The National Park Service (NPS) recently proposed making substantial, troubling changes to the rules that govern nominations to the National Register of Historic Places. The NPS’s proposed rule changes would primarily concern National Register nominations of federally owned properties and the process whereby property owners in historic districts object to nominations. The NPS is soliciting public comments on this proposed rulemaking until April 30.
The Proposed Changes:
The proposed rule contradicts the intention of both the National Historic Preservation Act (NHPA) and the 2016 amendment to the NHPA. Both the NHPA and the 2016 amendment were a reaction by lawmakers to what they saw as overreach by the federal government, and were intended to give state and local officials a greater say in federally funded or permitted projects that could result in damage to historic resources. The proposed rule makes changes that undermine both the literal meaning and the spirit of the NHPA, and threaten ongoing and future National Register of Historic Places nominations, particularly via three specific proposed changes:
- The proposed rule would effectively block the National Register nomination of federally owned or controlled properties by any entity other than the agency that owns or controls them, and could delay eligibility determinations relative to the Section 106 process.
- The proposed rule would prevent the listing of a property in the National Register if objections are received from a majority of the “land owners” or the owners of a majority of the “land area” of a property or district- a brand new concept in the process of determining owner-objection in the National Register process.
- The proposed rule would prevent the Keeper of the National Register of Historic Places from making eligibility determinations for properties that have not been nominated to the National Register without a request from both a State Historic Preservation Office (SHPO) and a “concerned Federal agency.”
About the Rules
Creating the opportunity to block the nomination of federally owned or controlled properties and eligibility determinations
Background: The current National Register regulations provide for any party to nominate to the National Register a property under a federal agency’s ownership or control. These nominations are submitted to the SHPO, who then works with the relevant federal agency to advance the nomination. If the federal agency does not nominate the property, there is an appeals process whereby the nomination can be advanced by the NPS.
Effects of Proposed Changes: The proposed rule change states that the Keeper of the National Register cannot hear an appeal of a Federal agency’s failure to nominate a property unless a variety of conditions are met, including a requirement that the federal agency in question first forwards the nomination to the Keeper. As
such, the opportunity to file an appeal of a federal agency’s failing to nominate a property to the National Register would be made contingent on the agency actually nominating the property- creating a regulatory purgatory for nominations. The rule does not allow a Federal agency to explicitly kill a nomination, but by removing the appeal process, it eliminates the ability of the NPS to advance a nomination unless the federal agency does so. The agency is then permitted to leave a nomination unsubmitted indefinitely, thereby
effectively killing it.
Allowing objections of the majority of land owners or the owners of a majority of the land area of a property or district to prevent the nomination of a property or district
Background: The current National Register regulations prohibit the listing of a property or district if a majority of the owners of private property within the nominated boundaries object to the listing.
Effects of proposed changes: The determination of
“owners of a majority of the land area of the property” could be so burdensome
as to make it virtually impossible for an historic district to be listed in the National Register of Historic Places, as it would necessitate that nominators and the SHPO both have access to a robust GIS platform to conduct those calculations, particularly for urban districts which could have thousands of properties. Both would need access to data with clear parcel boundaries, that computes land mass, standardizes a unit of measure (since urban lots may be in square feet and rural lots are more likely in acres), and that then applies weighted votes or representation. The systems would need to determine the size of individual parcels and then weight the parcels against the total area to determine the “weighted” right to objection. This could take months of work, and without access to an advanced GIS system
Less straightforward property ownership arrangements, such as condos, raise additional issues—they are three-dimensional “floating” real properties. Does that count for land area? And how would co-ownership issues (such as with heirs property or multiple-party LLC ownership), be handled?
By changing the requirement from the “majority of property owners” to both “majority of land owners” and “owners of a majority of the land area of the property,” the Department of the Interior has overstepped its authority. The concept of “land area” in determining owner objection does not appear in the NHPA. The NHPA also does not refer to “land owners.” The term used in the NHPA and in the existing regulations is simply “property” or “private property,” or “property owner.” There is no reference to “land.” This change is contrary to the statutory language of the National Historic Preservation Act, and inconsistent with the fundamental, democratic principle of one person, one vote.
Preventing the Keeper from making eligibility determinations for properties that have not been nominated to the National Register without a request from both a SHPO and a “concerned Federal agency”
Background: Outside of the nomination process for listing properties in the National Register, SHPOs and federal agencies sometimes request that the Keeper determine whether a property is eligible for listing in the National Register. This usually occurs as part of compliance with section 106 of the NHPA, which requires Federal agencies to take into account the effects of their undertakings on historic properties. The current regulations allow the Keeper to make eligibility determinations for properties that have not been nominated if necessary to assist in the protection of historic resources.
Effects of proposed change: The proposed rule change provides
that the Keeper of the National Register cannot determine the
eligibility of properties for listing in the National Register without a request from the appropriate SHPO and a concerned Federal agency. Accordingly, if there are differences of opinion on whether a federal property is National Register‐eligible, the proposed regulations would restrict the mechanism for resolving that disagreement, because the matter could not be referred to the Keeper without both the SHPO and the federal agency requesting such. The result would be delays
and uncertainty in the Section 106 review process – the antithesis of the stated goal of streamlining.
Proposed Rule Quick Facts (from the NCSHPO)
What can you do?
You can help by submitting your comments on the proposed regulations by the April 30 deadline, and by encouraging your colleagues and others in your network to do the same.
The proposed rule changes are likely to create a host of both intended and unintended barriers to good preservation outcomes, and now is the moment to oppose them. Express your concerns, and stand up for the integrity of the National Register!
- Submit comments on the proposed regulations by April 30. Your voice counts! Agencies are required to consider public comments during the rule-making process.
- Make it local. In your comments, include examples of how the proposed regulations are likely to interfere with preservation successes in your community. Also, think about examples of a successful National Register listing, Section 106 review, or HTC development project that would have been thwarted by the new rules.
- Share information with other historic preservation advocates. Share this post with colleagues and others in your network, and encourage them to submit comments by April 30.