The Laws Behind Environmental Review

Federal and state laws provide limited protections for historic and archaeological properties affected by government-sponsored undertakings. Private and local undertakings are not affected by these laws unless there is state or federal involvement in the undertaking.

Federal Laws

Section 106 of the National Historic Preservation Act of 1966 provides that properties and districts listed in or eligible for listing in the National Register of Historic Places be considered in the planning of federal undertakings such as highway construction and community development projects. "Federal undertakings" also include activities sponsored by state or local governments or private entities if they are licensed, permitted, approved, or funded (wholly or in part) by the federal government. "Federal undertakings" do not include loans made by banks insured by the FDIC or federal farm subsidies.

There is no absolute protection from federal actions that may affect a historic property. If a federal undertaking is in conflict with the preservation of a historic property, the State Historic Preservation Office will negotiate with the responsible federal agency, sometimes with the involvement of the federal Advisory Council on Historic Preservation, in an effort to eliminate or minimize the effect on the property. This mitigation procedure applies to properties that are determined eligible for the National Register in the day-to-day environmental review process as well as those actually listed in the National Register. See Working with Section 106 posted by the Advisory Council.

State Laws

North Carolina law ( G.S. 121-12(a) ) provides for consideration of National Register properties in undertakings funded or licensed by the state. Where a state undertaking is in conflict with the preservation of a National Register property, the North Carolina Historical Commission is given the opportunity to review the case, "giving due consideration to the competing public interests involved," and make recommendations to the state agency responsible for the undertaking. The commission's recommendations to the state agency are only advisory. Properties potentially eligible for but not actually listed in the National Regster are not protected under G.S. 121-12 (a).

General Statute 121-12 establishes a procedure for the review of state undertakings that affect historic properties that is patterned after that created in federal law for federal undertakings. The North Carolina Historical Commission, through a subcommittee with additional professional members called the National Register Advisory Committee, reviews nominations from the state to the National Register of Historic Places. In matters of state undertakings affecting National Register properties, the Historical Commission acts somewhat as a counterpart to the federal Advisory Council on Historic Preservation. Since the State Historic Preservation Officer serves as the secretary of the Historical Commission, federal and state review and protection activities are closely coordinated.

G.S. 121-12 charges the Historical Commission "to provide an advisory and coordinative mechanism in and by which State undertakings of every kind that are potentially harmful to the cause of historic preservation within the State may be discussed, and where possible, resolved, giving due consideration to the competing public interests that may be involved." Unlike federal law, state law does not provide protection for properties that may be eligible for, but not actually listed in, the National Register. Recommendations made by the Historical Commission to state agencies are strictly advisory.