State Stewardship Programs
State Preservation Laws
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Successful state preservation programs are dependent upon the cooperation of state agencies in identifying and protecting historic resources within their control. To that end, state agencies are considered full partners, if not leaders, in protecting historic resources.
Not only should each state agency identify and nominate historic properties for inclusion in a state historic register, each agency should also ensure that such properties are managed, maintained, and used in a way that encourages their preservation and protected from potentially harmful acts. Preservation policies should be fully integrated into agency operating procedures and management systems, including provision for sufficient budgetary and personnel resources.
At a minimum, every state should have in place 1) a process for identifying and listing historic resources within its control; 2) a process for protecting such resources from potentially harmful state actions; and 3) policies that encourage preservation to the greatest extent possible.
Many states have adopted stewardship programs patterned after Section 110 of the National Historic Preservation Act. This provision requires federal agencies to document and preserve historic properties that they own or control. Federal agencies must inventory and nominate eligible properties to the National Register as well as ensure that such properties are not "inadvertently transferred, sold, demolished, substantially altered, or allowed to deteriorate significantly."
Case Study: Georgia
Codified at Georgia Code §§ 12-3-55, the state's law directs "heads of all state agencies" to "assume responsibility for the preservation of historic properties" under their ownership. In addition, before "acquiring, constructing, or leasing buildings for purposes of carrying out agency responsibilities," each state agency is required to "use, to the maximum extent, and as operationally appropriate and economically feasible, historic properties available to the agency."
Georgia's law establishes a specific timetable for establishing preservation programs within each agency, requiring that by July 1, 2000, each agency shall have in place "a preservation program for the identification, evaluation, and nomination of historic properties to the Georgia Register of Historic Places to further protection of such historic properties." Under each agency program, historic properties must be "managed and maintained in a way that considers the preservation of their historic, archaeological, architectural and cultural values" and "give [ ] special consideration to the preservation of such values in the case of properties designated as having historic significance to this state." All agency preservation activities are to be "carried out in consultation with other federal, state, and local agencies, Native American tribes, and the private sector."
Specifically, each agency program must include a process for the identification and evaluation of historic properties as well as the development and implementation of agreements "regarding the means by [which] such adverse effects on such properties will be considered." Prior to the approval of any undertaking affecting National Historic Landmarks, agency heads are also required, "to the maximum extent possible, undertake such planning and actions as may be necessary to minimize harm to such landmark and shall afford the director an opportunity to comment on the undertaking." Agencies are also required to ensure that no loans, permits, licenses or other form of assistance is provided to applicants who have "intentionally and adversely affected a historic property" unless special circumstances exist. However, the law explicitly provides that it does not create "any right or benefit, substantive or procedural, enforceable at law by a party against the State of Georgia."
Consistent with efforts at the federal level, Georgia's preservation law also directs agencies to "utilize and maintain, wherever operationally appropriate and economically prudent, historic properties and districts, especially those located in central business areas" and to "give first consideration to historic properties in historic districts" when locating state facilities. In addition, state agencies are required to remove obstacles or minimize regulatory impediments to accomplishing these goals.
Case Study: Indiana
The State of Indiana has established specific procedures for the protection of either historic sites and structures owned by the state or those listed in the state or national register.
These properties may "not be altered, demolished, or removed by a project funded, in whole or in part, by the state unless the state historic preservation review board has granted a certificate of approval. (See Ind. Code § 14-21-1-18(a)A). The state has also adopted legislation governing the treatment of Indian burial sites (See Ind. Code § IC 14-21-1-13.5 and § 14-21-1-25.5-30), and special provisions the disposition and treatment of state educational buildings (See Ind. Code § 14-21-14, 14-21-18, and 14-21-18.5. Section 14-21-1-14), for example, provides for the preservation of property owned by educational institutions through the attachment of covenants or easements on historic property prior to transfer:
Duties Upon Proposed Transfers of Property by the State
Sec. 14. (a) This section does not apply to real property that is owned by a state educational institution (as defined in IC 20-12-0.5-1).
(b) The Indiana department of administration shall notify the division of a proposed transfer of real property owned by the state at the earliest planning stage and no later than ninety (90) days before the date of the proposed transfer.
(c) The division shall inspect the property and notify the Indiana department of administration of the location of each historic site or historic structure on the property.
(d) Real property owned by the state may not be sold or transferred until the division has stated in writing that the property does not, to the best of the division's knowledge, contain a historic site or historic structure.
(e) If the Indiana department of administration receives notice of a historic site or historic structure on the property, the Indiana department of administration shall reserve control of the appropriate historic property by means of a covenant or an easement contained in the transferring instrument.
(f) The division of state museums and historic sites shall administer property reserved under subsection (e).
Layperson's Guide to Preservation Law: Federal, State and Local Laws Governing Historic Resources
First published in 1997, this booklet provides a concise and comprehensible guide to federal, state and local laws governing historic resource protection. The 2008 edition includes updated information on transportation issues, eminent domain, easements, the American's with Disabilities Act, and the regulation of historic religious properties.