Anthropology 645
Historic Preservation
Week 3

Topic today is the federal involvement in historic preservation, environmental protection and land management. Focus on several laws, National Historic Preservation Act (1966), National Environmental Policy Act (1969) Executive Order 11593 (1971); Department of Transportation Act (1966); Archaeological and Historical Preservation Act (1974) [note that provisions of EO 11593 have been incorporated into the amended version of NHPA]. I expect you to be familiar with these laws but I don't regard this seminar as a place to review each law section by section (you can take one of the seminars offered by National Preservation Institute if that is your goal). I want to come away with is an appreciation/critique of the history of federal historic preservation legislation, the development of a historic preservation commitment at the federal level, policies affecting implementation, and the articulation of these laws with one another. In the case of NHPA, we also have a statute which has been amended twice (1980, 1992) and whose regulations have been revised as well-primarily having to do with the Section 106 review process.

The grouping of these statutes in time is not fortuitous; they span a period of a decade in the latter half of the 60s, first half of the 70s. What's going on here? To understand that, let's first recall what preceded them.

What federal involvement in historic preservation after World War II?

• National Trust for Historic Preservation chartered 1949. semipublic organization, means it gets money from both the fed. govt and private sources. purpose to provide education, to undertake preservation activities, including documentation, acquisition, restoration, etc. developed criteria for evaluating sites and buildings.
  
• Federal-Aid Highway Acts of 1956 & 58 and Reservoir Salvage Act of 1960. Decade of the 50s institutionalized the expansion of the federal government's role in directing industrial-economic development. Creation of an interstate highway system (linked to defense requirements during the Cold War), and the electrical-water control-agricultural development of major river basins (this actually conceived prior to WWII and implemented in the mid 40s) in the U.S. These large scale projects were the first in which national archaeological concerns about potential impacts on prehistoric sites. Why? Had the historical precedents of WPA archaeology, especially in the TVA project, but also their scale, and their distribution across virtually the entire country meant that many different sites would be affected. At the time, no requirement for excavation or data recovery to precede construction. If there were archaeologists acquainted with an area in which construction was planned or taking place, then emergency excavations might be undertaken. Short term, volunteer basis, little money, only most noticeable sites examined.
  
• What did these statutes accomplish? These acts established a national level responsibility for the preservation of historic properties, locating archaeological sites, and data recovery-mitigation efforts. Established need for prior surveys. Established role of salvage archaeology. Never enough money appropriated.

The Reservoir Salvage Program also initiated inter-agency cooperation in archaeology, involving the Smithsonian Institution, the National Park Service, the Army Corps, and the Bureau of Reclamation. Also initiated the development of contract archaeology, usually associated with educational or historical institutions.

• These actions served to set the stage for the legislative activity of the 1960s, yet they were curiously constrained by a continued timidity on the part of the federal government. Were not comprehensive, but limited to certain kinds of actions. Reactive to situations. No real authority to act beyond the confines of the charter or the enabling legislation.
  
• National Historic Preservation Act. Keep in mind that prior to NHPA, there was no national preservation policy, only private and local role for historic preservation. NHPA passed in 1966, and although it might appear to have been a legacy of the Kennedy administration, it is actually the legacy of the Johnson administration, and in particular, Lady Bird Johnson and her concern with national beauty. We know about her commitment to beautification, largely as a result of the legislation passed to eliminate billboards and to save or preserve open spaces. Additionally, the 1960s were a time of massive urban renewal in the US, and with that the disappearance of historically and architecturally signficant structures and neighborhoods. But out of the same conference organized for highway beautification, there was a committee formed to tackle the issue of historic preservation. A book, With a Heritage So Rich, produced from this conference which developed a comprehensive plan for the preservation of historic properties. Recommendations included broadened federal government concern with historic properties and widening interest to include properties of regional, state, and local significance. Also emphasized preservation of non-federal properties and the establishment of an advisory board. Amazingly, most of the provisions were adopted by Congress and passed into law as NHPA.

