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Monday, April 04, 2016

Yes, Virginia, We Still Have a National Historic Preservation Act

There’ve been wild reports lately that the National Historic Preservation Act (NHPA) has been repealed.  Like reports of Mark Twain’s death, these stories have been greatly exaggerated. I’ve consulted a knowledgeable legal authority or two, and here’s what I’ve been given to understand:

1.       After its enactment in 1966, the NHPA was originally codified – that is embedded in the United States Code (USC) under Title 16

2.       Very technically speaking, the law as codified under that title was repealed - on 12/19/2014, by the National Park Service and Related Programs Act -- a housekeeping bill designed to impose better order on parts of the USC related to NPS..

3.       But it was immediately re-codified in Title 54 of the USC.

4.       So while it’s apparently technically correct to say that the NHPA was repealed, it was not really, substantively repealed; it’s in full force.

5.       And it’s still perfectly appropriate to refer to its various sections by their original designations (Section 106, Section 110, etc.). Those designations were not parts of the USC; they were section designators in the original bill as enacted by Congress. And none of the regulations have changed; Section 106 is still to be complied with per 36 CFR Part 800.

Clear as mud? Hey, this is Washington. Anyhow, the thing to know is that the law’s not gone away; it’s just got a new address.


2 comments:

John D. Ayer said...

Hmmm, Section 106 was repealed so this creates an ambiguity in all laws referring directly to section 106.

I saw a similar move used in Michigan to subtly alter the Michigan scanning law to eliminate the reference in the scanning law to the pricing reference that made the term "as marked" include the price marked on the shelf. Now the scanning law refers only to the plain reading understanding of "as marked" rather than the legal definition of "as marked" in the pricing law.

It is a pretty scummy way of subverting the law, but, believe me, lawyers love loop holes.

The language changed also, it now refers to "historic properties" as in “building(s) and land located within the boundaries of a park area if the building(s) and land are part of a pre-historic or historic district or site included on, or eligible for inclusion on, the National Register of Historic Properties"

The key here being "within the boundaries of a park area".

Personally, I think someone has an agenda for development in South West Virginia. Just my call, but, if I were you I'd be talking to lawyers that love loop holes. I think someone created a back door here that needs to be shut before we get varmints in the kitchen :-)

Just the opinion of a fat, old, retired, high school drop out. Feel free to ignore me, if I'm alive in 20 years I'll post an "I told you so" 'cause I can be that way :-)

Tom King said...

Read my ions, John: SECTION 106 WAS NOT REPEALED. It wasn't even renumbered. It was just given a new home in the U.S. Code.