Historic Preservation: Federal Laws and Regulations Related to Hurricane Recovery and Reconstruction
CRS Report for Congress
Historic Preservation:
Federal Laws and Regulations Related to
Hurricane Recovery and Reconstruction
Douglas Reid Weimer
Legislative Attorney
American Law Division
Summary
Various federal laws and related regulations provide guidance for the preservation
of historic properties, objects, historic areas, and battlefields. While many of these laws
and regulations impose specific responsibilities for the preservation and maintenance
of historic properties and objects, there are often exceptions to these obligations. These
exceptions may be implemented in order to deal with emergency and/or natural disaster
situations. In the aftermath of Hurricanes Katrina and Rita and the destruction
experienced in the Gulf Region, these preservation laws and their exceptions may
provide some guidance for the recovery and reconstruction of hurricane-impacted areas.
This report summarizes relevant federal laws and regulations related to historic
preservation and the exceptions to these laws and regulations. In addition, FEMA’s
Environmental, Historic Preservation, and Cultural Resources Program is outlined.
Federal Historic Preservation Laws and Regulations That May be
Relevant to Hurricane Recovery and Reconstruction1
Federal Dam Construction.2 Federal law requires the preservation of “historical
and archeological data (including relics and specimens)” that might be lost or destroyed
through flooding, relocation of roads, terrain alterations, and other construction-related3
activities. The law requires that when such data or objects are threatened by federal
construction projects, there is to be undertaken the survey, recovery, preservation, and
1 This report does not consider state or local laws, ordinances, or regulations that may affect
historic properties and objects and that may be relevant in the hurricane recovery and
reconstruction efforts.
2 16 U.S.C. §§ 469 to 469c-2.
3 Id. § 469.
Congressional Research Service ˜ The Library of Congress
protection of such data.4 Specifically, a survey is to be undertaken by the Secretary of the
Interior where “scientific, prehistorical, historical, or archeological data” may be lost or
destroyed by any federal or federally assisted licensed project, activity, or program.5
However, an exception to these survey and recovery requirements exists in cases of
“emergency projects.”
(b) Emergency projects
No survey or recovery work shall be required pursuant to this section which, in the
determination of the head of the responsible agency, would impede Federal or
federally assisted or licensed projects or activities undertaken in connection with any
emergency, including projects or activities undertaken in anticipation of, or as a result6
of, a natural disaster.
American Battlefield Protection Program.7 The American Battlefield
Protection Act of 19968 provides assistance and funding for the preservation of sites
where significant historic battles occurred.9 The act does not impose specific duties or
responsibilities on individuals or public entities for the preservation of battle sites, but
provides technical and financial assistance for the maintenance, interpretation, and
protection of such sites.
Loan Insurance Program for Preservation of Property Included on the10
National Register. The Secretary of the Interior is authorized to maintain a program
which, upon the application of a private lender, will insure loans made by such lender to
finance any project for the preservation of a property which is included on the National
Register of Historic Places.11 There are various loan qualifications12 and other13
requirements.
4 Id. § 469a-1.
5 Id. § 469a-2(a).
6 Id. § 469a-2(b).
7 Significant battles occurred in the Gulf Region during the War of 1812 and during the Civil
War.
8 16 U.S.C. § 469k.
9 Id. § 469k(c).
10 16 U.S.C. § 470d (a).
11 The National Register of Historic Places is the nation’s official list of cultural resources worthy
of preservation. It was authorized under the National Historic Preservation Act of 1966. The
National Register is part of a national program to coordinate and support public and private
efforts to identify, evaluate, and protect our historic and archeological resources. Properties
listed in the National Register include districts, sites, buildings, structures, and objects that are
significant in American history, architecture, archeology, engineering, and culture. The National
Register is administered by the National Park Service, a part of the U.S. Department of the
Interior. See [http://www.natonalregisterofhistroicplaces.com].
12 16 U.S.C. § 470d (b).
