[Federal Register Volume 89, Number 32 (Thursday, February 15, 2024)]
[Notices]
[Pages 11847-11854]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03164]


=======================================================================
-----------------------------------------------------------------------

ADVISORY COUNCIL ON HISTORIC PRESERVATION


Notice of Adoption of Policy Statement on Housing and Historic 
Preservation

AGENCY: Advisory Council on Historic Preservation.

ACTION: Notice of adoption of policy statement on housing and historic 
preservation.

-----------------------------------------------------------------------

SUMMARY: The Advisory Council on Historic Preservation has adopted its 
Policy Statement on Housing and Historic Preservation.

DATES: The policy statement was adopted and went into effect on 
December 22, 2023.

FOR FURTHER INFORMATION CONTACT: Druscilla Null, (202) 517-1487, 
[email protected].

SUPPLEMENTARY INFORMATION: The Advisory Council on Historic 
Preservation (ACHP), an independent Federal agency created by the 
National Historic Preservation Act (NHPA), works to promote the 
preservation, enhancement, and sustainable use of our nation's diverse 
historic resources, and advises the President and the Congress on 
national historic preservation policy.
    Under the NHPA, the ACHP's duties include advising the President 
and Congress on matters relating to historic preservation; recommending 
measures to coordinate activities of Federal, state, and local agencies 
and private institutions and individuals related to historic 
preservation; and advising on the dissemination of information 
pertaining to those activities. In keeping with these mandates, in June 
2023 the ACHP initiated discussions regarding the role that 
rehabilitation of historic buildings can play in alleviating America's 
housing shortage and how the ACHP might advise and assist Federal 
agencies and other stakeholders on the topic.

[[Page 11848]]

    ACHP staff developed a draft discussion outline that was provided 
to the full ACHP membership for review in July 2023. The general 
consensus of the members was to move forward with drafting of the 
policy statement using the proposed outline. Staff then developed a 
draft policy statement, with input from ACHP members and feedback from 
the Chair's Expert Advisory Committee. (For more information on this 
committee, see https://www.achp.gov/expertsadvisorycommittee.)
    Subsequently, the members approved providing the draft to 
stakeholders and the public for comment. Two consultation events were 
held, one for Tribal and Native Hawaiian organization leaders and the 
other for State Historic Preservation Officers and their staffs. 
General public comments also were solicited. Based on the feedback 
received, the draft was revised. The final version of the policy 
statement was adopted by vote of the ACHP members on December 22, 2023.
    The ACHP issues the regulations (36 CFR part 800) that implement 
section 106 of the NHPA, which requires Federal agencies to take into 
account the effects of projects they carry out, approve, or fund on 
historic properties. The policy statement applies to the consideration 
of housing issues during section 106 reviews.
    While the policy statement pertains to Federal agency challenges 
and opportunities, it also speaks broadly to nonfederal parties, 
including but not limited to state, Tribal, and local governments; 
community groups; nonprofit organizations; developers, and others in 
the private sector. The document defines the scope of the challenge and 
discusses why rehabilitating and reusing historic buildings can be so 
impactful in addressing the housing shortfall being experienced by many 
communities. The policy statement promotes streamlining and improved 
permitting to support reuse of historic buildings for housing. It also 
explicitly acknowledges and aims to address burdens historically 
imposed on disadvantaged and underserved communities, and communities 
with environmental justice concerns.
    The bulk of the document consists of a series of policy principles 
that are grouped under five general topics: reuse historic buildings; 
accelerate project permitting and environmental review; gather 
information; educate; and collaborate.

Text of the Policy Statement on Housing and Historic Preservation

    The full text of the adopted policy statement is reproduced below:

ACHP Housing and Historic Preservation Policy Statement

    Many communities across America are experiencing housing shortages, 
especially shortages of affordable housing. Cumulatively, this problem 
has grown to crisis proportions. Tackling this challenge requires a 
multi-pronged effort, of which rehabilitation of historic buildings is 
a critically important component. Recognizing that facilitating 
rehabilitations can help boost housing supply, meet sustainability 
goals, and utilize community assets more effectively, the Advisory 
Council on Historic Preservation (ACHP) has developed this policy 
statement to encourage both rehabilitation of historic housing 
(including historic public housing) and adaptation of historic 
buildings not originally built for housing.

