Preservation Laws, Regulations and Executive Orders
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- Historic Preservation Legislation/Federal Laws - GSA/PBS and NPS/PAD
- General Requirements
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Preservation Laws, Regulations and Executive Orders
This reference list includes a select preservation laws, regulations and executive orders compiled and annotated by GSA in 1981 and updated in 1993.
1. Federal Laws, Regulations, and Executive Orders
A. Antiquities Act of 1906, Public Law 59-209, 34 Stat. 225, 16 U.S.C., 431 et seq.
- The earliest legislation enacted to protect cultural resources
- Provides for the protection of historic or prehistoric remains or any object of antiquity on Federal lands.
- Establishes criminal sanctions for unauthorized destruction or appropriation of antiquities and authorizes scientific investigation of antiquities on Federal land.
B. Historic Sites, Buildings and Antiquities Act of 1935, Public Law 74-292, 49 Stat. 666, 16 U.S.C., 461 et seq.
- Declares as national policy the preservation of historic and prehistoric sites, buildings and objects of national significance.
- Directs the National Park Service to establish a mechanism for cataloging and identifying historic and archeological properties.
- As a result of this directive, the National Park System Advisory Board and the National Park Service Advisory Council were established.
C. Reservoir Salvage Act of 1960, Public Law 86-521, 74 Stat. 220, 16 U.S.C. 469 et seq.
- This act provides for the recovery and preservation of historical and archeological data, including relics and specimens, which might be lost or destroyed as a result of the construction of dams, reservoirs and attendant facilities and activities.
D. National Historic Preservation Act of 1966, Public Law 89-665, 80 Stat. 9l5, 16 U.S.C., 470 et seq., as amended by Public Law 91-243,Public Law 93-54, Public Law 94-422, Public Law 94-458, Public Law 96-199, Public Law 96-244, Public Law 96-515, Public Law 98-483, Public Law 99-514, Public Law 100-127, Public Law 102-575
- This act is the single most important law governing the policies of Federal agencies toward historic preservation.
- Section 101(a) in Title I of the act authorizes the Secretary of the Interior to expand and maintain a National Register of Historic Places for cultural resources.
- Section 106 in Title I outlines specifications required of Federal agencies to protect cultural resources, defined as any district, site, building, structure, or object included in the National Register. To satisfy these requirements, an Environmental Impact Assessment (E.I.A.) or Environmental Impact Statement (E.I.S.) must consider the effects of a proposed Federal undertaking on the resources.
- Section 108 in Title I establishes a Historic Preservation Fund.
- Section 110 in Title I makes Federal agencies responsible for the preservation and use of historic buildings, thereby complying with Section 106.
- Title II of the act establishes the Advisory Council on Historic Preservation to comment on Federal actions having an effect on cultural resources. The Advisory Council has implemented procedures to facilitate compliance with this section.
- Title III of the act authorizes the provision of a National Museum for the Building Arts to collect and disseminate information concerning the building arts.
- Title IV of the 1992 amendments to the act established a National Center for Preservation Technology and Training to promote research into and serve as a clearinghouse for information on historic preservation. The act outlines the purposes of the National Center, located at Northwestern State University of Louisiana in Nachitoches, Louisiana.
- The 1992 amendments also established a program whereby Native American tribes may assume the duties of the State Historic Preservation Officer, as well as nominate traditional properties to the National Register of Historic Places. The Secretary of the Interior is authorized to make grants to Indian tribes for the preservation of religious properties listed in the National Register.
- Title IV also complies with the Native American Graves Protection and Repatriation Act.
- In addition to expanding the national policy of historic preservation at the Federal level, it encourages preservation on the State and private levels, in part through grants for preparing comprehensive statewide surveys and plans for historic preservation.
E. Section 4(f) of the Department of Transportation Act of 1966, Public Law 89-670, 49 U.S.C. 1653(f)
- Declares the maintenance and preservation of land traversed by transportation lines a national policy goal.
