Forum Connect

What is an Undertaking?

  • 1.  What is an Undertaking?

    Posted 04-22-2018 11:21
    On October 15, 1966, Congress enacted The National Historic Preservation Act ("NHPA" or "Act") to encourage historic preservation in the United States in federal and federally assisted projects (Public Law 89-665). It is important to bear in mind that the word "Section" is contextual, it can be in reference to the Act or in reference to a section of the United States Code. For a concise explanation of acts and their codification, please see United State Code [https://en.wikipedia.org/wiki/United_States_Code#Codification].

    The 8 Occurrences of "Undertaking"



    The word "undertaking" appears 8 times within the Act; seven times as a noun and one time as a verb.

    The noun form of "undertaking" appears five times in Section 106 which provides:

    Sec. 106. The head of any Federal agency having direct or indirect
    jurisdiction over a proposed Federal or federally assisted undertaking
    in any State and the head of any Federal department or independent
    agency having authority to license any undertaking shall, prior
    to the approval of the expenditure of any Federal funds on the undertaking
    or prior to the issuance of any license, as the case may be, take
    into account the effect of the undertaking on any district, site, building,
    structure, or object that is included in the National Register. The
    head of any such Federal agency shall afford the Advisory Council on
    Historic Preservation established under title II of this Act a reasonable
    opportunity to comment with regard to such undertaking.


    The noun form of "undertaking" appears twice in Section 105 which provides:

    Sec. 105. The beneficiary of assistance under this Act shall keep such
    records as the Secretary shall prescribe, including records which fully
    disclose the disposition by the beneficiary of the proceeds of such
    assistance, the total cost of the project or undertaking in connection
    with which such assistance is given or used, and the amount and nature
    of that portion of the cost of the project or undertaking supplied by
    other sources, and such other records as will facilitate an effective
    audit.

    The verb form of "undertaking" appears once in the preamble of the Act:
    AN ACT
    To establish a program for the preservation of additional historic properties
    throughout the Nation, and for other purposes.
    Be it enacted by the Senate and House of Representatives of the
    United States of America in Congress assembled,
    The Congress finds and declares-
    ...
    (d) that, although the major burdens of historic preservation
    have been borne and major efforts initiated by private agencies
    and individuals, and both should continue to play a vital role, it is
    nevertheless necessary and appropriate for the Federal Government
    to accelerate its historic preservation programs and activities,
    to give maximum encouragement to agencies and individuals
    undertaking preservation by private means, and to assist State
    and local governments and the National Trust for Historic Preservation
    in the United States to expand and accelerate their historic
    preservation programs and activities.

    History of The Code


    After its enactment, the NHPA was codified under Title 16 "Conservation" of the United States Code. Section 106 was codified as 16 U.S.C. 470f. Thus, the body of reported Federal decisions reference Section 106 of the Act citing section 470f of the United States Code. On December 19, 2014, the NHPA was moved to a different section of the United States Code, specifically Title 54 "NATIONAL PARK SERVICE AND RELATED PROGRAMS, Subtitle III - National Preservation Programs, DIVISION A - HISTORIC PRESERVATION, CHAPTER 3001 – POLICY" pursuant to 128 STAT. 3094 PUBLIC LAW 113–287  " - The purpose of this Act is to codify certain existing laws relating to the National Park System as title 54, United States Code, ``National Park Service and Related Programs''.".  In other words, NHPA was "recodified" in 2014. NHPA is now codified as 54 U.S.C. 306108

    The correct current citation to Section 106 of the Act is 54 U.S.C. 306108. When reading federal decisions published prior to 2015, one needs to keep in mind this recodification and that references to 470f should be mapped to 54 U.S.C. 306108.

    The purpose of this Topic

    I have been seeing various uses of the word "exemption" and "exempt" and felt it might be helpful to create a topic on this forum that simply addresses the word "undertaking" as it is used in Section 106 of the Act. The word "exempt" and "exemption" do not appear within the Act, so reference will need to be made to other authorities as to actual exemptions or implied exemptions. What constitutes an undertaking seems to be debatable, so this forum topic could house the various interpretations, if any, as published by judicial decisions, agencies, and/or councils, e.g. The Advisory Council on Historic Preservation.

    I'm new to the NHPA and this area of law (as well as this forum) and hope to update this topic with findings from my research and encourage others to contribute. For example, the decision Lee v. Thornburgh, 278 U.S.App.D.C. 265 (1989) references the Congressional Record citing to 126 Cong.Rec. 29,831, 30,194 (1980), so this topic looks ripe for some thorough research which all forums members could benefit from and share within the confines of this forum.

    ------------------------------
    John Poole
    jlpoole56@gmail.com
    Salem OR
    ------------------------------


  • 2.  RE: What is an Undertaking?

    Posted 04-23-2018 11:22
    Hi John,

    Speaking of research on the topic of Section 106, I'd love to learn more about how the implementing rule (i.e., 36 CFR 800) was created. When was the first iteration created and what happened during the public comment period? Who commented? How many? What did the overall process look like?






  • 3.  RE: What is an Undertaking?

    Posted 05-01-2018 17:40
    Alas, my foray into the Library of Congress for material on this is being hindered with such things as items only being available if you are physically present in the building. Not all I had hoped might be online is online. Were I in Washington D.C., things could progress more quickly. I'm still awaiting a reply from the Library of Congress ("LOC") on the best approach to researching this and their suggestions as to what might be available digitally, it's been more than five days.  I did find some pages maintained by the LOC and will have to spend some time digesting them.

    I'd like to get a handle on the Act first before exploring the Regulations. I may have bitten off more than I can chew.

    ------------------------------
    John Poole
    jlpoole56@gmail.com
    Salem OR
    ------------------------------



  • 4.  RE: What is an Undertaking?

    Posted 06-22-2018 17:51
    Hi,

    On the question of whether a planning/(re)zoning exercise is an undertaking, I agree with Patrick Thrush, Laura Sadowsky, & Tamara Tracy.  Whether this planning activity is subject to Section 106 really hinges on the word "effect," defined at 36 C.F.R. @800.16(i).  Only effects on the significant physical characteristics of the resource will be considered when evaluating whether an activity is subject to Section 106.  Because planning is unlikely to have an effect on the significant physical characteristics of a historic resource, it will not likely be subject to Section 106.

    For those of you interested in this topic and near a public law school library, check out for free (not trying to sell books!) Historic Preservation Law in a Nutshell.  We devote 10 pages alone to the cases/regs involving the definition of "undertaking" - it's one of the most litigated terms in federal historic preservation law.

    Have a nice weekend,
    Sara Bronin

    ------------------------------
    Sara C. Bronin
    Thomas F. Gallivan Chair of Real Property Law
    Faculty Director, Center for Energy & Environmental Law
    University of Connecticut School of Law
    Chair, Connecticut Trust Historic Preservation
    Twitter: @sarabronin
    ------------------------------