Historic Preservation and Surf Resources
Historic preservation laws are designed to identify places with historic value and protect them with tax incentives that reward preservation, mandated consultations prior to decision making by government bodies, and land use restrictions. These protections vary widely since the federal, state, and local levels of government have their own jurisdictions depending on the location of historic property. When historic property is on land owned or controlled by the federal government, the National Historic Preservation Act (“NHPA”) is the only historic preservation law that applies. If historic property is on land owned or controlled by a state, it is also subject to the state’s comprehensive historic preservation plan, in addition to the NHPA. Historic property on private land usually receives the most protection. It is also regulated by local governments, which can adopt preservation ordinances, the strongest form of historic preservation law. The NHPA and the applicable state comprehensive historic preservation plan also apply. Surf resources, especially wave areas, may often be on some land controlled by the federal government, which retains control over tidal areas under the Public Trust Doctrine. Beaches, though, may be on state owned or privately owned land, so the protection available for surf resources under historic preservation laws varies.
Federal Historic Preservation
Protecting historically significant resources became a federal priority in the United States in 1966 when Congress passed the National Historic Preservation Act, which authorized the Secretary of the Interior to maintain a National Register of Historic Places. Today there are more than 80,000 properties listed individually on the National Register, which serves as the federal government’s official list of districts, sites, buildings, structures, and objects deemed worthy of preservation. According to the National Park Service, which manages the National Register, properties with the historical significance and integrity needed for inclusion in the National Register are those:
- “That are associated with events that have made a significant contribution to the broad patterns of our history; or
- That are associated with the lives of significant persons in or past; or
- That embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or
- That have yielded or may be likely to yield, information important in history or prehistory.”
Although inclusion in the National Register is mainly an “honorific recognition,” it provides several other benefits that make preservation of an historic property’s historic significance and integrity more appealing. Most noteworthy for surf and coastal resources, Section 106 of the NHPA requires that federal agencies with control over a federal undertaking that could affect properties included in, or eligible for inclusion in, the National Register to consult with interested parties and the Advisory Council on Historic Preservation. Federal agencies must also provide them a reasonable opportunity to comment and try to mitigate harmful effects, if any. Yet like NEPA, Section 106 only requires federal agencies to “stop, look, and listen.” It does not prevent them from approving a project that would destroy a property listed on the National Register, as long as they have gone through the required process.
Owners of historic property included in the National Register receive another benefit because they become eligible for tax incentives that encourage preservation. Under the Tax Reform Act of 1976, as amended by the Revenue Act of 1978 and the Tax Treatment Extension Act of 1980, owners of property included in the National Register are eligible for a 20% investment tax credit for the certified rehabilitation of income-producing certified historic structures, which can be combined with a straight-line depreciation period of 27.5 years for residential property and 31.5 years for nonresidential property for the depreciable basis of the rehabilitated building reduced by the amount of the tax credit claimed. Additionally, owners are eligible for federal tax deductions when they make charitable contributions that help conserve historically important land areas or structures on the property. These incentives make it more appealing to invest in projects that conserve the historic significance and integrity of properties included in the National Register.
The NHPA also makes properties listed in the National Register eligible for federal grants-in-aid for historic preservation, subject to several conditions. Applications for grants must be made in accordance with state comprehensive historic preservation plans. Grants are also awarded on a matching basis. Recipients must provide at least 40% of the total cost of the proposed project. The federal government also does not assume responsibility for any of the costs that arise after the project receiving the grant is completed.
State Historic Preservation
The NHPA does not create substantive protections for historic properties, but it does establish a framework for states to do so. The Secretary of the Interior is required to “promulgate or revise regulations for State Historic Preservation Programs” (“SHPP”) and approve programs that provide for:
- The designation and appointment by the Governor of a State Historic Preservation Officer (“SHPO”),
- The employment or appointment by that officer of qualified staff,
- An adequate and qualified State historic preservation review board, and
- Adequate public participation in the State Historic Preservation Program.”
At least once every four years, the Secretary must evaluate each state program to “determine whether it is consistent with [the NHPA].” The SHPO’s responsibilities include administering SHPPs and identifying and nominating properties eligible for inclusion in the National Register. States can also utilize nonprofit organizations to perform their obligations.
Historic preservation varies by state, but in general states model their plans after the NHPA and provide some additional protections. For example, California requires state agencies to conduct a consultation process similar to that required by Section 106 of the NHPA. California also protects buildings or structures listed on the National Register that are transferred from state ownership to another public agency from being “demolished, destroyed, or significantly altered, except for restoration to preserve or enhance its historical values, without the prior approval of the Legislature by statute.”
Local Historic Preservation
States also establish the framework in which local governments can operate historic preservation programs and preservation ordinances. SHPPs must provide the SHPO with a mechanism for certifying local governments “to carry out the purposes of” the NHPA and provide for the transfer of federal grant money to local governments.
Local governments can implement historic preservation ordinances, which provide the greatest protection available for historic resources. Preservation ordinances differ widely and offer a broad spectrum of protections. They generally create a preservation commission and establish procedures and criteria for the designation of historic properties and the review of requests to alter, move, or demolish such properties. However, these strong protections are only available when the resources are on private land since local governments do not have the authority to regulate property owned or controlled by the state or the federal government.A prominent example of a local preservation ordinance, which demonstrates how strong they can permissibly be, comes from Penn Cent. Transp. Co. v. City of New York, when the Supreme Court of the United States upheld New York City’s Landmarks Preservation Law that prohibited the construction of a fifty-five story building atop Grand Central Station.
Historic preservation laws can help protect historic surf resources, especially when they are on state land in states that provide strong protections for historic resources or on private land when local governments have strong local preservation ordinances. Historic surf resources on federally owned or controlled land, though, can only protected by NHPA. Surf resources may be on land subject to federal control because waves are usually in tidal, or coastal, waters, and the federal government ultimately controls tide waters under the Public Trust Doctrine.
See also the article Surfing Area Protection.
- 16 U.S.C. 470a.
- National Register Bulletin 15: How to Apply the National Register Criteria for Evaluation.
- 16 U.S.C. 470a(a)(1)(A).
- Nat'l Min. Ass'n v. Fowler, 324 F.3d 752, 755 (D.C. Cir. 2003).
- 16 U.S.C. 470a(c)(1); 16 U.S.C. 470a(e)(3)(A).
- 16 U.S.C. 470b(b).
- 16 U.S.C. 470a(b)(1).
- 16 U.S.C. 470a(b)(2).
- 16 U.S.C. 470a(b)(3).
- 16 U.S.C. 470a(b)(4).
- Cal. Pub. Res. Code § 5024.5.
- Cal. Pub. Res. Code § 5027.
- 16 U.S.C. 470a(c)(1).
- 438 U.S. 104, 129 (1978).
- “It is the settled law of this country that the ownership of and dominion and sovereignty over lands covered by tide waters, within the limits of the several states, belong to the respective states within which they are found, with the consequent right to use or dispose of any portion thereof, when that can be done without substantial impairment of the interest of the public in the waters, and subject always to the paramount right of congress to control their navigation so far as may be necessary for the regulation of commerce with foreign nations and among the states.” Illinois Cent. R. Co. v. State of Illinois, 146 U.S. 387, 435 (1892).