- Prohibits the use of a historic site for federally funded transportation programs unless: (1) there is not a feasible alternative use for the site and (2) the program includes all possible planning to minimize potential harm to the resource.
F. National Environmental Policy Act of 1969, Public Law 91-190, as amended, 42 U.S.C. 4371 et seq.
- Declares a National Environmental Policy under which Federal agencies that are planning projects are compelled to assess the impact of their project on the environment. Included in the definition of "environment" are important historic and cultural aspects of our national heritage.
- Directs Federal agencies to consult with agencies such as the National Park Service and the Advisory Council on Historic Preservation as a part of the process to assess environmental impact of a project.
G. Executive Order 11593, "Protection and Enhancement of the Cultural Environment," 3 C.F.R. 559, 1971
- The second most important legal document aimed at ensuring the protection of cultural resources
- Requires all Federal agencies to survey properties under their jurisdiction and nominate appropriate candidates to the National Register of Historic Places. Until the surveys are completed and the nominations made, each agency must ensure that no resources that may be eligible for the National Register are inadvertently damaged, destroyed, or transferred. Whenever possible and economically feasible, any properties transferred are to be used "in a manner compatible with preservation objectives."
- If National Register properties will be unavoidably altered or destroyed as a result of Federal action, all agencies must provide for the recording of vital information in the appropriate NPS catalog.
- Federal agencies are required to institute procedures to assure that Federal plans and programs "contribute to the preservation and enhancement of non-federally owned sites, structures and objects of historical, architectural or archaeological significance."
- Also sets forth requirements for consultation and review of any Federal actions affecting properties that might be found eligible for the Register.
H. An Act to Facilitate the Preservation of Historic Monuments and Other Purposes (1972), 86 Stat. 503, 40 U.S.C. 484 (k)(3) et seq.
- Authorizes the GSA to convey to local public bodies at no cost historic surplus properties listed on the National Register and deemed appropriate by the Secretary of the Interior for preservation purposes.
I. Historical and Archeological Data Preservation Act of 1974, Public Law 93-291, 88 Stat. 174, 16 U.S.C. 469 et seq.
- Extends the requirements of the Reservoir Salvage Act of 1960 to all Federal or federally-assisted or -licensed construction projects.
- Places coordinating responsibility with the Secretary of the Interior and, for the first time, authorizes all Federal agencies to seek appropriations, obligate available funds, or reprogram existing appropriations for the recovery, protection, and preservation of significant scientific, prehistoric, or archeological resources.
- Agencies can either undertake these efforts themselves or transfer one percent of the total authorized appropriation for each project (over $50,000) to the Secretary of the Interior for such purposes.
J. Amtrak Improvement Act of 1974, Public Law 93-496, 45 U.S.C. 501
- Authorizes the Federal rail transportation agencies and the National Endowment for the Arts to dispense grants and technical assistance for the preservation of railroad passenger terminals and for their reuse as civic and cultural activity centers.
K. Public Buildings Cooperative Use Act of 1976, Public Law 94-541, 90 Stat 2505, 40 U.S.C. 611
- Encourages adaptive use of existing structures of architectural, historical or cultural interest; encourages multiple-use facilities on the site and shared-use facilities with the host community; and authorizes an alternative to new construction for Federal projects.
L. Section 8 of the General Authorities Act Amendments of 1976, Public Law 94-458, 16 U.S.C. 1 et seq.
- This act seeks to monitor the welfare of areas of national significance and to recommend those which may have potential for inclusion in the National Park System.
M. Section 9 of the Mining in the National Parks Act of 1976, Public Law 94-429, 16 U.S.C. 1908.
- Protects nationally significant property from irreparable damage due to surface mining activity.
N. Archaeological Resources Protection Act of 1979, as amended, Public Law 96-96, 16 U.S.C. 470aa et seq.
- Provides for the protection of archaeological resources on public lands and Indian lands from excavation and pillage.
- Seeks to foster exchange of archaeological information between governmental authorities, professional archaeologists and private individuals.
