Appendix II:

Federal Legislation Affecting Historic Preservation

A large number of Federal laws affect historic preservation in various ways-by authorizing Federal support for preservation programs, by establishing such programs and defining their functions, by establishing procedures relevant to different kinds of preservation activities, and by creating particular opportunities for the preservation of different kinds of resources. This appendix briefly outlines the major pertinent legislation in existence as of 1985, with particular attention to the statutes most directly pertinent to local historic preservation programs.

Since Federal law is constantly changing, communities interested in current information on applicable statutes should check with their State Historic Preservation Officer rather then relying on the following information to be comprehensive.

Statutes directly pertinent to local preservation programs

National Historic Preservation Act of 1966, as amended (Public Law 89-665) 16 U.S.C. 470-470w

This Act is the centerpiece of the national historic preservation program. As amended in 1980, it authorizes the Secretary of the Interior to expand and maintain the National Register of Historic Places, and establishes procedures for doing so; provides for gubernatorial appointment of State Historic Preservation Officers and specifies their duties; specifies how local governments are to be certified for participation in the program; authorizes grants-in-aid by the Secretary of the Interior to States and local governments for preservation purposes; sets forth responsibilities for Federal agencies in historic preservation; establishes the Advisory Council on Historic Preservation and specifies its responsibilities; and directs the Secretary of the Interior and the Advisory Council to conduct various studies and provide various types of guidance and regulations. Section 106 of the Act requires Federal agencies to consider the effects of their activities on historic properties, and to give the Advisory Council an opportunity to comment on such activities. Importantly for local communities, as amended in 1980, the Act also provides for the certification of local historic preservation programs for special participation in the activities authorized by the Act.

The full text of the Act with all amendments, in a convenient brochure form, can be obtained free of charge from the Advisory Council. Pertinent regulations implementing various portions of the Act include 36 CFR Part 60, dealing with National Register nominations and determinations of eligibility, 36 CFR Part 61, providing procedures for approved State and local government historic preservation programs, and 36 CFR Part 800, providing procedures for compliance with Section 106.

Federal Tax Law

Federal tax law supports historic preservation in two major ways. First, investment tax credits are provided for the substantial rehabilitation of historic commercial, industrial, and rental residential buildings, provided that both the historic significance of the building and the professional quality of the rehabilitation have been certified by the Secretary of the Interior. Second, the law permits income and estate tax deductions for the charitable donation of interest in historic properties, including certified historic structures and land areas (e.g., archeological and other historic sites).

The availability of investment tax credits for historic rehabilitation has been a major factor in engendering financial support for many local historic preservation programs, and has been important in defining survey priorities in many cases. Recent tax legislation supporting historic preservation has included the Tax Treatment Extension Act of 1980, Economic Recovery Tax Act of 1981, Tax Equity and Fiscal Responsibility Act of 1982, and Tax Reform Act of 1984. Changes to the tax laws occur frequently, and current information should be obtained from the State Historic Preservation Officer or the National Park Service when considering how Federal tax law may affect a particular program at a particular time.

National Environmental Policy Act of 1969 (Public Law 91-190) 42 U.S.C. 4321 et seq. (1970)

This legislation obligates Federal agencies to consider the environmental costs of their projects as part of the Federal planning process. It provides for the preparation and review of environmental assessments and impact statements during the planning of projects.

The Council on Environmental Quality promulgates regulations for implementation of this act; these are found at 40 CFR Part 1500 and subsequent sections of the Code of Federal Regulations.

Housing and Community Development Act of 1974, as amended (Public Law 93-333 as amended) 42 U.S.C. 5300 et seq.

Like the tax laws, the housing and community development laws change frequently, and since 1974, many provisions have been included that affect historic preservation. In 1974, the existing law was changed to combine a number of categorical grant programs into a single program under which the Department of Housing and Urban Development (HUD) provides Community Development Block Grants (CDBG) to local governments, which have broad discretion in their use. CDBG funds can be used to support historic preservation activities, as well as activities that may damage historic properties. The 1974 act also authorized HUD support for programs of urban homesteading, which can provide the basis for rehabilitation of historic residential buildings. Subsequent amendments created such special grant programs as the Urban Development Action Grant (UDAG) and Housing Development Action Grant (HODAG) programs.

Among the unusual features of the Housing and Community Development Act, as amended, are the fact that CDBG funds can be used as though they were non-Federal funds to match historic preservation grants from the Department of the Interior, and the fact that, for purposes of the CDBG, UDAG, and HODAG programs, the local government that receives the grants, not the Department of Housing and Urban Development, is responsible for compliance with the National Environmental Policy Act and Section 106 of the National Historic Preservation Act. Special provisions dealing with historic preservation were included in amendments dealing with the UDAG and HODAG programs, and have resulted in special regulations published by the Advisory Council on Historic Preservation at 36 CFR Part 801 (dealing with UDAG) and by HUD at 24 CFR Part 850 (HoDAG).