Scope of the Issue

    Estimates vary among studies quantifying the scope of the current 
housing shortage, but the overall conclusion is the same-America is 
facing a significant deficit in housing supply versus demand in many 
communities. This deficit is a major cause of rising costs. A 2023 
report by the Joint Center for Housing Studies of Harvard University, 
The State of the Nation's Housing 2023, succinctly summarizes what many 
other studies have found:
    Millions of households are now priced out of homeownership, 
grappling with housing cost burdens, or lacking shelter altogether, 
including a disproportionate share of people of color, increasing the 
need for policies to address the national housing shortfall at the root 
of the affordability crisis.
    While discussing the need to construct new units, the report also 
concludes that:
    In addition to expanding the supply of new homes, improving the 
existing housing supply is critical. Substantial investment will be 
needed to preserve the aging stock and respond to climate change. At 43 
years of age, the median home in 2021 was the oldest it has ever been . 
. .
    Rehabilitating and reusing existing buildings must be integral to 
addressing the housing shortage, which is not a problem America can 
build its way out of solely through new construction.
    Because approximately 40 percent of America's current building 
stock (residential and commercial) is at least 50 years old, 
rehabilitation of historic and older buildings must play an important 
role in addressing the housing supply shortfall. In towns, counties, 
and cities, and on Tribal lands throughout the country, historic 
buildings either are or can be rehabilitated as housing. Given that the 
cost of rehabilitation on a per-square-foot basis tends to be less than 
new construction, historic buildings are an important source of so-
called ``naturally occurring'' affordable housing. The opportunities 
for housing creation and retention are immense. Further, every person 
should have safe, clean, and affordable options for housing and a 
healthy environment, and these needs are closely linked with other 
social determinants of health and environmental justice goals.
    This policy statement pertains primarily to historic properties--
buildings, sites, districts, structures, and objects--which are 
included in or eligible for inclusion in the National Register of 
Historic Places (National Register), and principally to individual 
historic buildings and buildings within historic districts. However, it 
is important to recognize that many older buildings that could qualify 
for historic designation have not yet been designated. Others are not 
yet 50 years old--the usual age threshold that must be reached to be 
considered eligible for National Register designation. The ACHP 
acknowledges that many of the strategies and suggestions offered in 
this policy statement can apply to older buildings generally, not just 
those formally determined to be historic.
    It also is important to acknowledge that while efforts to honor and 
preserve the stories of all Americans are expanding, historic 
properties in disadvantaged and underserved communities, as well as 
communities with environmental justice concerns, are often 
underrepresented on the National Register, creating imbalances in 
access to preservation incentives. Disproportionately affected by the 
housing shortage, these communities also often lack management and 
decision-making authority that would help them determine where and how 
investments in the reuse of historic buildings for housing are made, or 
address any negative impacts of such determinations.
    Projects to rehabilitate historic buildings for housing or build 
new housing may be subject to historic preservation review at the 
Federal, state, and/or local levels. The existence of these processes 
sometimes gives rise to an assumption that historic preservation

[[Page 11849]]

reviews will complicate or be a barrier to housing development, 
particularly of affordable housing. This need not be the case, and when 
fully integrated into regular project planning and scheduling, such 
reviews can benefit project development without causing delay or 
increasing project costs. However, such reviews do need to be grounded 
in a flexible yet consistent approach to ensure that housing can be 
developed expeditiously while still preserving the historic qualities 
of affected historic properties. One intent of this policy statement is 
to encourage such flexibility.

Role of the Federal Government

    The National Historic Preservation Act (NHPA) states that it is the 
policy of the Federal government ``to foster conditions under which our 
modern society and our historic property can exist in productive 
harmony and fulfill the social, economic, and other requirements of 
present and future generations.'' \1\ Consistent with this, the Federal 
government plays a role in establishing and implementing both historic 
preservation and housing policy. It also directly funds both historic 
preservation projects and housing projects, undertaken by public and 
private actors alike. And finally, it sets forth standards for the 
treatment of historic properties that are, in turn, interpreted and 
applied by state, Tribal, and local governments and private parties. 
Thus, the Federal government has a significant role to play in the way 
that buildings are updated or repurposed for housing.
---------------------------------------------------------------------------

    \1\ 54 U.S.C. 300101.
---------------------------------------------------------------------------

    A key player regarding historic preservation is the ACHP, an 
independent Federal agency created by the NHPA. It works to promote the 
preservation, enhancement, and sustainable use of our nation's diverse 
historic resources. It is the ACHP's responsibility to ``advise the 
President and Congress on matters relating to historic preservation, 
recommend measures to coordinate activities of Federal, state, and 
local agencies and private institutions and individuals related to 
historic preservation, and advise on the dissemination of information 
pertaining to those activities.'' \2\ The ACHP has developed this 
policy statement in keeping with this mandate.
---------------------------------------------------------------------------

    \2\ 54 U.S.C. 304102.
---------------------------------------------------------------------------

    Across the Federal government, agencies are responsible for 
directly managing and caring for historic properties under their 
control, and for fostering both nonfederal, governmental, and private 
preservation activities. Section 110 of the NHPA sets out these broad 
historic preservation responsibilities of Federal agencies and is 
intended to ensure that historic preservation is fully integrated into 
their ongoing programs.\3\ Federal agencies with responsibilities 
regarding housing must consider historic properties as part of their 
program planning, addressing the role historic buildings can play in 
providing housing and the potential impacts of housing projects and 
programs on historic properties of all types.
---------------------------------------------------------------------------