What are some of the themes of NHPA?:

1. Nation's spirit directly founded upon and reflected in its historic past,

2. Preservation of historical and cultural foundations as a source of orientation for future generations,

3. Present efforts inadequate given the rate and scale of change,

4. There is a role the government can and should play in historic preservation.

There are 5 main provisions of NHPA. What are they?

1. Established National Register of Historic Places to list districts, sites, structures, buildings, and objects of importance to American history, architecture, archaeology, and culture. From fewer than 700 properties (all of the landmarks) listed in 1966, the NR has grown to more than 45,000 properties (and more than 15,000 eligible properties). We return to this distinction later. The vast majority of listed properties are buildings, most located on private land.

Note that NHPA does not provide a clear and unambiguous definition of what constitutes a National Register property (either in terms of those on the register or eligible for it), nor does it constrain what activities can take place on such properties. It only provides guidelines for such a definition of National Register listing. This has implications for the implementation of NHPA. Means that with the exception of National Landmarks (which were grand-fathered into NR), our government has not categorically assigned certain properties to the NR. That is, it doesn't require that all homes of the original signers of the declaration of independent be preserved. This has opened the NR to potentially include many more properties than you might at first think would be eligible because it is a classification whose criteria are inferential (and thus not absolute). But King thinks that the concept of historic property that has been promulgated by NHPA is overly restrictive, either too archaeological or too architectural. Does not lend itself (or hasn't been emphasized by archaeologists or historians)to including more diffuse, less easily observable parts of the landscape-traditional cultural properties.

At the same time, by failing to provide blanket protection to NR properties, the law makes it possible to conceive of effects on these properties through human undertakings. In theory, no NR property is inviolate. Mount Vernon could conceivably be demolished if there were sufficient national interest in doing so--but not before it was satisfactorily documented. We alll know it won't be, but there is no absolute protection provided under NHPA to any historic property. The law enables conversion of the tangible 3 dimensional property to its informational content.

• Established Advisory Council on Historic Preservation to oversee the implementation of Act and subsequent compliance. This council was not placed within any existing federal agency, and it has steadfastly maintained its independence from all attempts to make it part of NPS or Interior. ACHP took early initiative with respect to NHPA, led the way in issuing draft regulations and rules, and established the need for inter-agency compliance with law.

Here I want to talk about an important but relatively little talked about aspect of federalism having to do with etiquette. There is a general policy that all federal agencies follow that stipulates that whenever an agency is mandated to regulate or otherwise control certain kinds of of actions, and that is all other agencies must conform to the rules established (that is reviewed first, and then printed in the federal register). This means that it is not possible for one agency to ignore the rules governing the actions for which another agency is responsible. They must cooperate. If not, then the federal government as we know it would not be possible. Thus, a very small entity such as ACHP can have a very big impact on the rest of the government after it issues its rules for interpreting the law which has brought it into existence.

Again, King has his own ideas about the limits to consultation that we see at the federal level. Places too much authority into a few hands, the State HPOs and agency archaeologists (or the contract archaeologists that have been hired). Also, consultation tends to focus on direct and observable impacts to parts of the built environment-much less concern during NHPA consultation regarding social and cultural values that might be affected by an undertaking's impact on historic properties.

• Set up a grants program for the states and the National Trust. Required the states to begin developing historic preservation offices and plans. This was a bit of genius in one way and probably one of the reasons this law passed. It decentralized part of NHPA, gave some authority to the states, gave some money to the states, and gave the states reasons-both financial and political--to support NHPA. Likely, however, that at first states did not recognize the full implications of NHPA. Today it would be hard to pass this responsibility on to the states, and yet this is a core provision and one of the reasons it works so well today. Perhaps the difference lies partly in the fact that most states were doing historic preservation at some scale prior to NHPA.
  
  • Placed National Register and grants program administration in the Department of Interior, which in turn, placed it in the National Park Service. Added to the Secretary of the Interior's rule making authority. But made Advisory Council and independent agency.
    