13 The loan insurance program does not have specific statutory provisions for dealing with
(continued...)
Effect of Federal undertakings upon Property Listed in the National
Register.14 The head of any federal agency having jurisdiction over any federally
assisted project is required to assess the impact that such federal project will have on “any
district, site, building, structure, or object that is included in or eligible for inclusion in15
the National Register.” The federal agency head is required to afford the Advisory
Council on Historic Preservation an opportunity to comment on such undertakings. The
purpose of this review process is to minimize the potential impact of federal projects on
historic properties, neighborhoods, and landscapes.
Regulations promulgated by the Advisory Council on Historic Preservation provide16
for agency responses to emergency situations. Federal agencies are encouraged to
develop procedures for taking historic properties into account during operations in17
response to a disaster or emergency declared by the President. Provision is also made
when agencies have not developed such procedures.18 However, the federal agencies are
not necessarily relieved from their oversight responsibilities during their responses to
emergency situations.
Historic Properties Owned or Controlled by Federal Agencies.19 Federal
statutes outline the responsibilities of the federal agencies in dealing with the
identification, evaluation, nomination of properties to the National Register of Historic
Places,20 and the protection of such properties.21 Provision is made for the waiver of these
responsibilities in the event of a natural disaster or of a threat to national security.
Waiver of provisions in the event of natural disaster or imminent threat to
national security
The Secretary [of the Interior] shall promulgate regulations under which the
requirements of this section may be waived in whole or in part in the event of a major22
natural disaster or an imminent threat to the national security.
Such regulations have been promulgated for the waiver of federal agency
responsibilities.23 The regulations define a “Major Natural Disaster.”
13 (...continued)
emergency or disaster conditions.
14 16 U.S.C. § 470f. See note 11.
15 Id.
16 36 C.F.R. § 800.12,
17 Id. § 800.12(a).
18 Id.§ 800.12(b).
19 16 U.S.C. § 470h-2.
20 See note 11.
21 16 U.S.C. § 470h-2.
22 Id. § 470h-2(j).
23 36 C.F.R. § 78.
Major Natural Disaster means any hurricane, tornado, storm, flood, high water, tidal
wave, earthquake, volcanic explosion, or other catastrophe, in any part of the United
States which, in the determination of a Federal Agency Head, causes damage of
sufficient severity and magnitude such that an emergency action is necessary to the
preservation of human life or property, and that such emergency action would be
impeded if the Federal Agency were to concurrently meet its historic preservation
responsibilities under section 110 of the National Historic Preservation Act, as24
amended.
The regulations provide for the agency’s decision to waive responsibilities25 and notice
requirements.26 Provision is made for a review of the agency’s decision by the Secretary
of the Interior.27
Other Federal Regulations. Other federal regulations have been promulgated
by the National Park Service, an agency of the Department of the Interior, which permit
the removal of sites and properties from certain designations, if the site or property has
been substantially altered, as by a natural disaster.
36 C.F.R. § 60.156. Provides for the removal of properties from the National
Register of Historic Places. Grounds for the removal of such properties are set out as well
as the procedure for the removal of such properties from the Register.
The regulations provide for criteria for the removal of the property and the process by
which the property is removed from the registry.
36 C.F.R. § 65.9. Provides for the withdrawal of a National Historic Landmark
designation. Justifications are provided for the withdrawal of the property and procedures
are set out for its withdrawal from such designation.
FEMA Programs Related to Historic Preservation
The Federal Emergency Management Agency (FEMA) is a former independent
agency that became part of the new Department of Homeland Security in March 2003.
