U.S.A. PRESERVATION LEGISLATIONS

8/7/2019 U.S.A. PRESERVATION LEGISLATIONS

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U.S.A. PRESERVATIONU.S.A. PRESERVATIONLEGISLATIONSLEGISLATIONS



U.S.A. PRESERVATIONU.S.A. PRESERVATION

LEGISLATIONSLEGISLATIONS The Antiquities Act (1906), authorized theThe Antiquities Act (1906), authorized the

president to set aside historic landmarks,president to set aside historic landmarks,located on lands controlled by the U.S.located on lands controlled by the U.S.government, as national monumentsgovernment, as national monuments

The Historic Sites Act (1935) established aThe Historic Sites Act (1935) established anational preservation policy. It authorizednational preservation policy. It authorized

the secretary of interior to make historicthe secretary of interior to make historicsurveys to document, evaluate, acquire, andsurveys to document, evaluate, acquire, andpreserve archaeological and historic sitespreserve archaeological and historic sitesacross the country.across the country.



U.S.A. PRESERVATIONU.S.A. PRESERVATION

LEGISLATIONSLEGISLATIONS The National Historic Preservation ActThe National Historic Preservation Act

(NHPA) (1966), broadened and(NHPA) (1966), broadened and

strengthened federal preservationstrengthened federal preservationprograms and represented a major stepprograms and represented a major step

forward in American historic preservationforward in American historic preservation

law.law.



FEDERAL INVOLVEMENT INFEDERAL INVOLVEMENT IN

HISTORIC PRESERVATIONHISTORIC PRESERVATION

The U.S. Congress has attempted toThe U.S. Congress has attempted toresolve an ageresolve an age--old tension between theold tension between theold and the new by affording protection toold and the new by affording protection to

historic structures in two ways: byhistoric structures in two ways: byenacting the NHPA of 1966 and byenacting the NHPA of 1966 and byestablishing tax incentives under the 1986establishing tax incentives under the 1986tax code.tax code.

The NHPA guarantees a federal role inThe NHPA guarantees a federal role inpreservation activities.preservation activities.





The NHPA authorizes the secretary of The NHPA authorizes the secretary of

interior to expand and maintain a Nationalinterior to expand and maintain a National

Register of districts, sites, buildings,Register of districts, sites, buildings,structures, and objects of local, state, andstructures, and objects of local, state, and

national significance.national significance.





The NHPA established the Advisory CouncilThe NHPA established the Advisory Council

on Historic Preservation:on Historic Preservation:

which advises the president and Congresswhich advises the president and Congresson matters relating to historic preservationon matters relating to historic preservation

comments on federally licensed, funded,comments on federally licensed, funded,

or executed undertakings affectingor executed undertakings affectingproperties listed or eligible for inclusion onproperties listed or eligible for inclusion on

the National Register of historic Placesthe National Register of historic Places

(National Park services 1984).(National Park services 1984).





The NHPA¶s broad definition of the wordThe NHPA¶s broad definition of the word

significant significant was intended to encompass awas intended to encompass a

wide spectrum of cultural values that arewide spectrum of cultural values that areassociated with events, a persons¶ life,associated with events, a persons¶ life,

characteristics of a period, or values thatcharacteristics of a period, or values that

have yielded or may contribute informationhave yielded or may contribute information

important to history (Ruzzi 1985).important to history (Ruzzi 1985).





Through the National Register of Through the National Register of

Historic Places, the NHPA hasHistoric Places, the NHPA has

established a vehicle for identifyingestablished a vehicle for identifyingAmerica¶s historic resources.America¶s historic resources.





One reason for the passage of the actOne reason for the passage of the act

was to protect local historic propertieswas to protect local historic properties

from federal action (Keune 1984; Vanfrom federal action (Keune 1984; VanSanders 1985):Sanders 1985):

They contend that Congress pass theThey contend that Congress pass the

act partly because of federal laws thatact partly because of federal laws that

were applied to a limited number of were applied to a limited number of

nationally significant historic properties.nationally significant historic properties.





During the 1950s and 1960s, several federalDuring the 1950s and 1960s, several federal

projects such as highways, dams, and urbanprojects such as highways, dams, and urban

renewal programs were undertaken withrenewal programs were undertaken withlittle or no regard for the locally valuedlittle or no regard for the locally valued

historic context of the communities in whichhistoric context of the communities in which

they were located (Keune 1984; Vanthey were located (Keune 1984; Van

Sanders 1985).Sanders 1985).