  • Established that a review process be implemented for all federal agencies in consultation with the Advisory Council whenever an agency began or participated in an undertaking that would affect a National Registry property. This seems to have been left deliberately vague-this is where regulations step in--and lacked specificity resulting in an open-ended review process. I wonder if congress would have voted for this law if they had known the form its regulations would ultimately take. I suspect, as well, that this a congressional tactic to take on legislation that may be a bit controversial, and that is to leave out the specification of particulars for the appropriate agency to develop. Takes the heat off the congress.The vagueness with which this provision regarding review was written was one reason that archaeologists were initially nonplussed by this act. It appeared to say that a review was necessary only when an known NR property might be affected. Because there were few archaeological sites on the NR, archaeologists guessed that there would be little impact on our of regional, state, and local significance. Also emphasized preservation of non-federal properties and the establishment of an advisory board. Amazingly, most the provisions were adopted by Congress and passed into law as NHPA.

What the archaeological profession failed to estimate was the doggedness with which the early Advisory Council would establish its role in the review process and the procedures the AC would stipulate as necessary to complete a review. What were some of these procedures?

Included inventories of lands not previously surveyed, and suitable documentation so that the NR status of properties could be assessed, and the stipulation that NR eligible properties to be affected by the undertaking have some kind of data recovery in order to ameliorate the effects of the undertaking.

Now most agencies balked at this. They were not prepared at first to plan for historic properties that might be affected by their undertakings. They pleaded poverty. They pleaded ignorance of the law. They pleaded lack of suitably trained staff. And admittedly it took some time--several years in fact--but eventually the federal etiquette procedures took hold and the agencies fell into place (some sooner than others).

• Along the way, there have been attempts to strengthen the act (and court cases which have challenged the act). What are we referring to? Why were these enacted?
• 
  EO 11593 was issued by Nixon and directed the heads of all federal agencies to inventory NR eligible properties under their jurisdiction, and until this was done to exercise caution so that no property would be inadvertently sold, altered or destroyed. What this did, in effect, was to establish inventory survey as the only means by which federal agencies could comply with NHPA. Very successful in bringing recalcitrant agencies along.
• 
  1974 Archaeological & Historic Preservation Act was much less successful. It was designed with one major assumption--that inventory surveys would not be successfully implemented by federal agencies as part of their planning process. And to a large extent this was true up to about the mid-70s. So the Act established a procedure for handling discoveries made during on federal lands or as a result of federal activities. The agency may request the Interior or some other qualified archaeological agent to undertake data recovery or preservation. Completely within the salvage mentality of the earlier Reservoir Salvage days. The sponsors of this act added a final section pertaining to the funding of such work, as a l% cost of the federal undertaking.

What has transpired is that this 1974 act is used primarily to intervene when an agency does a poor job of inventorying NR eligible properties and then such a property is subsequently discovered during a later stage of a project. This provides the basis for assessing the property and how it might be preserved or its information recovered.

• In 1978, President Carter issued Presidential memo directed ACHP to issue binding regulations on the Sec 106 process. This regulations developed the role of the State HPOs in the 106 process-they were to be consulted by agencies.
  
• Amendments to NHPA over the years clarified the overall structure of the national historic preservation program. Can read about King's view of them in the Section 106 book. Codified the place of identification of historic properties by federal agencies prior to actions which might affect them adversely (that is, integrated EO 11593). Advisory Council given independence from NPS. Provided for Certification of local government preservation programs (below the scale of states) and allowed them to participate in the benefits of the act. Also could provide nominations of properties to the National Register. A new section 110, specified responsibilities for federal agencies in managing their cultural resources. Section 101 identified the responsibilities of state HPOs. Established a program of grants to Indian tribes and minority groups to support preservation of their cultural heritage.
  
• In 1992 NHPA amended again, expanding federal agency responsibilities and establishing a program of support for tribal historic preservation programs. Tribes can (and have) taken over SHPO responsibilities on their lands
  
• EO 12898 directs agencies to consider environmental justice issues in their EIS work, EO 13006 addresses preservation of historic properties in city centers' and 13007 addresses protection of Indian sacred sites.
  
