Report to the Members on the Proposed National Historic Preservation Act Amendments of 2005

Al Tonetti, Trustee, Chair Government Affairs Committee

May 2005

On behalf of the Board of Directors, I want to thank all of you who wrote to U.S. Reps. Nunes (Chairman), Christensen (Ranking Minority member), and other members of the U.S. House Subcommittee on National Parks, Recreation and Public Lands, the U.S. House Committee on Resources, Chaired by Rep. Pombo, or your U.S. Representative concerning the draft bill pertaining to the National Historic Preservation Act (NHPA) Amendments of 2005, a hearing for which was held on April 21, 2005. A bill has yet to be introduced concerning these amendments, but soon it is expected that one will be because the NHPA is up for reauthorization this year, thus providing an opportunity for legislators who want to change the Act.

On behalf of the OAC I faxed a letter to Reps. Nunes and Christensen informing them of problems with Section 4 of the draft bill, asking them to reject it. The letter is on our website in the news section.

Thanks to ASC Group, Inc. President Shaune Skinner, I am working on an American Cultural Resources Association (ACRA) committee, of which ASC Group is a member firm, educating U.S. Reps. on the Subcommittee about the NHPA and the effects of the draft amendments. I will endeavor to keep the OAC's Board of Directors, the Govt. Affairs Committee, and the membership current with accurate information concerning this matter. Expect to hear from me in the not too distant future. Although Ohio does not have any Reps. on either the Subcommittee or the full Committee (on Resources), and ACRA is focusing its attention on the states that do, there will again come a time for all of us to act.

For those of you who aren't familiar with what our friends on the right from the left coast are trying to do, they are proposing, under the guise of preserving private property rights, to have Section 106 of the NHPA apply only to historic properties listed in on formally determined eligible for listing in the National Register of Historic Places (NRHP) by the Secretary of the Interior, through the Keeper of the NRHP who, not coincidentally, was recently removed from her position by the Bush Admn. Not considering such properties on federally funded, licensed, and permitted projects pursuant to Section 106 of the NHPA will result in no more Phase I or Phase II archaeological investigations and the destruction, without consideration by federal agencies, of hundreds of thousands of significant archaeological sites, not to mention other types of historic properties such as buildings, battlefields, TCPS, etc. Conversations between ACRA's leadership and the Subcommittee staff make it clear that it is the desire of our friends on the right to limit the number of historic properties that must be considered by Section 106.

Please stay informed about this matter. You can do so by reading the hot topics section on the opening page of ACRA's website,, where you can also read a copy of the draft bill.

A note about the difference between lobbying vs. educating. As a 501c(3) nonprofit organization, the OAC is prohibited by law from lobbying (e.g., contributing $ to campaigns, endorsing or advocating for candidates). We educate (inform legislators, express our views, etc.).

Here's a summary of the draft NHPA Amendments of 2005

The NHPA is up for reauthorization this year and parts of a draft bill reauthorizing it was the focus of a hearing by the U.S. House Subcommittee on National Parks, Recreation, and Public Lands on April 21. The OAC supports reauthorization of the NHPA but there are sections of the draft bill that we do not feel are constructive and we are working to see that they are not part of an eventual bill. The parts of the draft bill that we do not support are:

Section 2. Owner Participation in NRHP Nomination Process. This section would change the current process allowing an owner to object to the actual listing of his or her property to a system that aborts the entire process. Presently, if an owner objects to their property being nominated, which can be done by anyone, the property will not be formally listed but will be considered as to whether it meets the NRHP criteria as determined by the Keeper of the NRHP. Under the proposed change a property could not even be evaluated/considered if an owner objected to its being nominated. Though, in fact, very few properties are proposed for nomination in which the owner objects, this change would undermine the concept of the NRHP as a list of properties significant in our history at the local, state, and national levels. The current system is a reasonable compromise between honoring the desires of the property owner and allowing for the consideration of whether a property meets the NRHP criteria.

Section 3. Additional Criteria for Certification of Local Governments to Carry out the NHPA. This section addresses a supposed link between NRHP listing and local historic zoning. Local historic zoning, like all land use regulation, is a local matter. While there may be some jurisdictions in which NRHP listing is used as a "trigger" for local zoning, this is unusual. There are ample provisions to protect the due process rights of property owners in all jurisdictions that administer historic zoning ordinances. Adding this legislative provision to the NHPA would be an unwarranted federal intrusion in a prerogative of state and local government.

Section 4. Consideration of Effect of Federal Undertakings. This provision, the one that the OAC commented to Reps. Nunes and Christensen on, would undermine the process for considering the effects to historic properties from federal undertakings. The provision would limit the process to properties that have been formally listed or determined eligible for listing by the Secretary of Interior, through the Keeper of the NRHP. This would alter the present system in which federal agencies, in consultation with each State Historic Preservation Office (SHPO), evaluate properties to be affected by a federal undertaking to determine whether an affected property meets the NRHP criteria, called a consensus determination. In every state only a minority of properties that meet the NRHP criteria have actually been listed or formally determined eligible for listing by the Secretary of Interior. The determination of eligibility by consensus enables unlisted historic properties to be considered in federal undertakings while allowing agencies to proceed with project planning on a timely basis. The proposed change would result in either historic properties being disregarded by federal agencies or in costly delays while evaluated properties are submitted to the Secretary of Interior for a formal determination. This process would at best add months to the planning required for approving federal undertakings and it most likely would be impossible for the Department of Interior to perform this function for the entire country.