    \3\ 54 U.S.C. 306101-306107; 306109-306114.
---------------------------------------------------------------------------

    Federal agencies also must consider the effects of projects--
including housing projects--they carry out, approve, or fund on 
historic properties. This requirement has been enshrined in section 106 
of the NHPA and in corresponding regulations issued by the ACHP.\4\ 
Section 106 applies both to housing built directly by Federal agencies 
and to housing funded by Federal agencies. Many Federal agencies, 
including the Departments of Defense, Interior, and Agriculture build 
housing for their staff and for other purposes. In addition, some 
Federal agencies, notably the Departments of Housing and Urban 
Development (HUD), Agriculture, and Veterans Affairs, provide funding 
to and/or partner with public housing authorities, state and local 
governments, and private entities for the creation of housing. These 
Federal agencies (and funding recipients that have assumed HUD's 
environmental review requirements by statute) must comply with section 
106.\5\
---------------------------------------------------------------------------

    \4\ 54 U.S.C 306108; 36 CFR part 800.
    \5\ This statement incorporates provisions of a 2006 ACHP Policy 
Statement on Affordable Housing and Historic Preservation (a 
replacement for a previous 1995 policy statement), which was 
designed to serve as a guide for Federal agencies and other 
stakeholders when making decisions about affordable housing projects 
during section 106 review. In recognition that the Federal 
government engages in undertakings triggering section 106 review for 
both affordable housing and other types of housing, this policy 
statement removes the word ``affordable'' from text that previously 
appeared in the 2006 policy statement.
---------------------------------------------------------------------------

    Influencing the physical nature and form of both public and private 
projects, whether subject to the section 106 review process or not, are 
standards for the treatment of historic properties set forth by the 
Department of the Interior, including the Secretary of the Interior's 
Standards for Rehabilitation (Secretary's Standards). These standards 
have been adopted by state and local governments and also influence 
private action.
    It is within this context of the Federal government's role at the 
intersection of housing and historic preservation that this policy 
statement has been developed.

Intended Audience

    Given the leadership role of the Federal government in addressing 
both housing and historic preservation, the following policy principles 
seek to promote informed policy making, decision making, and 
responsible stewardship of historic properties by the Federal 
government. The ACHP also has designed this policy statement to assist 
Tribal, state, and local governments; community groups; and nonprofit 
organizations (collectively, along with Federal agencies, ``public-
serving institutions''); developers, and others in the private sector 
as they seek to reuse historic buildings for housing as a strategy to 
address the housing crisis.
    It is important to note that a wide variety of nonprofit 
organizations can play a role in rehabilitation of historic buildings 
for housing. Among these are nonprofit housing corporations, community 
development corporations, land banks, and heritage conservancies. 
Similarly, for-profit developers are central to maximizing housing 
creation through historic building rehabilitation, frequently creating 
affordable housing through the use of local, state, or Federal tax 
credits or subsidies. The ACHP encourages both the nonprofit and the 
for-profit private sectors to explore the opportunities inherent in 
reusing historic buildings for housing.

Policy Principles

    It is the policy of the ACHP to encourage and accelerate 
rehabilitation of historic buildings for housing and to assist in 
harmonizing historic preservation and housing goals. The ACHP has 
developed the following principles to guide its own actions and to 
advise public-serving institutions and other public and private 
entities on these issues. The ACHP will integrate these principles into 
its oversight of the Federal section 106 review process and into the 
advice it provides to Federal agencies, Tribal, state, and local 
governments, and the general public.

Reuse Historic Buildings

    1. The Federal government and state governments should develop 
additional historic tax incentives and easier ways to pair those 
incentives with housing and energy tax incentives. The existing Federal 
historic tax credit provides a 20 percent income tax credit for the 
rehabilitation of historic, income-producing buildings. As of June 
2023, 39 states also have adopted state historic tax credits. Retaining 
and enhancing these credits and developing new