O. Regulations for the Protection of Historic and Cultural Properties, Advisory Council on Historic Preservation, 36 C.F.R., Part 800
- Issued by the Advisory Council on Historic Preservation, these regulations represent the most important document needed to perform an analysis of the environmental impact of a project on a cultural resource.
- Pursuant to Section 106 of the National Historic Preservation Act, Sections 1(3) and 2(b) of Executive Order 11593, and the President's Memorandum of July 12, 1978, "Environmental Quality and Water Resources Management," the Advisory Council sets forth regulations for their review of Federal undertakings that might affect either federally owned or leased or non-federally owned historic and cultural resources eligible for or listed in the National Register of Historic Places.
- The Council procedures define terms used in the National Historic Preservation Act; describe initial procedures for identifying cultural properties; restate the criteria for eligibility to the Register established by the Secretary of the Interior; establish criteria for determining the effect on the property of the Federal action; set forth procedures for Council review of the determination of effect; and define legal obligations for consultation, discussion of alternatives, and determination of mitigating measures.
P. Section 48(g) of the Internal Revenue Code of 1986, 90 Stat. 1519, as amended by 100 Stat. 2085, 26 U.S.C. 48(g)
- Establishes which certified historic structures can qualify for preservation tax incentives. To qualify for the tax incentives, a property owner must have certification of both the historic structure and the completed rehabilitation.
Q. Section 170(h) of the Internal Revenue Code of 1986, 90 Stat. 3204, 26 U.S.C. 170(h)
- Spells out the conditions under which charitable contributions of interests in historic property can qualify for income and estate tax deductions. In general, such donations are said to be "charitable contributions" only for conservation purposes.
R. Abandoned Shipwreck Act of 1987, Public Law 100-298, 43 U.S.C. 2101 et seq.
- Establishes the title of States in certain abandoned shipwrecks, including those in submerged lands eligible for inclusion in the National Register. The law of salvage and the law of finds shall not apply to such abandoned shipwrecks.
2. State Laws
The governors of all 50 states appoint State Historic Preservation Officers (SHPOs) under the provisions of the National Historic Preservation Act of 1966. This act, administered by the Office of Archeology and Historic Preservation of the National Park Service, also provides funds for states to prepare comprehensive statewide historic surveys and plans, and for other purposes. Most states have established programs to protect and preserve non-federally owned cultural resources through several legislative vehicles.
A. State antiquities codes: omnibus legislation providing protection for historic sites and objects. Generally established to protect relics, objects and sites discovered in archeological explorations, codes occasionally designate direct state control over historic properties and frequently stipulate penalties for violations.
B. State enabling legislation: provides legal authorization for designated political subdivisions to protect historic resources. The most pertinent acts for preservation are those dealing with historic easements, tax abatements and historic districts.
C. Historic easements: provide a legal technique for preservation property for public use by providing for public control over certain aspects of the property, thus protecting the character of historic places.
D. Tax abatements: empower county and municipal governments to pass ordinances to permit tax exemption on real property or on the public interest in real property.
E. Historic districts: created through county or local zoning ordinances to regulate exterior changes to buildings and structures in accordance with an overall comprehensive plan for maintaining the integrity of the historic district.
- Although Federal actions are not legally subject to local restrictions regarding new construction, GSA policy is to cooperate with local commissions.
3. Local Laws
A. Traditionally, cities have afforded protection to municipal properties through the creation of historic districts, art commissions, and ad hoc advisory boards. Today, many cities develop comprehensive preservation programs conducted by municipal landmarks commissions.
B. City landmark commissions generally perform regulatory, project planning, and advisory functions. The regulatory authority usually relies on the administration of a program that designates landmarks and landmark districts and permits their protection through mandatory design review procedures. These commissions have the power to prohibit the alteration, construction, reconstruction, or demolition of designated areas, sites, and structures. Commissions are often authorized to review and approve or disapprove proposed changes to the physical environment of designated sites and districts.
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