GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2024

Status

Accepted

Abstract

Federal historic preservation standards developed by the Department of the Interior have become central to preservation practice. This report examines their application and interpretation and makes recommendations for improvement. As Part I details, these standards were created in the 1970s pursuant to the National Historic Preservation Act of 1966 and have been evolving ever since. Although originally written for programs administered by the Department, these standards have taken on a life of their own. As Part II outlines, they are embedded in key federal, state, and local regulatory processes, and they have thus been applied and interpreted in various contexts beyond the direct purview of the Department. Annually, they determine whether 120,000 federal undertakings affect historic resources, $8.8 billion in rehab projects are eligible for federal rehabilitation tax credits, and thousands of individual projects are approved by local historic commissions. Given the broad reach of these standards, many policymakers and agencies have sought to improve and clarify their application and interpretation. Part III documents relevant prior attempts to suggest improvements. In 2023, the Advisory Council called for additional public comments on the federal historic preservation standards, and Part IV provides an overview of comments received. The prior analyses and more recent comments urge improvement of the manner in which these standards are applied and interpreted by a range of actors. One repeated theme is that the application and interpretation of these standards is often stricter than necessary, undermining the confidence of private parties in the regulatory process and hindering preservation itself. Based on the analyses and comments, it is apparent that the public policy goals of economic growth, environmental sustainability, equity, and even effective preservation may be thwarted by outdated applications and interpretations. Part V offers recommendations to address these issues and to ensure that these standards are applied and interpreted by all levels of government and by private parties in a manner that facilitates not only historic preservation, but also economic growth, environmental sustainability, and equity. Immediate federal action could include the issuance of new guidance on specific topics with an eye toward balancing other key values, as well as a launch of review of existing guidance, expanded trainings, and an acknowledgement of the utility of precedent. It also calls on the Advisory Council to review the current structure of the federal preservation program. In the medium term, the Department of the Interior could initiate rulemaking to expand the Standards, including restoring previously-deleted standards on protection and stabilization and adding new standards for relocation, intentional release, and deconstruction. Longer term, the report encourages a graduated approach to the National Register of Historic Places, which could inform a graduated approach to federal historic preservation standards.

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