[[Page 11850]]

historic tax incentives is vitally important to scaling up 
rehabilitation of historic buildings for housing. Policymakers should 
consider increasing historic tax credit percentages for rehabilitation 
projects that create housing, particularly affordable housing, as well 
as setting aside a portion of tax credit benefits for housing creation 
in states where the state historic tax credit has a monetary program 
cap.
    Tax credits for rehabilitation of older buildings that are not 
formally designated as historic also would contribute to housing 
creation while complementing and supporting efforts to rehabilitate 
nearby historic buildings in historic neighborhoods. Also, expanding 
homeowner historic tax credits should be considered. Rehabilitation of 
owner-occupied historic housing does not qualify for all state credits 
or the Federal historic tax credit. Homeowner rehabilitation tax 
credits would encourage preservation of existing historic housing by 
helping to support maintenance, rehabilitation, weatherization, and 
energy retrofits of historic homes.
    The effectiveness of Federal and state historic tax credits could 
be further leveraged if it were easier to couple them with housing and 
energy tax incentives, notably the Low-Income Housing Tax Credit 
(LIHTC). Legislative and/or administrative fixes should be explored to 
reconcile conflicts. It is particularly important to address 
disconnects that are making pairing of the Federal historic tax credit 
and LIHTC increasingly difficult, including both tax policy and 
application-based challenges. More states should consider giving 
preference points for historic preservation projects in their 
allocation of LIHTCs, as some already do.
    2. Public-serving institutions should support existing programs and 
develop new programs that assist homeowners (particularly lower- and 
middle-income homeowners) and small-scale landlords in maintaining, 
repairing, and weatherizing their historic homes, and reducing their 
energy costs through renewable energy installation. While historic tax 
credits for homeowners and small-scale landlords are one vehicle to 
help preserve historic homes, other forms of assistance are needed. 
Support is particularly critical in the case of low- and middle-income 
housing and can help assist in discouraging displacement of long-term 
residents in established neighborhoods. Financial constraints of owners 
can lead to a spiral of deferred maintenance and an inability to lower 
utility costs through weatherization and energy retrofitting, 
potentially leading to eventual vacancy and demolition of buildings. 
Types of assistance--with an emphasis on retention and repair of 
historic materials--that should be considered include the following: 
grants and low-cost loans for repairs and hazard mitigation 
(remediation of lead-based paint, asbestos, mold, etc.); do-it-yourself 
support through materials warehouses, tool sharing programs, and 
training workshops; free or low-cost energy audits; and job training 
programs focused on historic home repair.
    3. Public-serving institutions should support zoning code changes 
that encourage greater density and availability of housing in tandem 
with preserving historic buildings, that allow for mixed uses, and that 
allow housing in historic buildings in areas where it is now 
prohibited. Increasing density and expanding housing options in 
existing neighborhoods--including historic neighborhoods and historic 
districts--are potential solutions to help address the shortfall in 
housing supply. This and other changes to zoning to better balance 
competing factors--such as through the use of form-based codes--should 
be seriously explored.
    Taking into account the unique conditions of each community, 
consideration should be given to allowing and incentivizing ``density 
without demolition'' through: conversion of historic single-family 
dwellings to multi-family dwellings; creation of accessory dwelling 
units, either in rehabilitated historic structures or through 
compatible new construction; removal or reduction of minimum parking 
requirements in historic neighborhoods; enabling transfer of 
development rights to incentivize rehabilitation of historic buildings 
while allowing new development in alternative locations; adoption of 
procedures and permitting incentives to facilitate the reuse of 
existing buildings for housing; and compatible infill construction of 
multi-family housing on vacant parcels in historic districts. More 
guidelines, pattern books, best practices, and other resources are 
needed to help assist local governments and developers in implementing 
additional density in a manner most compatible with a community's 
historic buildings. Proactive efforts should be made, however, to 
ensure ``density without demolition'' also means ``density without 
displacement,'' so that long-term residents are not priced out of 
living in their historic homes and neighborhoods.
    Many zoning codes prohibit historic buildings in certain areas from 
being converted into housing. There is a significant need to rezone 
neighborhoods filled with office and commercial buildings for 
residential use. In addition, large-scale historic industrial 
buildings, like New England mill buildings, are often zoned for 
industrial purposes, even in locations where manufacturing seems 
unlikely to return. And finally, public-serving institutions should 
consider zoning for historic Main Streets, which organically developed 
with housing mixed with (and usually above) shops but which are too 
often now subject to prohibitions on residential uses enacted through 
ever-stricter zoning codes. Upper stories can be returned to 
residential use and, in some instances, first-floor commercial space 
could be converted to housing. This mix of uses that proved to enrich 
small towns and larger cities alike should be allowed again through 
zoning.
    Local historic preservation commissions can play a pivotal role in 
advising on zoning changes to address the issues raised above. They, as 
well as the planners responsible for zoning code development and 
revision, should have the training and resources they need to 
understand the options and opportunities for enabling and promoting 
rehabilitation of historic buildings for housing and development of 
compatible new infill construction.
    4. Public-serving institutions should advocate for changes in 
building codes and interpretations of the Americans with Disabilities 
Act to create more flexible standards (especially for small-scale 
housing of four units or fewer) to facilitate conversion of 
nonresidential historic buildings to residential use and to prioritize 
design solutions for historic housing that ensure access and inclusion 
of disabled residents and visitors. Traditional building codes tend to 
focus on new construction to the detriment of rehabilitation of 
historic buildings, particularly for affordable housing. Property 
owners wishing to undertake renovations, regardless of their scope, are 
often confronted with requirements to bring a historic building into 
full compliance with the building code requirements for new 
construction. Cities and states should consider adoption of 
performance-based rehabilitation building codes (such as the 
International Existing Building Code) or other building code changes to 
provide needed flexibility and better relate building code requirements 
to the scale of projects. This also would facilitate new approaches to 
housing development, such as conversion of underused office and retail 
buildings-including those that are historic-for use as housing.

