Our Insights

Managing Our Past—The National Historic Preservation Act

May 24, 2019

By Glenn Darrington, Ph.D., RPA
Cultural Resources Department Manager, Environmental Division

This article was originally published in Currents, POWER’s quarterly Environmental newsletter.

As a society, we take great pride in our history, culture and heritage. And we view the loss of highly valued artifacts and resources as diminishing our society today and for future generations.

It was in this spirit that the National Historic Preservation Act (NHPA) was passed in 1966. It requires federal agencies to inventory those important cultural resources under their management, including prehistoric or historic districts, sites, buildings, structures or objects.

Agencies must also identify those resources that could be damaged by federal actions and take steps to avoid, minimize or mitigate that damage. These damaging actions or undertakings can include federally funded housing or road projects, issuance of a federal permit, or granting of a right-of-way across federal land.

Under the NHPA, federal projects—or those using federal funds—are subject to something called Section 106 [1], a formal review process that helps inventory these important cultural resources and avoid or minimize harm.

Overseen by the President’s Advisory Council on Historic Preservation (ACHP), Section 106 gives the ACHP, interested parties and the public the opportunity to learn more about the project and to voice their concerns before a final decision is made.

But along with the many steps involved in the Section 106 review process, there are a number of other factors that come into play when deciding the future of historic properties in a community.

Compliance Complexities

Over the last five decades, the level of effort to comply with this legislation has steadily increased.

For example, consultation with Native American tribes needs to be undertaken on a formal “government-to-government” basis. The identification of historic properties not only includes pedestrian field inspections, but also the completion of inventories of cultural landscapes and traditional cultural places. Assessing indirect visual effects to historic properties is now common on large energy projects. Finally, the use of data recovery (archaeological excavation) to mitigate adverse effects has become more problematic and costly given the rising costs of labor, equipment, artifact analysis, and curation.

For many large-scale projects, the documentation required to complete the Section 106 process—consultation letters, inventory reports, Historic Property Treatment Plans (HPTPs), Unanticipated Discovery Plans, Memorandum of Agreements (MOAs), and final mitigation reports—can be the largest component of a project record. 

To streamline the process, federal agencies can implement program alternatives such as Programmatic Agreements in place of the normal Section 106 process, which saves time and money.

Rising Role of the SHPO

The role of the State Historic Preservation Office (SHPO) and ACHP in the process has also evolved over the last fifty years. The SHPO advises and assists federal agencies with carrying out their Section 106 obligations, including identifying historic properties, assessing and resolving adverse effects, and reviewing project design plans.

However, since a disagreement between a federal agency and SHPO requires additional consultations with the ACHP and the head of the federal agency involved, there is a very strong incentive for federal agencies at the state or local level to fully agree with and accommodate SHPO comments and requests.

This has resulted in SHPOs across the country not just fulfilling a consultation role but being empowered to direct how a project should proceed. This has raised the bar considerably in a number of areas including: expanding areas of inventory, broadening the range and types of sites that are determined eligible for listing on the NRHP, increasing the scope of Native American consultations, and requiring federal agencies to provide proof that they have consulted with members of the public and have adequately considered any requests made.

More Expansive

When the NHPA originally passed, the primary intent was to help preserve historic buildings and structures which were being demolished because of intense urban renewal projects of the 1960s. The protection of archaeological sites was a secondary concern.

Today, the range of cultural resources that needs to be assessed is much more diverse and expansive, including locations of traditional and/or religious use that may or may not have any physical manifestations.

This expansion has occurred with no corresponding update to the law itself.  Among Native American groups, the NHPA’s inability to adequately protect some types of cultural resources has generated a high level of dissatisfaction.

It is important to note that the NHPA does not require the preservation of any historic property that will be adversely affected, only that consultation, inventory, and assessment occurs, and that consultation to resolve adverse effects is conducted. For example, if a federal agency decides that mitigation is the preferred option, the result could include the destruction of the historic property itself.

The Next 50 Years

It is hard to predict what the future will hold for the NHPA and the Section 106 process and how it will evolve to meet the needs of an ever-changing society. Given the current political climate, there is concern amongst the preservation community that changes will be made to weaken or undermine the legislation, but this seems unlikely given the public outcry that would result. There are attempts by many federal agencies to expedite the process, but this is a difficult task when public and tribal consultations are involved, especially on controversial projects. If the past is any indicator of what the future may hold, the good news is that we have in place a process that will help us preserve and protect our history and heritage for future generations.

Uncovering historic properties. A key component of the Section 106 process is field investigations to identify archaeological sites and assess their potential to contain important information about the past.

About the Author:

Dr. Darrington is a Registered Professional Archaeologist specializing in archaeology and cultural resource management. He has conducted more than 150 cultural resource survey, testing, monitoring, data recovery, resource management plan development, and inspection/monitoring/restoration projects in Nevada, Arizona, Utah, Wyoming, Idaho, Oregon, New Mexico, Montana, and Texas. He has assisted in consultation, analysis, and report preparation for projects located throughout the Intermountain West and Alaska. He has participated in a wide range of projects for local, state, and federal agencies, as well as for major utilities, project developers, and Native American tribes. Projects have involved electrical generation facilities, high voltage transmission lines, mining operations, natural gas pipelines, telecommunications facilities, transportation projects, and studies for the U.S. Department of Defense and U.S. Department of the Interior. In addition, Dr. Darrington has served as a Compliance Inspection Contractor (CIC) for the Bureau of Land Management (BLM).

For 15 years Dr. Darrington served as the director of a cultural resource division responsible for managing more than 20 cultural resource staff located in Arizona, Utah, Nevada, and Wyoming. He has served as a principal investigator and senior reviewer on more than 50 cultural resource studies, has provided expert testimony in support of energy generation and transmission projects, developed Programmatic Agreements and other agreement documents in support of Section 106 compliance, and has organized and managed Native American contact and coordination programs involving more than 60 tribes across the western United States. Questions for Glenn? Send him an email at glenn.darrington@powereng.com.

[1] In 2014, the codified law for the NHPA moved from Title 16 to Title 54. Although various provisions were re-ordered and text changes were made, the preservation community and industry continue to use the original Section names (106 and 110) when referring to key provisions of the original Act.