per violation- Termination of federal funding or permits
Willful or intentional violations- Criminal charges- Imprisonment up to 1 year- Criminal fines up to $100,000 per violation

Factors that may influence the severity of penalties include the degree of harm to historic properties, the agency's history of compliance, and the agency's cooperation in remedying the violation.20

Compliance Assistance & Regulatory Incentives

Several programs and resources are available to help agencies understand and comply with the NHPA:

  1. Technical Assistance: The ACHP provides guidance documents, such as the "Section 106 Archaeology Guidance" and the "Reasonable and Good Faith Identification Standard," to help agencies interpret and meet the requirements of the NHPA.21

  2. Training and Workshops: The ACHP offers regular training sessions and workshops on Section 106 compliance, including webinars and in-person courses. For more, visit ACHP Training.

  3. Preservation Grants: The National Park Service administers several grant programs, such as the Historic Preservation Fund (HPF) grants, which provide funding for preservation planning, surveys, and rehabilitation of historic properties.

  4. Programmatic Agreements: PAs can streamline the Section 106 process for complex projects or multiple undertakings by establishing standard protocols and best practices for compliance. Agencies can work with the ACHP and other stakeholders to develop PAs that provide regulatory flexibility while ensuring the protection of historic properties.22

ADDITIONAL RESOURCES

Regulatory History & Upcoming Changes

The National Historic Preservation Act (NHPA) was enacted in 1966 to protect the United States' historic and cultural resources. The Act has undergone several amendments since its initial passage, reflecting evolving priorities in historic preservation and environmental protection.

Key amendments to the NHPA include:

  1. National Historic Preservation Act Amendments of 1980 (Public Law 96-515)23: These amendments strengthened the role of State Historic Preservation Officers (SHPOs) and established the Certified Local Government (CLG) program, which allows local governments to participate in the national historic preservation program.

  2. National Historic Preservation Act Amendments of 1992 (Public Law 102-575)24: These amendments, among other provisions, clarified the role of Indian tribes in the preservation process and required federal agencies to consult with Indian tribes when historic properties of religious or cultural significance may be affected by an undertaking.

  3. National Historic Preservation Act Amendments of 2000 (Public Law 106-208)25: These amendments, known as the "National Historic Lighthouse Preservation Act," established a program to transfer ownership of historic light stations to qualified entities for preservation and educational purposes.

  4. National Historic Preservation Act Amendments of 2006 (Public Law 109-453)26: These amendments, known as the "National Historic Preservation Act Amendments Act of 2006," made technical corrections to the NHPA and authorized appropriations for the Historic Preservation Fund.

As of 2023, there are no significant proposed rules, regulatory changes, or pending legislation related to the NHPA. However, it is essential for stakeholders to stay informed about potential future amendments or reauthorizations by monitoring congressional activity, agency announcements, and industry publications.

Additional Resources

  1. Full text of the National Historic Preservation Act, as amended: This resource provides the complete, current text of the NHPA. The document incorporates all amendments to date.

  2. Advisory Council on Historic Preservation (ACHP) website: The ACHP is an independent federal agency that promotes the preservation, enhancement, and productive use of the nation's historic resources. Their website provides extensive guidance, training materials, and resources related to the NHPA and Section 106 review process. Available at: https://www.achp.gov/ 27

  3. National Park Service (NPS) Technical Preservation Services: This division of the NPS provides technical assistance, education, and guidance related to the preservation and rehabilitation of historic buildings. Their website offers resources on the Secretary of the Interior's Standards for the Treatment of Historic Properties, tax incentives for historic preservation, and other relevant topics.

  4. National Trust for Historic Preservation: This private, nonprofit organization works to save America's historic places. Their website provides information on preservation advocacy, funding opportunities, and educational resources related to historic preservation. Available at: https://savingplaces.org/ 28

  5. National Conference of State Historic Preservation Officers (NCSHPO): This organization represents the interests of State Historic Preservation Officers (SHPOs). Their website provides a directory of SHPOs, as well as resources and publications related to historic preservation at the state level.

REFERENCES

  1. 54 U.S.C. § 300308

  2. 36 C.F.R. § 800.1

  3. 54 U.S.C. § 306108

  4. 36 C.F.R. § 800.8

  5. 54 U.S.C. § 304101

  6. 54 U.S.C. § 302303

  7. National Trust for Historic Preservation. (2021). Local Preservation Laws https://forum.savingplaces.org/learn/fundamentals/preservation-law/local-laws

  8. 36 CFR § 800.1(a)

  9. 36 CFR § 800.4(b)

  10. 36 CFR § 800.2(c)

  11. 36 CFR § 800.5(a)

  12. 36 CFR § 800.6(a)

  13. 36 CFR § 800.7(c)

  14. 36 CFR § 800.11(a)

  15. 36 CFR § 800.11(c)

  16. 36 CFR § 800.6(c)(1)(iv)

  17. 36 CFR § 800.14(b)(2)

  18. 36 CFR § 800.9(a)

  19. 36 CFR § 800.9(b)

  20. 36 CFR § 800.9(c)

  21. 36 CFR § 800.14(b)

  22. 36 CFR § 800.14(b)

  23. National Historic Preservation Act Amendments of 1980, Public Law 96-515, 94 Stat. 2987 (1980).

  24. National Historic Preservation Act Amendments of 1992, Public Law 102-575, 106 Stat. 4600 (1992).

  25. National Historic Preservation Act Amendments of 2000, Public Law 106-208, 114 Stat. 318 (2000).

  26. National Historic Preservation Act Amendments of 2006, Public Law 109-453, 120 Stat. 3367 (2006).

  27. Advisory Council on Historic Preservation, https://www.achp.gov/

  28. National Trust for Historic Preservation, https://savingplaces.org/

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A Note to Our Readers: We hope this guide is a valuable resource in helping you better understand the NHPA. However, it's not a substitute for professional advice and doesn't cover every scenario. Always consult with regulatory bodies and professionals for the most current advice and project-specific guidance.