[[Page 11851]]

    The American with Disabilities Act prohibits public-serving 
institutions from discriminating on the basis of disability in 
providing or making available housing. Public-serving institutions 
should give full consideration of all that is needed to ensure 
accessibility for users of housing, including historic properties used 
for housing. Interpretations of the Americans with Disabilities Act by 
public officials should prioritize the need to provide accessible 
environments to all users of housing in historic buildings. Collecting 
successful examples of projects that promote both preservation ideals 
and accessibility could be useful to many different actors. It also is 
imperative that planners, local historic preservation commission 
members and staff, and building inspectors have the training and 
resources they need to understand the code enforcement options 
available for the rehabilitation of historic buildings for housing and 
development of compatible new infill construction.
    5. Public-serving institutions should seek to promote thoughtful 
energy retrofitting during rehabilitation of historic buildings for 
housing. Most states have adopted energy conservation codes to enhance 
creation and operation of energy efficient buildings. Widely used codes 
and standards often include options for exempting historic buildings in 
situations where full compliance would damage their historic design and 
materials. However, as the climate crisis becomes more acute, use of 
such waivers may increasingly be seen as seen as problematic, 
discourage reuse of historic buildings for housing, and cause 
disproportionate and adverse health or environmental impacts on already 
overburdened communities with environmental justice concerns. More 
guidelines, best practices, and other resources are needed to help 
promote energy retrofitting of historic buildings used for housing in a 
manner most compatible with their historic character.
    6. Federal, state, Tribal, and local governments should lead by 
example through disposition or outleasing of excess or underutilized 
historic government buildings for housing development. Government 
building inventories often include structures that are no longer needed 
to facilitate agency missions and that are vacant or underutilized. 
Enhanced use of telework and remote work, sparked by the COVID-19 
pandemic, has further increased the amount of government office space 
that is underused. Governments at all levels should examine the 
opportunities inherent in excess and underutilized government 
buildings-including those that are historic-to create housing through 
office-to-housing conversions and other adaptive use. Strategic 
disposal (with protective covenants) and leasing to nongovernmental 
partners should be considered. Section 111 of the NHPA and other 
agency-specific authorities allow Federal property-managing agencies to 
outlease historic buildings (or portions thereof) to nonfederal 
parties. Federal agencies should identify and remove impediments to 
outleasing their historic buildings, with consideration given to the 
recommendations of the ACHP's 2021 report, Leveraging Federal Historic 
Buildings.
    7. The Federal government should expand upon its guidance regarding 
reuse and rehabilitation of historic properties for housing and should 
encourage flexible yet consistent application of such guidance. Federal 
standards and guidelines significantly influence the rehabilitation of 
historic properties, public and private alike, because they are often 
adopted or adapted by state and local governments, as has been the case 
with the Secretary's Standards. The Federal government should add to 
and flexibly apply its guidance on the treatment of historic properties 
in ways that will incentivize housing development, particularly of 
affordable housing, and facilitate adapting nonresidential buildings to 
housing. Likewise, additional guidance is needed on remediating 
environmental, health, and safety hazards when rehabilitating historic 
buildings and providing access for persons with disabilities. The 
Federal government, particularly agencies that fund housing 
development, also should accelerate the development of guidance on the 
benefits of rehabilitating historic housing (including historic public 
housing) and of adapting historic commercial buildings for use as 
housing. Enhanced recommendations and training are needed to encourage 
reuse of historic buildings and promote project planning and review 
that are adaptable yet consistent.