FEMA is responsible for responding to, planning for, recovering from, and mitigating
against disasters.28
FEMA has organized an Environmental and Historic Preservation and Cultural
Resources Program (“Program”).29 The goal of this program is to integrate the
consideration of historic properties and cultural resources into FEMA’s mission of
24 Id. § 78.2.
25 Id. § 78.3.
26 Id. § 78.4
27 Id. § 78.5.
28 See [http://www.fema.gov/about/history.shtm].
29 See [http://www.fema.gov/ehp/ehp_katrina.shtm].
response, recovery, and mitigation. The Program has devised a three step model — based
on FEMA’s mission — to assist in the recovery from Hurricane Katrina.30
Respond and Salvage. In dealing with hurricane clean up, it is essential to
consider emergency response and salvage activities that will help to protect precious
collections and significant records and to save damaged objects.
Recover. A list of resources to assist in the hurricane recovery has been prepared
and is on the website.31
Mitigate. A list of programs and other resources has been prepared to assist
communities recovering from hurricane damage to address the specific needs of historic
properties and cultural resources.32
Other Considerations
This report has outlined the basic laws and regulations, some of which provide
exemptions or exceptions to federal historic preservation requirements in situations33
involving natural disasters.
The National Park Service (NPS) of the Department of the Interior (DOI) has been
closely involved in responding to hurricane damage to national parks. The NPS
dispatched incident management teams (IMTs) to respond to damage at the Everglades
National Park, the Gulf Islands National Seashore, and at various parks and historic sites34
in the impacted areas The role of the teams is to assess the health and welfare of the
NPS employees, assess damage to the parks, and begin recovery to make the parks35
operational. Various NPS employees have been called out in support of FEMA, the
DOI, and other agencies involved in recovery operations.36
Before public or private entities begin substantial salvage and/or reconstruction
efforts on historic sites, they may also wish to consult the following entities:
State Historic Preservation Officer (SHPO). The SHPO is the state historic
preservation office, a state agency created by the National Historic Preservation Act. It
30 Presumably, this same program would be applicable to the recovery from Hurricane Rita.
31 See [http://www.fema.gov/ehp/ehp_katrina.shtm].
32 Id.
33 The Department of the Interior (Office of Executive Secretariat, Office of Congressional and
Legislative Affairs, Office of the Solicitor, and Office of Environmental Policy and Compliance)
has reported that at the current time, neither the Secretary nor any agency within the Department
has received a request for exemption from federal preservation statutes or regulations — in the
aftermath of Hurricanes Katrina and Rita.
34 See NPS website “National Park Service Incident Management Teams Respond to Areas
Devastated by Hurricane Katrina” at [http://data2.itc.nps.gov/release/Detail.cfm?ID=610].
35 Id.
36 Id. The website contains as assessment of damage to NPS sites and staff deployed to the area.
identifies, evaluates, registers, and protects each state’s historic properties. In addition,
SHPO refers to the officer in charge who coordinates preservation in his/her state and
serves as a liaison between state and federal preservation activities. Every state has a
SHPO — the office and the officer. Often times, the SHPO serves in an advisory capacity
to communities and to private property owners on issues concerning historic properties.37
Advisory Council on Historic Preservation (ACHP). The ACHP is an
independent federal agency that promotes the preservation, enhancement, and productive
uses of America’s historic resources, and advises the President and Congress on national
historic preservation policy.
FEMA’s Historic Preservation and Cultural Resources Program.38
Local Historical Groups and Private Historical Foundations. These
groups may be able to provide assistance and advice. They may have specialized
knowledge of local culture and history. For example, the website of the Mississippi
Heritage Trust has extensive resources dealing with hurricane damage, recovery, and
related issued.39
National Trust for Historic Preservation. The National Trust for Historic
Preservation is a private nonprofit membership organization whose goals are to save40
historic places and to revitalize American communities. The National Trust has
established a web “disaster assistance package” to assist in the Gulf Coast Recovery.41
37 A listing of all state SHPOs is available at [http://grants.cr.nps.gov/shpos/shpo_search.cfm].
38 See discussion above.
39 See [http://www.mississippiheritage.com/HurricaneKatrina.html].
40 See [http://www.nationaltrust.org/hurricane/disaster_assistance_package.pdf].
41 Id.