Participation in a local government's housing and community development program, including the provision of planning assistance in its compliance with the National Environmental Policy Act and Section 106 of the National Historic Preservation Act, is an important activity for many local preservation programs, which provides a context for the application of survey data to local planning.

Statutes that may provide special opportunities for local preservation programs

"Surplus Real Property Act," 1972 Amendment to the Federal Property and Administration Services Act of 1949 (Public Law 92-362) 40 U.S.C. 484(K)(3)

This act authorizes the General Services Administration to convey approved surplus Federal property to any State agency or municipality free of charge, provided that the property is used as a historic monument for the benefit of the public. To qualify for this provision, the structure must be included or eligible for inclusion in the National Register. This act is also applicable to revenue-producing properties if the income in excess of rehabilitation or maintenance costs is used for public historic preservation, park, or recreation purposes and the proposed income producing use of the structure is compatible with historic monument purposes, as approved by the Secretary of the Interior. The act includes recapture provisions under which the property would revert to the Federal government should it be used for purposes incompatible with the objective of preserving historic monuments.

Public Buildings Cooperative Use Act of 1976 (Public Law 94-541) 90 STAT. 2505, 40 U.S.C. 175

This act makes it national policy to acquire structures of historic or architectural significance for Federal office buildings, to encourage the public use of such buildings by accommodating commercial, cultural, educational, and recreational uses of them both during and outside regular Federal working hours, and to provide the handicapped access to them.

AMTRAK Improvement Act of 1974 (Public Law 93-496) as amended by the Rail Transportation Improvement Act of 1976 (Public Law 94-555) 45 U.S.C. 501

These acts authorize the Department of Transportation and the National Endowment for the Arts to develop National Register listed railroad stations for use as inter-modal transportation centers, or civic or cultural centers, while preserving their historic integrity.

Emergency Home Purchase Assistance Act of 1974 (Public Law 93-449) 12 U.S.C. 1723e

This act authorizes Federal insurance for loans to finance the restoration or rehabilitation of residential structures listed in or eligible for the National Register.

The Department of Transportation Act of 1966 (Public Law 89-670) 23 U.S.C. 138

Among other things, this act directs the Secretary of Transportation not to approve any program or project that requires the use of land from a historic site of national, State, or local significance as determined by Federal, State, or local officials having jurisdiction thereof unless 1) there is no feasible and prudent alternative to the use of such land, and 2) such program includes all possible planning to minimize harm to such historic property. This means that the Federal

Highway Administration, the Federal Aviation Administration, the Urban Mass Transportation Administration, and the U.S. Coast Guard must give special consideration to the potential effect of their projects on historic resources whether or not the historic resource affected is in or determined to be eligible for the National Register.

Archeological and Historic Preservation Act of 1974 (Public Law 93-291) 16 U.S.C. 469a-c

This act provides for the recovery of archeological data that would otherwise be lost as the result of Federal construction or other federally licensed or assisted activities. It authorizes Federal agencies to recover such data when their activities will lead to its loss, and authorizes the Secretary of the Interior to conduct such recovery operations on behalf of other agencies and where such agencies do not do so themselves.

Archeological Resources Protection Act of 1979 (Public Law 96-95) 16 U.S.C. 470aa-11

This act prohibits the unauthorized disturbance of archeological resources on Federal and Indian lands, prescribes criminal penalties for such disturbance, and authorizes the establishment of regulations setting forth procedures for obtaining permits. Significantly for local preservation programs, it also prohibits interstate traffic in antiquities obtained illegally from any lands, public or private, providing a basis for prosecution in the Federal courts of parties who excavate archeological material in contravention of local statutes or trespass laws and move such material across State lines.

Federal authorities of secondary interest to local preservation programs

Antiquities Act of 1906 (Public Law 59-209) 16 U.S.C. 431-33 (1970)

This act authorizes the President to designate National Monuments and provides for the protection of historic and prehistoric ruins and objects of antiquity located on Federal lands.

Historic Sites Act of 1935 (Public Law 74-292) 16 U.S.C. 461-67 (1970)

This act gives the Secretary of the Interior the power to make historic surveys and to document, evaluate, acquire, and preserve archeological and historic sites across the country.

Executive Order 11593, Protection and Enhancement of the Cultural Environment, 16 U.S.C. 470 (Supp. 1, 1971)

This order directs Federal agencies to take leadership in preserving, restoring, and maintaining the historic and cultural environment of the Nation. Federal agencies must survey, inventory, and nominate all historic resources under their jurisdiction or control (to the extent that the agency substantially exercises the attributes of ownership) to the National Register. Until these processes are completed, agency heads must exercise caution to assure that potential qualified Federal property is not inadvertently transferred, sold, demolished, or substantially altered. Many of the provisions of this order were incorporated into the National Historic Preservation Act by amendments in 1980.