Accelerate Project Permitting and Environmental Review

    8. Federal, state, Tribal, and local governments should expedite 
development of housing projects through efficient and effective 
permitting processes and environmental reviews while still ensuring 
full consideration of potential impacts to historic properties. 
Addressing the problem of insufficient housing supply will require 
widespread large-scale and small-scale projects, both for new 
construction and for rehabilitation of historic and other existing 
buildings. Environmental reviews and permitting processes for such 
projects, especially small-scale projects with limited impacts, should 
be managed in such a way as to proceed expeditiously. However, 
potential adverse effects to historic properties must be carefully 
addressed, whether they be physical or visual impacts to historic 
properties from new housing construction or effects to the historic 
qualities of historic buildings that are being rehabilitated. It also 
is important that actions not be taken that result in the damage or 
destruction of historic properties prior to applicants seeking tax 
credits and government funding, and prior to agencies completing 
environmental review.
    Efficient permitting and environmental review depends in large part 
upon the funding and staffing capacity of the government agencies at 
all levels participating in the reviews. It is vitally important to 
build capacity for historic preservation review within Federal 
agencies, State and Tribal Historic Preservation Offices, and local 
historic preservation commissions, and to provide robust training for 
staff. Public-serving institutions also should seek to educate 
communities and project sponsors on environmental review requirements; 
their roles in those review processes; the need to initiate 
environmental review early in planning; and the importance of flexible 
consideration of project alternatives.
    Current housing needs pose complex challenges that need to be 
addressed on an increasingly accelerated timeline, and it is important 
that environmental reviews be rooted in flexibility and creativity. The 
section 106 regulations provide for development of program alternatives 
to tailor and expedite the review process while at the same time 
ensuring the consultation process is accessible, meaningful, and 
transparent to the wide variety of consulting parties and 
stakeholders.\6\ Program alternatives already are in use for a variety 
of housing-related projects and programs. The ACHP will explore further 
opportunities to use program alternatives to expedite housing 
development, as should other Federal agencies. Federal agencies also 
should explore how best to integrate section 106 review with review 
under the National Environmental Policy Act, based on options available 
in the section 106 regulations and advice in NEPA and NHPA: A Handbook 
for Integrating

[[Page 11852]]

NEPA and Section 106, issued by the ACHP and the Council on 
Environmental Quality in 2013. Policy Principle #9 offers further 
recommendations on flexibly proceeding through section 106 review 
specifically for housing projects.
---------------------------------------------------------------------------

    \6\ 36 CFR 800.14.
---------------------------------------------------------------------------

    9. All participants in section 106 review of housing projects 
should approach the review flexibly in keeping with the following 
principles and any applicable implementing guidance from the ACHP. In 
keeping with section 110(f) of the NHPA,\7\ which requires Federal 
agencies to minimize harm to National Historic Landmarks to the maximum 
extent possible, the following provisions should not apply to National 
Historic Landmarks. The ACHP plans to issue implementing guidance on 
effect determinations under section 106, including addressing the 
potential adverse effects of housing projects to the interiors of 
historic buildings.
---------------------------------------------------------------------------

