NPS proposes to revise regulations governing the listing of properties in the National Register of Historic Places

By: Barton Ross, AIA
Chair, Historic Resources Committee

The National Park Service (NPS) recently proposed sweeping rule changes for handling nominations to the National Register of Historic Places (NRHP) and other substantive amendments to the National Historic Preservation Act (NHPA), which was enacted in 1966. This is being done without first seeking collaborative counsel and practical input from NPS staff, State Historic Preservation Officers (SHPOs), or Tribal Historic Preservation Officers (THPOs). Specifically problematic is the proposal that directly affects National Register nominations allowing greater power and flexibility for property owners, especially the federal government, when objecting to nominations affecting their property.

What are the benefits of listing in the NRHP? In addition to honorific recognition, a listing in the National Register affords historic properties:

  • Consideration in planning for federal, federally licensed, and federally assisted projects through Section 106 and Section 110. The Advisory Council on Historic Preservation (appointed by the President) oversees and ensures the consideration of historic properties in the federal planning process;
  • Owners of properties listed in the National Register may be eligible for a 20% investment tax credit for the certified rehabilitation of income-producing certified historic structures such as commercial, industrial, or rental residential buildings;
  • Consideration of historic values in the decision to issue a surface mining permit where coal is located in accordance with the Surface Mining Control Act of 1977; and
  • Qualification for federal grants for historic preservation.

For the past 50+ years, the process for objecting to National Register nominations was clear providing “one property, one vote” for owners wishing to formally object to listing. For instance, an owner (or majority of owners) of property could object to designation by notarized statements, which would then be taken into account by the Keeper of the National Register, typically an appointed NPS official, who is responsible for deciding on the eligibility of historic properties for final inclusion on the National Register of Historic Places. This was true for both individual properties and multiple properties as part of an historic district nomination.

However, the new proposed rule changes would extend the time the Keeper is allowed to make a decision (enabling bureaucratic delays) and creates a new method whereby ownership is counted as a percentage of the land area which is being nominated (not legally tenable). In other words, the greater percentage of acreage owned will now ‘somehow’ be calculated into an equation determining whose ownership voice matters more when objections are heard. This has never previously been part of the law and appears to lack a firm legal basis. It also fails to recognize the myriad of ways local governments and municipalities across the country currently tabulate up-to-the-minute property information, land survey data, plats, subdivisions, etc. Thus, the determination of actual percentages would be next to impossible to mathematically calculate and invariably lead to challenges and lawsuits, further impeding the entire process.

These new rules would also radically change how National Register Nominations are written and boundaries determined. Currently anyone can nominate properties to the NRHP using the appropriate forms. However, this proposal would require that only a federal agency can nominate listings affecting federal property. For example, what if a town wanted to nominate their downtown historic area for designation including the local post office? Conceivably the federal agency could now object and pressure the Keeper to hold the nomination in purgatory indefinitely, or force the boundaries of the historic district around government property, ultimately denying the valuable use of historic tax credits to affected private owners. Properties listed on the National Register are eligible to apply for a 20% historic tax credit (HTC) to support rehabilitation efforts, a key incentive for private investment in historic preservation and community revitalization. But nominations of large cultural landscapes with significant federal ownership could now be stopped entirely, especially concerning due to environmental concerns over oil and gas exploration.  Essentially and notably, this change enables federally-owned properties to permanently opt out of listing and oversight.

The ability of federal agencies to block these nominations under the new rule would further extend to National Register eligibility determinations under the Section 106 process. Section 106 of the National Historic Preservation Act (NHPA) requires all federal agencies to consider mitigation measures to offset adverse affects caused by federally funded projects on properties listed or even eligible for listing on the National Register. Federal projects can include cell tower installations, power line upgrades, military construction, interstate highway work, or environmental degradation caused by building a new Bay Bridge. Because many significant historic sites eligible for the National Register are deserving of consideration under Section 106, but lack the monetary resources needed to prepare a formal nomination, we rely on the Keeper’s eligibility determinations to potentially reverse federal agency or SHPO decisions. This provision would be deleted under the proposed regulations, and, as a result, the Keeper would not be able to make eligibility decisions without a specific request from a federal agency and would therefore not be authorized to disagree with the federal agency’s views on eligibility.

So, why should we as architects care? The proposed federal rule changes discussed here would allow federal agencies to effectively block any nomination to the NRHP which affects their historic properties. This would in turn put unnecessary strains on state historic preservation offices, curtail new listings, and possibly diminish the positive effects of Section 106 consultations by failing to consider all National Register–eligible historic properties. In short, the federal government is taking steps to exempt its own agencies from fully participating in historic preservation review processes that have been successfully used to save communities, neighborhoods and properties in this country for over fifty years.

What can we do to voice our concerns? The National Trust for Historic Preservation is sponsoring an email form letter to make sure opposition voices are heard: Go to: https://actnow.io/F7N2feZ  Comments are due April 30!

More information and the actual text of the regulation change can be found here: https://www.federalregister.gov/documents/2019/03/01/2019-03658/national-register-of-historic-places