On Friday, July 24, the Advisory Council on Historic Preservation (ACHP) held an unassembled vote to advance revisions to regulations implementing Section 106 of the National Historic Preservation Act (36 CFR Part 800), with 16 voting in favor, 5 opposed, and 2 abstentions. These new rules would dramatically diminish the effectiveness of the NHPA and the current legal protections for historic and cultural places.

Since the enactment of NHPA 60 years ago, Section 106 has been the foundational requirement for federal agencies to "take into account" the effects of their actions on historic properties and places, enabling public participation and comment in the process, giving voices to state and local governments and tribal communities, and often improving the project and enhancing the outcome of projects.

Currently, Section 106 review happens when a project involves a federal permit (like Clean Air, Water, or Highways), or receives federal funding (Congressionally-Directed Spending, National Park Service, etc.). The entity applying for the permit or funding must go through a consultation process with state and tribal historic preservation offices where they review what historic/cultural resources would be affected by the project, and they work together to try to mitigate any damages.

Through this process, state agencies and the public usually have a 30-day comment period to influence how any damages can be avoided or mitigated. The federal agency takes these into consideration and can work with the public on creative solutions to save or avoid historic/cultural resources altogether.

The final result of the Section 106 review is a Programmatic Agreement between the federal agency and the state/tribal historic preservation office where the final resolutions are laid out and agreed to. There have been many win-wins through this current process where projects are getting done, and historic resources are being saved and repurposes. Now the ACHP is proposing to change this process.

Some of the most concerning changes proposed include:

• Federal agencies will no longer be required to try to avoid or minimize damage to America’s historic architecture, neighborhoods, and landscapes.
• State and local governments will no longer have the right to be notified or have the opportunity to comment when federal agencies propose to damage or destroy historic places within their jurisdiction.
• The public’s opportunity to comment on federal historic preservation policies or actions would now be entirely optional, at the discretion of the federal agency.
• The federal government will no longer be required to consult with Native American tribes or seek their expertise regarding their own significant cultural resources.
• Significant cultural landscape features would no longer be considered historic properties, so federal agencies would no longer be required to take into account any adverse effects to significant places such as the Grand Canyon.
• Federal agencies would no longer be required to consider the reasonably foreseeable consequences of their actions on historic properties, other than direct actions that physically damage the properties.

Now that the ACHP has voted, what's next? According to the National Council for State Historic Preservation Offices' article, now that the proposal is moving forward, these things typically follow a path like this:

Step 1 — OIRA Review
The proposal moves to the Office of Information and Regulatory Affairs (OIRA) within the White House Office of Management and Budget for regulatory review and potential interagency coordination.

Step 2 — Proposed Rule Published
If OIRA review is completed, the ACHP publishes a Notice of Proposed Rulemaking in the Federal Register.

Step 3 — Public Participation
This is when formal public comment begins. Tribal consultation, consultation with State Historic Preservation Offices, and comments from local governments, preservation organizations, applicants, and the public become part of the official record.

Step 4 — Final Rule Development
The ACHP reviews comments, revises the proposal as appropriate, and prepares a final rule for consideration by the Council.

Step 5 — Final Review and Publication
Following a second OIRA review, the final regulation may be published in the Federal Register, typically becoming effective 30 days later.

We will alert you to any public comment opportunity or timeline changes. If you have any questions, please reach out at any time!

PAWV is preparing our own comments, and we are putting together a list of examples where Section 106 has had a positive outcome in West Virginia communities. If you have taken part in a review, for instance for a bridge or highway project, let us know. We want to hear your experiences and would like to include them in our final comments that we submit to our Senators and other elected officials.

​The National Park Service announced a final decision on their December 2023 proposal to demolish 19 historic buildings in the New River Gorge National Park and Preserve in West Virginia. PAWV placed these historic sites on the West Virginia Endangered Properties List in early 2024 and has served as a consulting party with many others to advocate for the saving of these irreplaceable historic sites. Many may remember that the Park proposed 3 options for how to handle these buildings:

• Alternative A: No Action
• Alternative B: Demolish All Proposed Excess Historic Structures (their preferred option)
• Alternative C: Retain Proposed Excess Historic Structures with High Potential for Reuse – this included 3 structures originally (the Marilyn Brown House, the Thurmond Ice House, and the Dun Glen Ark.)

