A Significant Connection: Sections 110(a) and 110(f)

By Special Contributor posted 07-08-2015 14:56

By Dena Sanford

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 second post looks at the link between Section 110(a) and 110(f).
St. John’s Group Camp at St. Croix State Park, MN, in 2011. | Credit: Brian Pisare
Included among the many responsibilities Section 110 of the National Historic Preservation Act (NHPA) places on federal agencies is the mandate to preserve, protect and use historic properties under their ownership or control, and to give even greater preservation consideration to National Historic Landmarks (NHLs)—those special places that have exceptional value in illustrating or commemorating the heritage of our country. More specifically, Section 110(a) requires that each federal agency, “to the maximum extent feasible,” use historic properties available to them. It also requires the establishment of a preservation program to identify, protect and preserve historic properties in consultation with others; to manage and maintain such properties with consideration for the preservation of their significant values—particularly those that are nationally significant; and to establish procedures to implement Section 106 consistent with the Advisory Council on Historic Preservation (ACHP) regulations.

In Section 110(f) Congress specifically requires federal agencies to give NHLs special consideration in their planning processes, minimizing direct and adverse harm “to the maximum extent possible.” Agencies are further required to provide the ACHP an opportunity to comment on any undertakings. Because of the Department of the Interior/National Park Service responsibility in designating and promoting the protection of NHLs (codified in 54 U.S.C. §§ 302102-302103, 36 C.F.R. § 65), agencies are also required to consult with the Secretary of the Interior via the National Park Service when a proposed action may have an adverse effect on an NHL (36 C.F.R. § 800.10(c)).

Federal agencies are directed to give NHLs a higher standard of care than their programmatic cousins listed on or eligible for the National Register of Historic Places. This is not to say that NHLs are in some measure better; rather, it reflects the relative rarity of NHLs, and a longstanding federal commitment to preserve “for the benefit and inspiration of the people of the United States” such nationally significant resources. So states the Historic Sites Act of 1935, which initiated the process of identifying and recognizing nationally significant resources. Today there are just over 2,500 NHLs, compared to about 90,540 listings on the National Register. Per the NHPA, NHLs are also automatically listed on the National Register (54 U.S.C. § 302102(a)).

The number of properties designated as NHLs, or listed on or eligible for listing on the National Register, increases annually. Therefore, every year all federal agencies have the potential to expand historic preservation opportunities into their ongoing agency programs. That the agencies are not unilaterally required to do so is afforded by the qualifiers “to the maximum extent feasible” and “to the maximum extent possible.”

 Work at Taliesin in Spring Green, WI in 2015. | Credit: Ryan Hewson, Collection and Preservation Project Manager Frank Lloyd Wright Foundation
Work at Taliesin in Spring Green, WI, in 2015. | Credit: Ryan Hewson, Collection and Preservation Project Manager, Frank Lloyd Wright Foundation
Given the particular importance of NHLs, how do we measure what is possible or feasible? The default answer is that it depends on the agency, its mission, operations, economics, the action under consideration, staff experience, and any number of competing and equally important program demands. But it also depends on the interest and participation of those involved in the consultation process. These stakeholders can have a profound influence on the final preservation treatment of NHLs, often in ways that none of the parties had originally envisioned.
One such example is the collaboration established by the Environmental and Historic Preservation group of the Federal Emergency Management Agency (FEMA), in support of funding repair work on 60 structures damaged by storm-toppled trees within the St. Croix Recreation Demonstration Area NHL in Minnesota. Working with the Minnesota State Division of Homeland Security, the Minnesota Department of Natural Resources, the Minnesota State Historic Preservation Office (SHPO) and the National Park Service (NPS), in 2011 FEMA facilitated an expeditious consultation process that grouped properties by severity of damage and project treatment types. The work ensured a sensitive and orderly restoration of a number of buildings that may otherwise have been consigned to the bulldozer.

The Federal Highway Administration, the Wisconsin Department of Transportation (DOT), the SHPO, the NPS, property owners and other interested parties grappled with impacts of the DOT’s proposal to resurface a highway through the Taliesin NHL in Spring Green, Wisconsin, in 2013. The associated new extension of guard rails was mitigated through design, additional vegetative screening, and a reduction of the number of signs within the NHL. Also precedent setting was the attachment of non-elevated, solid gold-colored signs at the ends of the extended guard rails. These signs are smaller than the standard black and yellow “tiger board” signage usually required for such work. All together, these actions reduced impacts on Taliesin’s serene landscape.
At a much greater scale and level of complexity was the consolidation of headquarters operations for the Department of Homeland Security within the St. Elizabeths Hospital NHL campus in Washington, D.C. While ultimately the project was laudable for its extensive reuse of historic properties within the NHL, the extent of new development proposed came under fire by the consulting parties in 2005-2006. The General Services Administration (GSA), the lead agency, consulted with 16 parties, including the DHS, the Council, the NPS, the SHPO, the National Capital Planning Commission, the Commission of Fine Arts, the Federal Highway Administration, the District of Columbia government, the National Trust, and a number of interested neighborhood and preservation-related organizations. In consultation, GSA ultimately agreed to minimize adverse effects by reducing the scale of proposed new construction, and isolating it from the historic building core.

 St. Elizabeths West Campus, Atkins Hall Window Restoration” | Credit: U.S. General Services Administration
St. Elizabeths West Campus, Atkins Hall Window Restoration | Credit: U.S. General Services Administration
The final executed 2008 Programmatic Agreement (PA) mitigates adverse effects to both the NHL and the adjacent Shepherd Parkway by GSA’s commitment to reuse over 90 percent of existing historic structures. The PA required development of a number of documents, including preservation guidelines, landscape management and archaeology plans, an interpretive plan, a perpetual care plan for the site’s Civil War-era cemetery, a historic district brochure, a book-length history on St. Elizabeths, and extensive HALS/HABS documentation. The PA also stipulated creation of a public access program for the secure campus, an oral history project, conservation and digitization of drawings and photos for donation to the Library of Congress, creation of a museum/visitor education center, and engagement with a vocational high school training academy. As part of ongoing consultation, new mitigation measures are being negotiated as part of proposed rehabilitation of the hospital’s Kirkbride-designed Center Building.

Connecting Sections 110(a), 110(f), and 106 can be complex and challenging. But the preservation benefits can be rewarding. Resolution might set new federal agency standards for a process to protect NHLs; it might result in agency reuse of a facility initially considered obsolete; it might produce creative mitigation solutions. It can also ensure that a costly planning process can proceed without the potential for citizen litigation.

Dena Sanford is the architectural historian for the History and National Register Programs in the Midwest Regional Office of the National Park Service.

The views and conclusions expressed in this post are those of the author and should not be interpreted as representing the opinions of the National Park Service or the United States government.

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