    \7\ 54 U.S.C 306107.
---------------------------------------------------------------------------

    a. Review of effects on historic districts made up of buildings 
should focus on effects to exterior features. Section 106 review of 
effects focuses on potential alterations to the characteristics that 
qualify a property for listing in the National Register. The 
significance of a historic district comprised of buildings is typically 
associated in large part with the exterior features of the buildings, 
which cumulatively convey the significance of the overall district and 
qualify it for inclusion in the National Register. Accordingly, unless 
a building in a district is listed or considered eligible for listing 
in the National Register as an individual property or specific interior 
elements contribute to maintaining a historic district's character, 
review under section 106 should focus on proposed changes to the 
exteriors of the district's buildings.
    b. Consultation should consider the overall preservation and 
housing goals of the community. When assessing, and negotiating the 
resolution of, the effects of housing projects on historic properties, 
consultation should focus not simply on individual buildings but on the 
historic preservation goals of the broader neighborhood or community. 
If the affected historic property is a historic district, the agency 
official should assess effects on the historic district as a whole.
    c. When possible, plans and specifications should adhere to the 
Secretary's Standards, taking into account the economic and technical 
feasibility of the project. The Secretary's Standards outline a 
consistent national approach to the treatment of historic properties 
that can be applied flexibly in a way that relates to local character 
and needs and project requirements. Plans and specifications for 
rehabilitation, new construction, and abatement of hazardous conditions 
in housing projects associated with historic properties should strive 
to adhere to the recommended approaches in the Secretary's Standards 
when possible. However, the ACHP recognizes that there are mission-
related, economic, or other circumstances when the Secretary's 
Standards cannot be followed and that section 106 allows for the 
negotiation of other outcomes.
    When assessing effects during section 106 review and seeking to 
avoid adverse effects for housing projects, priority should be given to 
consistency with the Secretary's Standards for the exterior of 
buildings. Adverse effects to historic interior spaces and features may 
more frequently need to be accepted and resolved to facilitate reuse of 
the buildings for housing. This especially is the case for conversions 
of commercial or institutional buildings to housing and to address 
issues such as energy retrofitting, providing access for persons with 
disabilities, and hazard remediation. Projects taking advantage of the 
Federal historic tax credit must be reviewed by the National Park 
Service for adherence to the Secretary's Standards in a separate and 
distinct process that benefits from early coordination.
    d. Section 106 consultation should emphasize consensus building. 
Section 106 review strives to build consensus with affected communities 
in all phases of the process. Consultation with affected communities 
should be on a scale appropriate to that of the undertaking. Various 
stakeholders, including community members and neighborhood residents, 
should be included in the section 106 review process as consulting 
parties so that the full range of issues can be addressed in developing 
a balance between historic preservation and housing goals. See Policy 
Principle #10 regarding the importance on consultation with Indian 
Tribes and Native Hawaiian organizations, and engagement with 
disadvantaged and underserved communities, and communities with 
environmental justice concerns, including people with disabilities.
    e. The ACHP encourages streamlining the Section 106 process to 
respond to local conditions. The ACHP encourages participants to seek 
innovative and practical ways to streamline the section 106 process 
that respond to unique local conditions related to the delivery of 
housing. Programmatic Agreements are one approach to enhance efficiency 
in section 106 reviews. Some such agreements delegate the section 106 
review role of the State Historic Preservation Officer to local 
governments, particularly where local preservation ordinances exist 
and/or where qualified preservation professionals are employed to 
improve the efficiency of historic preservation reviews. Such 
agreements may also target the section 106 review process to local 
circumstances that warrant the creation of exempt categories for 
routine activities, the adoption of ``treatment and design protocols'' 
for rehabilitation and new infill construction, and the development of 
design guidelines tailored to a specific historic district and/or 
neighborhood.
    f. Archaeological investigations should be avoided or minimized for 
rehabilitation projects with minimal ground disturbance. No 
archaeological investigations should be carried out for housing 
projects limited to rehabilitation or energy retrofitting that require 
no ground disturbance. In those circumstances where minimal ground 
disturbance may be necessary to carry out rehabilitations, 
archaeological investigations should be minimized and proportional to 
the potential effects of such disturbance. Guidance on archaeological 
investigations in this context can be found in the ACHP's section 106 
Archaeology Guidance. For all other projects, archaeological 
investigation may be needed, to be determined and carried out in 
consultation with State and/or Tribal Historic Preservation Officers. 
Inadvertent discoveries related to any housing project once 
construction has begun should be addressed in accordance with the 
section 106 regulations, the ACHP's Policy Statement on Burial Sites, 
Human Remains, and Funerary Objects, applicable state burial laws, and 
the Native American Graves Protection and Repatriation Act (if 
applicable).
    10. During planning, permitting, and environmental reviews 
(including section 106 reviews) for housing projects, Federal, state, 
and local governments should consult and engage--beginning early in the 
process--with Indian Tribes, Native Hawaiian organizations (NHOs), 
disadvantaged and underserved communities, and communities with 
environmental justice concerns, including people with disabilities, and 
should explore capacity building options for supporting their 
participation in consultation. The section 106 process under the NHPA 
already requires Federal agency

[[Page 11853]]

consultation with Indian Tribes, NHOs, and other consulting parties 
regarding the impact of projects on historic properties. Here, the ACHP 
would like to emphasize the importance of consultation and engagement--
whether or not section 106 applies--with Indian Tribes, NHOs, 
disadvantaged and underserved communities, and communities with 
environmental justice concerns, including people with disabilities, all 
of whom are disproportionately impacted by the housing supply 
shortfall. Soliciting and considering their views on reuse of historic 
buildings for housing and the impacts of housing projects on historic 
properties should be done proactively, early in planning, and 
throughout environmental reviews and permitting processes.
    In some cases, limited resources may constrain the active 
participation of disadvantaged and underserved communities and 
communities with environmental justice concerns in consultation. 
Federal, state, and local government entities should consider options 
for strategic financial investments or other assistance to help with 
needed capacity development. The ACHP previously has recommended 
capacity-building support for consulting parties pursuant to the 
agency's ``Guidance on Assistance to Consulting Parties in the section 
106 Review Process.'' Since many Indian Tribes have been incorporating 
consideration of housing issues into their environmental reviews and 
permitting processes for decades, housing-related project planning 
should seek to adopt or align with existing practices and standards, 
where feasible. On trust land, Tribes should control how housing is 
developed and its location, whether as new construction or 
rehabilitation.

Gather Information

    11. Public-serving institutions should work collaboratively to 
research and share information with each other, policymakers, the 
private sector, and the public about the costs, benefits, incentives, 
and disincentives associated with rehabilitating historic buildings for 
housing. To maximize reuse of historic buildings, ongoing research and 
study are needed in order to identify opportunities, document benefits, 
shape guidance development, and disseminate best practices. Public-
serving institutions should undertake such research; recommended areas 
for study and dissemination of information include those below. 
Consistent with their missions and authorities, Federal agencies should 
provide funding and technical assistance to support state, Tribal, 
local, and nongovernmental research efforts.

