CSG Law Alert: Proposed National Park Service Rules May Lessen Historic Register Nominations

On March 1, 2019, the National Park Service proposed revisions (FR Document 2019-03658) to the regulations governing the National Register of Historic Places (“National Register”). The proposal is controversial and has sparked concern within the historic preservation community.

Pursuant to Section 106 of the National Historic Preservation Act, a Federal action that encroaches upon a National Register-listed historic property or a property eligible for such requires the Federal agency proposing the encroachment to work with the state historic preservation office, local governments and interested persons in an attempt to understand the public concerns about a project and accommodate them where appropriate.  The new proposal affects the National Register nomination process.

Under the current regulations, anyone, including the Keeper of the National Register, may nominate a property or district to the Keeper of the National Register for listing.  If the property owner objects, or for a district, if a majority of the owners object, the property or district will not be listed.  Under the proposed regulations, only the Federal Agency with jurisdiction or control of the property may nominate it to the National Register.  The proposed revisions also change the method of determining if a majority of the landowners object to nomination.  Pursuant to the proposal, a majority will not be based on one landowner/one vote.  Instead, a majority will be based on a majority of the land area proposed for inclusion in the historic district.

Preservationists are concerned that, in some instances, Federal agencies will refuse to nominate their historic properties to the National Register.  Preservationists also believe the proposed revisions will likely result in a reduction of nominations to the National Register or determinations of eligibility for listing.  The preservationists also are concerned that Federal agencies will be less likely to avoid projects that encroach upon their unlisted historic properties.  A major concern is that the exclusion of a Federal agency building, such as a post office, from a potential historic district may have a cascading influence on other property owners’ willingness to have their properties included in a National Register-listed historic district.

Comments concerning the proposed revisions must be submitted to the National Park Service by April 30, 2019.

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