Historic preservation is the conservation, rehabilitation, preservation, and restoration of historic and cultural resources. Determining whether a resource is historic or culturally significant can require many judgment calls. Evaluating the impacts of a project on these resources also requires subjective analysis. Even with supporting archival and survey data, it is often not clear whether property is historic or may suffer negative impact from development. That said, failing to identify and mitigate impacts to historic resources can lead to significant project delays and increased transaction costs.
Consider the question of whether an interstate pipeline right-of-way (ROW) would impact historic resources when the proposed ROW cut through a lesser known Civil War battlefield that had unmarked graves throughout the property. In a perfect world, a desktop review of the various proposed ROWs could have warned the company about historic resources it may encounter. When that did not happen, the company had to spend considerable time and money re-routing the pipeline to avoid the battlefield. If the company had tried to proceed with the ROW through the battlefield, it would have encountered challenges by state and federal agencies, in addition to private stakeholders.
By engaging a historic preservation specialist early in a project, entities can avoid heightened transactional costs like those described above and potential future litigation for failure to properly consider project impacts to historic resources.
This article offers a brief overview of historic preservation, highlighting the areas where a historic preservation specialist can help a project team. It begins with an examination of what it means for a resource to be historic, offers a brief overview of the two major historic preservation statutes, and explains the consequences of failing to comply with those requirements.
Historic and cultural resources can include buildings, sites, structures, objects, and districts. While states and local governments may set their own standards of what is considered “historic,” the majority of these jurisdictions follow the National Register for Historic Preservation criteria.
At the federal level, the National Register of Historic Places (NRHP) is the official list of the historic places in the United States. Authorized by the National Historic Preservation Act of 1966 (NHPA), the National Park Service (NPS) oversees the NRHP. For many federal statutes and regulations, listing on the NRHP or eligibility for listing on the NRHP defines whether a place is historic and significant to be preserved.
To be considered eligible for listing on the NRHP, a property must:
The subjectivity arises from the last two criteria. To be eligible for listing, a property must possess significance due to its:
See 36 C.F.R. § 60.4.
Although these criteria provide guidelines for identifying significance, it is up to the consultant conducting the historic resources survey to decide whether the significance is enough to be considered eligible for NRHP-listing.
Even if a property has historic significance, it still must retain a sufficient level of integrity to be eligible for NRHP-listing. The NPS has identified seven aspects of integrity: (1) location, (2) design, (3) setting, (4) materials, (5) workmanship, (6) feeling, and (7) association. As with historic significance, there are no set parameters for measuring these factors to be NRHP-eligible. Rather, whoever conducts the resource survey must make a determination and then defend that determination to the State Historic Preservation (SHPO), potentially the Tribal Historic Preservation Officer (THPO) where applicable, and the NPS.
There are many federal, state, and local statutes, regulations, and rules relating to historic preservation. The two of the most impactful statutes relating to historic preservation are the National Historic Preservation Act and the National Environmental Policy Act. While these two statutes represent the “stick” in the preservation statutory and regulatory regime, there are also a number of “carrots” available, including a 20 percent income tax credit for the rehabilitation of historic, income-producing buildings.
While both statutes create obligations for federal agencies, these agencies may then delegate the actual analysis of historic resources to project proponents. As a result, while our discussion here refers to agencies as the primary actors, in reality the responsibility for conducting these surveys, stakeholder meetings, and analysis will fall on your developer client.
The NHPA provides a federal framework for historic preservation. Section 106 of the NHPA requires agencies to take into account the effect of a federal undertaking on historic property. 54 U.S.C. § 306108. To comply with this mandate, an agency must analyze the impact of the larger undertaking on historic resources each time it funds, licenses, or permits a project.
Section 106 analysis must be done in consultation with the SHPO and, when applicable, the THPO. Similarly, the NHPA provides avenues for public comment and involvement throughout the process.
Parties run afoul of the NHPA when they fail to consider all the impacts to historic and cultural resources. Often this misstep occurs when a party does not fully consider and address stakeholder comments either from the public or from the SHPO or THPO. The difficulty for many parties lies in anticipating all impacts to historic resources and identifying which ones are truly plausible. Likewise, whether a historic resource retains enough integrity to be eligible for listing on the NRHP is a subjective call by the consultant and the SHPO or THPO. If enough stakeholders disagree with a party’s analysis, they can challenge the agency’s actions in federal court. If these challenges are upheld, it can cause extensive delays and added costs.