As a result, these projects damaged or As a result, these projects damaged or

destroyed hundreds of historic properties.destroyed hundreds of historic properties.





These concerns led to the development of These concerns led to the development of

the Section 106 Review Process of thethe Section 106 Review Process of the

NHPA:NHPA: a process that seeks to protect historica process that seeks to protect historic

properties from unnecessary harmproperties from unnecessary harm

caused by federal action.caused by federal action.



The head of any Federal agency having direct or indirectThe head of any Federal agency having direct or indirect

jurisdiction over a proposed Federal or federally assistedjurisdiction over a proposed Federal or federally assisted

undertaking in any State and the head of any Federalundertaking in any State and the head of any Federaldepartment or independent agency having authority todepartment or independent agency having authority to

license any undertaking shall, prior to the approval of thelicense any undertaking shall, prior to the approval of the

expenditure of any Federal funds on the undertaking or prior expenditure of any Federal funds on the undertaking or prior

to the issuance of any license, as the case may be, take intoto the issuance of any license, as the case may be, take intoaccount the effect of the undertaking on any district, site,account the effect of the undertaking on any district, site,

building, structure, or object that is included in or eligiblebuilding, structure, or object that is included in or eligible

for inclusion in the National Register. The head of any suchfor inclusion in the National Register. The head of any such

Federal agency shall afford the Advisory Council onFederal agency shall afford the Advisory Council onHistoric Preservation established under Title II of this Act aHistoric Preservation established under Title II of this Act a

reasonable opportunity to comment with regard to suchreasonable opportunity to comment with regard to such

undertaking. (Section 106 (16 U.S.C. 470f))undertaking. (Section 106 (16 U.S.C. 470f))





Section 106 requires agencies to take intoSection 106 requires agencies to take into

account the effect of their actions onaccount the effect of their actions on

historic properties.historic properties. Included is a review process that outlinesIncluded is a review process that outlines

steps to identify historic properties and tosteps to identify historic properties and to

determine the impact of agency actions ondetermine the impact of agency actions on

the property (Advisory Council on Historicthe property (Advisory Council on Historic

Preservation 1979).Preservation 1979).





The federal role in preservation was further The federal role in preservation was further

expanded in 1971.expanded in 1971.

Executive Order 11593, Protection andExecutive Order 11593, Protection and

Enhancement of the Cultural EnvironmentEnhancement of the Cultural Environment

directs federal agencies to take a leadershipdirects federal agencies to take a leadership

role in preserving, restoring, and maintainingrole in preserving, restoring, and maintaining

the historic environment of the nation.the historic environment of the nation.

Agencies are directed to ensure that federalAgencies are directed to ensure that federal

plans and programs contribute to theplans and programs contribute to the

preservation and enhancement of nonfederallypreservation and enhancement of nonfederally

owned historic resources.owned historic resources.





The NHPA is seen to have two major flaws:The NHPA is seen to have two major flaws:

11stst, the act does not prohibit private, the act does not prohibit private

property owners from destroying historicproperty owners from destroying historicproperties that have been listed on theproperties that have been listed on the

National Register.National Register.

22ndnd, the Section 106 Review Process does, the Section 106 Review Process does

not require an agency to follow thenot require an agency to follow the

recommendations of the Advisory Council.recommendations of the Advisory Council.





Although a project may be directed until theAlthough a project may be directed until the

agency complies with Section 106¶s proceduralagency complies with Section 106¶s procedural

requirements,requirements,

The Advisory Council on Historic PreservationThe Advisory Council on Historic Preservation

does not have the authority to alter or modifydoes not have the authority to alter or modify

projects that have an adverse impact on historicprojects that have an adverse impact on historic

sites or structures (Ruzzi 1985).sites or structures (Ruzzi 1985).

Ruzzi (1985) contends that this major flaw inRuzzi (1985) contends that this major flaw in

section 106 leaves historic resourcessection 106 leaves historic resources

inadequately protected from adverse actions.inadequately protected from adverse actions.





Section 106 contains NHPA¶s onlySection 106 contains NHPA¶s onlyrestriction on actions adversely affectingrestriction on actions adversely affectingNational Register property.National Register property.

