One Person Who Could Significantly Delay Your Infrastructure Project

Hunton & Williams LLP
Nick A. Dantonio

September 12, 2017

The Keeper.

For some, the name may conjure images of a character from Game of Thrones, protecting the realm from the evil to the north. But, the Keeper is actually a fairly important National Park Service (NPS) official and has a significant role under the National Historic Preservation Act (NPHA)—the Keeper of the National Register of Historic Places.

The Keeper is responsible for the National Register—“an authoritative guide … to identify the Nation’s cultural resources and to indicate what properties should be considered for protection from destruction or impairment.” 36 C.F.R. § 60.2. “Properties” can include anything from sites and structures to “significant objects.” There are over 90,000 individual properties currently listed in the National Register, each of which can introduce a regulatory hurdle to clear before nearby construction may begin on a project your company plans to undertake. Some of these properties are widely recognized. The majority, however, are relatively unknown outside of the area in which they are located.

As a practical matter, properties begin their journey to listing on the National Register on a standardized form. These forms are typically submitted to the Keeper by a state historic preservation officer. But, in some circumstances, the process begins when a federal agency considering a major infrastructure or other project identifies a particular property as potentially eligible for listing on the National Register. Then the Keeper takes over. After evaluating certain specific criteria, she or he publishes a notice in the Federal Register that the property is under consideration for listing.

The NHPA, which establishes the basis for the Keeper’s review, does not require a general public comment period to assist the Keeper’s decision-making process. The NPS’s regulations, in turn, contemplate a truncated 15-day comment period after publication, which may be “shortened or waived” when found by the Keeper to be “necessary to assist in the preservation of historic properties.” Then, within 45 days of publishing the notice in the Federal Register, the Keeper makes her or his determination based on specific criteria: list or don’t list. Of course, the Keeper has support staff, but this staff is quite lean, usually consisting of one or two reviewers in charge of a large swath of individual states.

Listing a property, or determining that the property is eligible for listing, can lead to lengthy, mandatory procedures for project developers and permitting agencies. Projects that may have an effect on a listed or eligible-to-be-listed property require consultation with another federal agency—the Advisory Council on Historic Preservation (ACHP). The ACHP has its own set of regulations detailing a multi-step comment and consultation process, the result of which is often a Memorandum of Agreement between various entities, such as the project developer, ACHP, state historic preservation officer and the relevant permitting agency. Obviously, these processes take time—time that may not have been fully accounted for in a carefully sequenced project schedule, especially when historic properties are not identified early in the planning process.

While important, proper consideration of historic properties—whether they are listed on the National Register before project development or they are added to the National Register during project development—can be a lengthy process. In light of the impact from the Keeper’s listing decision, and the limited opportunity for the public (including the project proponent) to participate in her or his decision-making process, it is imperative to the success of any major project that project proponents and counsel keep an eye out for potential listings that could impact projects, participate in the decision-making process, and identify and address potential delays resulting from listed or candidate properties early in the life of a project.

This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Mr. Dantonio and may not reflect the opinions of Synergy Environmental, Inc., Hunton & Williams LLP or either of those firms’ clients

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