The National Environmental Policy Act (NEPA) also requires federal agencies to consider the consequences of federal actions to the environment and cultural resources. Agencies must identify project impacts to the environment. Every “recommendation or report on proposals for legislation or other major Federal actions significantly affecting the quality of the human environment” triggers NEPA review. 42 U.S.C. § 4332(C). Effects to the human environment include ecological, aesthetic, historic, cultural, economic, social, or health, “whether direct, indirect, or cumulative.” 40 C.F.R. § 1508.8(b).
As with the NHPA, agencies must consult with SHPOs and THPOs as well as allow public comment. Depending on the type of project and potential impacts, an agency may conduct analysis at one of three levels. The highest level requires the production of an Environmental Impact Statement (EIS). 40 C.F.R. § 1508.18. Federal agencies must prepare an EIS if the proposed project is determined to significantly affect the quality of the human environment. Also like the NHPA, agencies and projects typically run into trouble with NEPA when they fail to fully consider and address project impacts to historic resources.
A court cannot assess monetary or other damages for a violation of the NHPA or NEPA. However, a court may require the agency to go back and conduct a more thorough examination, causing a delay that could kill a project or at least dramatically increase costs.
Below are examples of cases in which petitioners challenged or are challenging an agency’s failure to consider historic or cultural resources.
Cape Wind was a proposed windfarm off the coast of the Massachusetts in the Nantucket Sound. Initially proposed in 2001, Energy Management Inc. (EMI) held the lease for the site since 2010; however, after the Mineral Management Service (MMS) concluded its NHPA review, two local tribes requested that the Nantucket Sound be listed on the NRHP. The NPS determined that the sound was NRHP-eligible, meaning the MMS was required to redo its Section 106 analysis. After further opposition involving historic and cultural resources, EMI officially abandoned the project in 2017, after spending approximately $100 million in project development.
In an ongoing case, Narrangansett Indian Tribe v. Hendrickson, the Narrangansett Indian Tribe alleges that the Federal Highway Administration (FHWA) violated both the NHPA and the Administrative Procedure Act by failing to address the impact of the FHWA’s proposed I-95 Providence Viaduct Bridge replacement project in the Providence Covelands Archeological District. On January 7, 2020, a Rhode Island federal judge granted the tribe’s motion to transfer venue to D.C. federal court because the case involves a federal official.
In July 2017, Dominion Energy obtained a permit for an electrical transmission line to cross the James River in Virginia; however, a number of preservation groups sued, arguing that the Army Corps failed to consider the impacts to historic and cultural resources under the NHPA and NEPA. In March 2019, the D.C. Circuit Court ordered the Army Corps to complete an EIS even though the project had been completed and was providing electricity to 600,000 people on the Virginia Peninsula. The panel held that the corps did not properly consider concerns from federal and state agencies over the project’s potential effects on historic sites along the James River. The case was remanded to the district judge to decide whether to vacate the corps original permit or to allow the transmission line to continue functioning while the corps completed an EIS. In November 2019, the district judge ruled that the original permit may remain in place and the transmission line continue to function while the corps completes an EIS.
Even the most scrupulous project manager can run into trouble with historic and cultural resource analysis under the NHPA and NEPA. Although there will likely always be differing opinions about whether some resources are truly NRHP-eligible, having a qualified historic preservation specialist on your team can help avoid some of these issues.
The NPS offers guidance on selecting a qualified historic preservation specialist. Referred to as a Secretary of the Interior Qualified Historic Preservation Specialist, this expert must meet education, experience, and success requirements. A historic preservation specialist must have either a graduate or undergraduate degree in historic preservation or closely related fields. He or she must have a minimum of two years, full-time professional experience if they have a graduate degree and four years’ experience if they have an undergraduate degree. Finally, he or she must demonstrate the successful application of proficiencies in the discipline of historic preservation.
Regardless of whether you find value in the preservation of historic and cultural resources, your clients must abide by all applicable statutes, regulations, and rules or risk severe consequences. Navigating these preservation obligations can be fraught with hazards even for the most scrupulous reviewer. Engaging a historic preservation specialist early in the development of a project can mitigate the risks created by this uncertainty. A historic preservation specialist must meet the qualifications established by the NPS to conduct the reviews and impact studies required under both the NHPA and NEPA. Even if your federal permit, license, or funding is challenged for a failure to identify historic resources or potential impacts to those resources, having a preservation specialist on call will provide you the best footing to demonstrate your adherence to these obligations.
