By Elizabeth Hughes, Director of MHT and State Historic Preservation Officer
Nationwide, preservation organizations are sounding the alarm regarding the impact of proposed changes to the National Register of Historic Places Program. The Maryland Historical Trust (MHT) has grave concerns about the proposed changes and their effect on the future of Maryland’s heritage. The changes are not finalized yet, and there is an opportunity for MHT and others to express their views. The National Park Service (NPS)—the agency which oversees the regulations governing this program—is seeking public input through April 30.
Established by the National Historic Preservation Act of 1966, the National Register of Historic Places is this country’s official list of places worthy of preservation. In Maryland alone, the National Register has 1,801 listings, including 255 historic districts, altogether comprising 108,523 contributing resources. Although inclusion in the National Register is largely honorific, this designation is the threshold for access to state and federal rehabilitation tax credits—a powerful tool for community revitalization. The National Register also plays an important role in ensuring that local communities have a voice when the federal government’s actions have the potential to impact historic resources. Federal agencies are required to consider the effects of their actions on National Register-listed or National Register-eligible properties and to engage with citizens concerned about the future of these non-renewable resources.
Among the various rule changes currently under consideration by NPS, one of greatest concern to MHT will provide federal agencies with unilateral and exclusive rights to nominate or refuse to nominate their properties to the National Register of Historic Places. This change to the National Register nomination process extends not only to the listing of historic properties but also to the process of determining whether or not federally-owned properties are even eligible for listing on the National Register of Historic Places.
The eligibility determination process is an essential step as agencies and state historic preservation offices, like the Maryland Historical Trust, work together to consider the effects of federal agency actions on historic properties through the Section 106 review process. Federal agencies take the lead in developing determinations of eligibility (DOEs) for properties under their care. DOEs are designed to be objective assessments of a property’s history and significance, uninfluenced by the nature or possible impacts of proposed projects.
Under the current National Register regulations, this process is typically collaborative, resulting in “consensus determinations” between the federal agency and MHT. Should a disagreement arise, the dispute is resolved by the Keeper of the National Register. Regardless of the Keeper’s ultimate determination, federal agency projects still proceed. The Section 106 process cannot stop federal agency undertakings from proceeding, it simply requires agencies to take into account the effects of their actions on historic properties.
Under the proposed rule, it would now be possible for federal agencies to refuse to acknowledge the existence of historic properties in their care and, with impunity, carry out projects that may damage or destroy historic buildings, landscapes, and archeological resources under their control. The rule as proposed undermines the role of the state and the Keeper of the National Register as impartial arbiters of eligibility determinations. It also prevents local governments, tribes, and non-profit organizations from providing input on how federal agency actions may impact historic resources. Under this new scenario, there is no system of checks and balances on federal agencies who, in certain cases, have a vested interest in determining that no historic properties will be impacted by their actions. In this way, state and local communities are blocked from commenting on the impact of federal agency actions in our own backyard.
This proposed rule erodes the most basic principle undergirding the origin of the National Historic Preservation Act. Crafted in response to urban renewal and transportation projects of the 1950s and 1960s, which excluded local communities from deliberations about federal actions and resulted in large-scale demolition of historic resources, the Act sought to give states and local communities a voice in federal decision-making. By cutting states, local governments, tribes and non-profit organizations out of the process of determining whether properties may be eligible for listing on the National Register, the proposed rule subverts the intent of the National Historic Preservation Act.
To learn more about this proposed rule or to provide a comment, go to: https://www.federalregister.gov/documents/2019/03/01/2019-03658/national-register-of-historic-places
Comments are due to NPS by 11:59 p.m. EST on April 30, 2019.