Legal

Section 110 and the Spirit of Stewardship

Posted on: July 29th, 2015 by Special Contributor

 

By Katry Harris, Advisory Council on Historic Preservation

As we approach the 50-year mark of the enactment of the National Historic Preservation Act (NHPA), the Preservation Leadership Forum has enlisted the help of preservation practitioners to take a close look at how the NHPA is used to protect historic places. Earlier this year we took a look at Section 106, and are now covering Section 110, a provision that requires federal agencies to establish a historic preservation program for the identification and protection of historic properties under their direct control or ownership. In this final post in the series, Katry Harris from the Advisory Council on Historic Preservation looks at Section 110 and stewardship.

It shall be the policy of the federal government, in cooperation with other nations and in partnership with the States, local governments, Indian tribes, and private organizations and individuals to …(3) administer federally owned, administered, or controlled prehistoric and historic resources in a spirit of stewardship for the inspiration and benefit of present and future generations… (54 U.S.C. § 300101(3))

2015-section3-reportSince the addition, in 1980, of the Section 110 requirements to the National Historic Preservation Act, federal agencies have made significant progress in creating a culture of stewardship, reflecting the policy established in the Act, for historic properties under their control and those in non-federal ownership but affected by their undertakings. The Advisory Council on Historic Preservation (ACHP) maintains a current list of Federal Preservation Officers providing contact information for 14 departments and some 65 agencies. These dedicated historic preservationists work tirelessly to improve their agency’s knowledge of historic properties, train key staff, and implement procedures for considering the effects of their undertakings in all their program areas on historic properties. Their efforts, when supported at the highest level of agency leadership by Senior Policy Officials, have been successful in improving preservation outcomes.... Read More →

 

By Douglas Pulak

As we approach the 50-year mark of the enactment of the National Historic Preservation Act (NHPA), the Preservation Leadership Forum has enlisted the help of preservation practitioners to take a close look at how the NHPA is used to protect historic places. Earlier this year we took a look at Section 106, and are now covering Section 110, a provision that requires federal agencies to establish a historic preservation program for the identification and protection of historic properties under their direct control or ownership.

Section 110 (a) of the National Historic Preservation Act requires federal agencies to proactively identify and protect cultural resources under their jurisdiction. Each federal agency must establish “a preservation program for the identification, evaluation, and nomination to the National Register of Historic Places, and protection of historic properties.” In short, it goes back to the bedrock of any preservation effort—survey. Without adequate data about an agency’s historic properties, good decision-making is hampered, and it is not possible to know what should be protected and why if you don’t know what you have.  Surveys can be expensive, time-consuming, and divert resources from other programs.  And carried out in haste in response to a proposed development, they can be cursory. 

The Department of Veterans Affairs (VA) is one federal agency that has been doing comprehensive inventory of its historic properties for the last decade.  Doug Pulak, the VA’s Deputy Historic Preservation Officer, explains why the agency decided to undertake this survey approach, what challenges they encountered along the way, and how they are using the results.

The 1904 Carnegie Library is 1 of 35 contributing resources to the National Historic Landmark Mountain Branch, National Home for Disabled Volunteer Soldiers, now the James H. Quillen Veterans Affairs Medical Center, Johnson City, TN.  | Credit: Historic American Building Survey

The 1904 Carnegie Library is 1 of 35 contributing resources to the National Historic Landmark Mountain Branch, National Home for Disabled Volunteer Soldiers, now the James H. Quillen Veterans Affairs Medical Center, Johnson City, TN. | Credit: Historic American Building Survey

Through compliance with Section 110 of the National Historic Preservation Act (NHPA), the U.S. Department of Veterans Affairs (VA) has capitalized on evaluating, or re-evaluating, for the National Register of Historic Places (NRHP) more than 100 of its 152 medical centers over the past decade to better meet its primary mission. VA’s earliest survey investments actually predate Section 110: in 1971, just five years after passage of the NHPA, Executive Order 11593 expanded Section 106 consideration beyond only NRHP-listed resources and VA was the first agency to determine a federal property eligible for the NRHP during consultation for a project in Fort Meade, SD. By the time Section 110 was added to the NHPA in 1980, VA had undertaken a national survey of its hospitals, seeking formal determinations of eligibility from the Keeper of the NRHP (Keeper) for several dozen complexes and nominating the most architecturally distinctive ones. In addition, the Keeper determined all national cemeteries NRHP-eligible in 1981. The payback was more informed project development, as historic properties could be considered early in planning.... Read More →

 

By Andrea Ferster

As we approach the 50-year mark of the enactment of the National Historic Preservation Act (NHPA), the Preservation Leadership Forum has enlisted the help of preservation practitioners to take a close look at how the NHPA is used to protect historic places. Earlier this year we took a look at Section 106, and are now covering Section 110, a provision that requires federal agencies to establish a historic preservation program for the identification and protection of historic properties under their direct control or ownership. This third post looks at an important case regarding the judicial interpretation of Section 110(a).

View of the National Park Seminary West Campus. | Credit: Payton Chung via Flickr per  Creative Commons.

View of the National Park Seminary West Campus in 2011. | Credit: Payton Chung via Flickr per Creative Commons.

It is a legal maxim that there can be no wrong without a remedy.1 However, the judicial interpretation of Section 110(a) of the National Historic Preservation Act (NHPA) upends that maxim. Instead, in 1996, a federal court concluded that the courts lack effective remedial powers to enforce the mandatory stewardship obligations established by Section 110(a) and declined to take action to halt an agency’s “demolition by neglect” of the National Park Seminary Historic District in Forest Glen, Maryland.2 The question that remains is whether a preservation responsibility that is difficult or impossible to enforce in court can nonetheless be an effective tool for preservation. The ultimate preservation, rehabilitation and adaptive use of the historic properties at Forest Glen, notwithstanding the court’s inaction, suggest that Section 110(a) remains an important polestar for holding federal agencies accountable to meet their stewardship obligations under the NHPA.... Read More →