On July 18th, the Park announced that it chose Alternative C with minor modifications to consider 3 other buildings for retention with the option to lease: the Tom Kelly House, the Dun Glen Boat Storage Rack, and the Dun Glen Mini Ark.

The Preservation Alliance of West Virginia is encouraged by the National Park Service’s decision to compromise on the proposed demolitions by retaining and offering leasing opportunities for several historic properties. While we remain disappointed that the Prince Brothers Store and Dun Glen Hotel site were not included in the leasing pool, this outcome represents a meaningful win for public advocacy and historic preservation. The door is now open to save and restore more irreplaceable sites for future generations. We are grateful for this progress and are now focusing our efforts on understanding the leasing process to support the public in developing strong proposals for the rehabilitation and reuse of these important buildings.

​You can read the full decision at the National Park Service's website. 

Last week, the West Virginia Legislature passed legislation that improves the 25% State Historic Tax Credit (HTC) in West Virginia, and it is now on its way to the Governor's desk. 
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House Bill 4568 (known as Phased Rehabilitations of Certified Historic Structures) achieves multiple goals such as:

• Allowing the state HTC to be taken in phases, which is known as “phased rehabilitations”,
• Allowing the recapture of HTCs,
• Requiring the issuance of HTC certificates based on issuance of Phase Advisory Determination, bringing the state program in line with the federal HTC program, and
• Eliminating all caps to the state historic tax credit and associated rules, guarantees, and restrictions related to caps and allocations. These were outlined in the original 2017 legislation that increased the tax credit from 10% to 25% and included:
  • The per project cap of $10 million for a certified rehabilitation project;
  • The annual cumulative cap of $30 million in tax credits issued per fiscal year;
  • The “smaller project” allocation that was originally intended to ensure smaller projects (those under $500,000) received tax credits

If signed into law by Governor Justice, this legislation will become effective on July 1, 2022. What this means for West Virginia is that completing HTC projects just got a little simpler. The three-part application for the state and federal HTCs (which when combined total 45%) will be a more fluid process when working with the West Virginia State Historic Preservation Office and the National Park Service because the agencies will now follow the same procedural rules, thus minimizing paperwork requirements. Equally as important, removing the limitations on allocations and guarantees of historic tax credits will make it more secure and improve investor confidence when undertaking both larger and smaller projects.

This is a major win for West Virginia! These provisions increase the Mountain State’s attractiveness from industry-based development firms that specialize in HTC-backed projects, in addition to making the program more user-friendly for individuals wanting to undertake smaller projects. Neighboring states have more restrictive programs, making West Virginia a very investor-friendly state for HTC projects in the mid-Atlantic region. For instance, Maryland has a 20% state HTC that is capped at $3 million per project with a $9 million annual cumulative cap per fiscal year. Pennsylvania and Ohio both have a 25% state HTC, but they have $5 million annual cumulative cap per fiscal year.

HB 4568 was sponsored by Delegates Jason Barrett (R-61), Eric Householder (R-64), Erikka Storch (R-03), Vernon Criss (R-10), Paul Espinosa (R-66), Daniel Linville (R-16), Joe Ellington (R-27), Ruth Rowan (R-57), Clay Riley (R-48), Dianna Graves (R-38), and John Hardy (R-63). The Alliance appreciates their support and would also like to thank the leadership and policy expertise provided by the Abandoned Properties Coalition and their long-term dedication to seeing West Virginia’s state historic tax credit improved.
 
The Preservation Alliance of West Virginia is the statewide, grassroots nonprofit dedicated to historic preservation. The Alliance has been working as a member of the Abandoned Properties Coalition since 2016 to improve the state HTC to include the provisions outlined in HB 4568.

For inquiries regarding usage of the West Virginia commercial HTC, contact the West Virginia State Historic Preservation Office’s Tax Credit Coordinator, Meredith Dreistadt at [email protected]. 

West Virginians are invited to celebrate their historic preservation success stories through the Preservation Alliance of West Virginia’s new West Virginia Preservation Spotlight series. ​