Existing Government Programs

--Survey laws and financial incentives at the Federal, state, Tribal, 
and local levels that address rehabilitation of historic buildings for 
housing and assess the impact of such laws and incentives on housing 
supply, housing affordability, mixed-use development (including housing 
above ground-floor commercial), and equitably distributed development; 
and determine if such policies should be updated, modified, or expanded 
to ensure they are applied and interpreted in a flexible manner 
allowing for housing production.
--Study how well Federal programs are helping to meet the housing needs 
of Indian Tribes and disadvantaged and underserved communities, as well 
as communities with environmental justice concerns, while encouraging 
the reuse and protection of historic properties, and what changes may 
be needed to make the application process for Federal assistance more 
inclusive and easier to navigate.

Historic Properties and Neighborhoods

--Assemble information about the location, size, condition, quality of 
features, and occupancy of historic buildings in localities and assess 
those against local housing needs.
--Evaluate any links between historic designation and housing 
affordability, and between historic designation and displacement of 
residents in disadvantaged and underserved communities, and in 
communities with environmental justice concerns.
--Explore impacts of institutional real estate investment in owner-
occupied housing for rental use and (in some communities) an increase 
in short-term rentals, seasonally occupied homes, and second homes in 
historic neighborhoods.

Rehabilitation of Existing Properties for Housing

--Study the costs of rehabilitating historic buildings for housing 
relative to new construction, considering intangible and environmental 
costs and benefits in addition to monetary cost.\8\
---------------------------------------------------------------------------

    \8\ Studies should not conflate rehabilitation and adaptive use 
with restoration (defined as accurately restoring a building to its 
appearance at a particular point in time). The latter generally is 
more expensive and is not necessary for effective reuse of historic 
buildings for housing.
---------------------------------------------------------------------------

--Study the climate impacts of rehabilitating historic buildings for 
housing, including decarbonization; improved operational energy 
efficiency; climate resilience; decreased emissions through reduced 
urban sprawl; and responding to housing needs following disasters.

Preservation Workforce

--Survey the current and anticipated future state of the public sector 
preservation workforce and its expertise and capacity to handle 
environmental reviews, including section 106 reviews, of housing 
projects in a timely manner.
--Survey the current and anticipated future state of the private sector 
preservation workforce, including its ability to rehabilitate existing 
buildings for housing and conduct energy efficiency retrofits.

Educate

    12. Public-serving institutions should educate policymakers, 
housing advocates, developers, the media, and the public about the 
benefits of reusing historic buildings in housing development and 
debunk misperceptions regarding historic preservation as a barrier to 
addressing the housing supply shortfall. With increasing attention 
being paid to reusing existing buildings to help address the housing 
shortage, consciousness raising efforts are needed regarding the role 
historic buildings can play. Outreach is needed to explain: why 
historic building rehabilitation for housing is a sound financial 
investment and what incentives are available; how modern housing needs 
(including accessibility for people with disabilities) can be 
accommodated in historic buildings without sacrificing their historic 
qualities; and how rehabilitation of historic buildings for housing 
also has intangible and environmental benefits for communities.
    Countering misperceptions of historic preservation review as a 
barrier to addressing the housing shortage also is critical. 
Preservation regulations that require review of housing projects 
affecting historic properties help to preserve what makes the 
properties historically significant and give local citizens a voice in 
project planning. However, such review can be--and should be--
approached flexibly, consistently, and expeditiously, taking into 
consideration the economic and technical feasibility of each project. 
Public-serving institutions overseeing preservation reviews should 
embrace this imperative and actively work to educate all stakeholders, 
the media, and the public on how the historic preservation review 
process balances

[[Page 11854]]

consideration of housing needs and preservation of the community's 
historic places.

Collaborate

    13. Public-serving institutions and the private sector should 
cooperate and form partnerships across agencies, between levels of 
government, and within communities to enhance the implementation of 
each of the principles discussed above. The impacts of America's 
housing supply shortfall are so wide-ranging that collaboration among 
public-serving institutions, developers, financial institutions, 
philanthropic organizations, and others in the private sector is 
essential. Cooperation and forging of partnerships will enhance 
implementation of each of the principles discussed above. Federal 
agencies can take a leadership role in this regard through their own 
collaborative work and by encouraging such work through funding and 
technical assistance.
    Adopted December 22, 2023.

(END OF DOCUMENT)

    Authority: 54 U.S.C. 304102(a).

    Dated: February 12, 2024.
Javier E. Marques,
General Counsel.
[FR Doc. 2024-03164 Filed 2-14-24; 8:45 am]
BILLING CODE 4310-K6-P