The restriction provides for a federal agencyThe restriction provides for a federal agencyto take into account the effect of anto take into account the effect of anundertaking and gives the Advisory Councilundertaking and gives the Advisory Council

an opportunity to comment on and minimizean opportunity to comment on and minimizethe adverse consequences to the propertythe adverse consequences to the propertyby consulting with the State Historicby consulting with the State HistoricPreservation Officer (SPO).Preservation Officer (SPO).





This restriction does not, however,This restriction does not, however,

protect the historic property from allprotect the historic property from all

adverse actions, only from those inadverse actions, only from those inwhich the federal government iswhich the federal government is

involved.involved.





Some believe that the NHPA did not goSome believe that the NHPA did not go

far enough in providing incentives for far enough in providing incentives for

preservation (Silver 1982; Van Sanderspreservation (Silver 1982; Van Sanders1985).1985).

The lack of federal tax incentives isThe lack of federal tax incentives is

thought to be a major weakness of thethought to be a major weakness of the

NHPA.NHPA.





Feigenbaum and Jenkinson (1984) andFeigenbaum and Jenkinson (1984) andYeomans (1985) believe that federalYeomans (1985) believe that federalfinancial assistance is required to maintainfinancial assistance is required to maintain

current levels of preservation activities incurrent levels of preservation activities inthe face of changing land use demands.the face of changing land use demands.

New steps in urban revitalization andNew steps in urban revitalization and

employment opportunities must be takenemployment opportunities must be takenin order to guarantee the continuingin order to guarantee the continuingbenefits of preservationbenefits of preservation





In 1980, Congress amended the NHPA,In 1980, Congress amended the NHPA,

strengthening it by adding provisionsstrengthening it by adding provisions

that helped bridge the gap betweenthat helped bridge the gap betweennational community development goalsnational community development goals

and historic preservation.and historic preservation.





The amendments reauthorized the historicThe amendments reauthorized the historicpreservation fund through 1987, requiredpreservation fund through 1987, requiredpublic and local government participationpublic and local government participation

in the nomination process, strengthenedin the nomination process, strengthenedthe role of state programs, establishedthe role of state programs, establishedstatutory authority for existing elements of statutory authority for existing elements of programs such as State Historicprograms such as State HistoricPreservation Offices, review boards, andPreservation Offices, review boards, andpublic participation, and establishedpublic participation, and establishedstandards for state programs.standards for state programs.





The amendments also established mechanisms toThe amendments also established mechanisms to

certify qualified local governments to participate incertify qualified local governments to participate in

nomination and funding programs.nomination and funding programs.

Other changes included additional authority for Other changes included additional authority for

the Advisory Council on Historic Preservation tothe Advisory Council on Historic Preservation to

review federal programs, recommendreview federal programs, recommend

improvements, and educate governmentimprovements, and educate government

agencies, organizations, and the publicagencies, organizations, and the public

concerning the council¶s activities.concerning the council¶s activities.





In 1988, Congress reaffirmed theIn 1988, Congress reaffirmed the

legislative mechanisms through 1992legislative mechanisms through 1992

(National Trust for Historic Preservation(National Trust for Historic Preservation[NTHP] 1988).[NTHP] 1988).





One of the most controversial provisionsOne of the most controversial provisionswas the requirement for owner was the requirement for owner notification and approval before anotification and approval before a

property could be listed on the Nationalproperty could be listed on the NationalRegister.Register.

The consent issue may have a negativeThe consent issue may have a negative

impact on historic preservation byimpact on historic preservation byencouraging demolition (Oldham 1980;encouraging demolition (Oldham 1980;Silver 1982).Silver 1982).





If an owner wants to avoid regulation byIf an owner wants to avoid regulation bywithholding consent for National Register withholding consent for National Register status, he or she may simply demolish thestatus, he or she may simply demolish the

structure and take the depreciation on thestructure and take the depreciation on thestructure without realizing any penalties.structure without realizing any penalties.

This has caused concern among someThis has caused concern among some

preservationists who believe that historicalpreservationists who believe that historicalsignificance alone, regardless of thesignificance alone, regardless of theowner¶s wishes, should be the criterion for aowner¶s wishes, should be the criterion for aNational Register listing.National Register listing.

U.S.A. PRESERVATION LEGISLATIONS

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