• What about the 1966 Department of Transportation Act has a section that is congruent with NHPA. It asserts that the agency will consider effects that undertakings have on historic properties prior to the initiation of the project. Clearly, a fundamental shift from the Federal Highways Acts of the mid 1950s. Planning identified as a part of any undertaking, not just responsive to findings during construction.
  
• National Environmental Policy Act of 1969. Why is this act important to historic preservation?

Established to provide opportunity for community and state comment on federal agency projects that might affect the environment.

This Act's provisions are spelled in much greater detail. The good news is that it directly mentions cultural and historical resources as part of the environment that the nation should protect and preserve.

Also stipulates that this should be part of the planning process for all federal projects. Ignorance of impacts not sustainable under this act.

Provides a threshold for the development of a document in which these resources would have to be assessed along side the effects of the undertaking-a detailed EIS. Usually have to do almost this much work just to see if a full-scale EIS is necessary. Environmental Assessments fall into this lower threshold category. (There are also categorical exclusions.)

Also NEPA has been the model for many state Environmental Policy Acts, such as Hawaii's.

Also established the Council on Environmental Quality (at one point was recommended to be abolished by the Clinton administration). The structural equivalent of the Advisory Council. But the CEQ never took an activist role with respect to issuing regulations for NEPA, or undertaking the various activities specified to it under the law. These include, gathering of information on national environment and trends in it; review federal government programs as they pertain to the act, to develop policies for the President, to conduct investigations, to monitor changes in environment, etc.

• The relationship of NEPA to historic properties only achieved by integrating it in compliance with NHPA. Today, when EIS are undertaken to fulfill NEPA, generally also comply with the provisions of NHPA. But note that there is a threshold effect at which EIS are undertaken, and there it is somewhat higher than for the Section 106 review under NHPA. Thus, not all projects may require EIS, but virtually all require adherence to NHPA.

One aspect of NEPA that King likes is the fact that its notion of cultural and historic properties is in some ways broader, or has been interpreted more broadly, than NHPA

On the other hand, NEPA explicitly develops the notion of weighing costs and benefits of undertakings, and it is possible that costs outweigh the benefits (an outcome which is generally more difficult to achieve with NHPA).

One important interpretation of NEPA and historic properties provided by the NPS officials. They interpreted historic properties in a manner similar to resources which are not being created anymore. A limited resource, forever diminishing. And thus in need of conservation. Thus, NEPA establishes a relevance to them that is structurally similar to that established for endangered species, scarce resources, or those that are under stress.

Other laws which connect with NHPA, include Department of Housing and Urban Renewal development block grants program which provide monies for historic preservation of structures and neighborhoods. Changes in the tax code at different times during the 1970s and 1980s have also helped to remove some of the bias towards rehabilitation of historic buildings.

Department of Interior told to issue a number of guidelines

Why does NHPA work as well as it does?

• Delineates and yet provides a role for public and private sectors and for agencies that operate at different scales (and purposes within each of these domains).
• Decentralizes decision-making. By the early 1980s the Advisory Council was no longer adversarial, but rather managerial. Some would say, it gave up too much of its authority. Others might argue it is simply adapting to the times.
• The cost of historic preservation, while not insubstantial, has not placed an overly onerous burden on land use and development in most areas. As a fraction of development costs, compliance is still well under l%, barely recognizable in most budgets as such.
• Compliance is based on consensus as well; not to mention that if there is little support for historic preservation only minimal work will be done.
• Advisory Council and Department of Interior educated federal agencies as to the importance of historic preservation and compliance.
• There is a real interest in many areas in the issue of historic preservation; taps a very authentic experience for most of us.
• Gave agencies time to establish and get their historic preservation programs operating. It did not cut off their project development funds

NHPA has provided considerable flexibility for compliance and adaptability to new circumstances. Survived different executives in the White House.