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Clark Hill Member, Karen C. Bennett, to Present at 2018 AEMA Conference in Spokane, WA, on the National Historic Preservation Act; Update on Efforts to Clarify NHPA Implementation

November 20, 2018

WASHINGTON D.C. – Clark Hill Member, Karen C. Bennett, will be presenting at the 2018 AEMA Conference on the National Historic Preservation Act; Update on Efforts to Clarify NHPA Implementation on December 5, 2018.

This session discusses:

Congress passed the NHPA in 1966 to encourage public and private historic preservation activities. The NHPA requires that, prior to any federal expenditure or issuance of a permit, the federal agency with jurisdiction must consider the effect of the federal action on any dis­trict, site, building, structure, or object that is included or eligible for inclusion in the National Register of Historic Places (“NR”) and provide the Advisory Council on Historic Preservation (ACHP) with a reasonable opportunity to comment with regard to the undertaking.

The National Register of Historic Places (“NR”) is composed of districts, sites, buildings, structures, and objects significant in American histo­ry, architecture, archeology, engineering, and culture. Once a site is determined eligible for listing or listed in the NR, the National Historic Preservation Act (NHPA) requires that a federal agency must consider whether a proposed action will diminish the characteristics qualifying a property for the Register. A determination of eligibility renders the property on equal footing with listed properties for purposes of invoking Section 106 Review, making listing on the NR unnecessary for Section 106 protection. However, the determination of eligibility process does not require public notice and consideration of landowner input; these requirements apply only when the property is formally nominated for inclusion on the NR, which may never occur. There is also no right to appeal an eligibility determination. Consequently, large swaths of pri­vate, state and public land have been determined eligible with no public or landowner awareness and the designation has been used as a means to stop development projects or impose substantial additional costs through required “mitigation.”

This session will take a hard look at the NHPA, the NR, and implementing regulations and guidance from the perspective of the authorizing agency, project proponents, landowners, and State Historic Preservation Officers. Specifically, the session will focus on implications associated with the inclusion of landscapes, waterways, natural resources, and purely intan­gibles as resources eligible for listing on the NR and efforts to return to Congress’ intent and common sense to NHPA decision-making.

For more information about the AEMA Conference, click here.

Karen C. Bennett is a Member in the firm’s Washington, D.C. office in the Environment, Energy & Natural Resources practice group where she represents clients on environmental and administrative law matters, focusing primarily on permitting, compliance, litigation and legislative and regulatory policy under the Clean Water Act (CWA), the Surface Mining Control and Reclamation Act (SMCRA), the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Karen has also guided clients through Federal Emergency Management Agency (FEMA) cost recovery actions and appeals.

Karen is recognized as a skilled strategist, with experience in obtaining federal approvals for complex projects that face multi-front regulatory hurdles and public scrutiny, and often-times, conflict between state and federal regulatory agencies.

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