by Drew Alberti
One of the most common questions I get from municipalities and nonprofit partners is whether they really have to deal with SHPO review if a building isn’t listed on the National Register. Someone will say, “It’s not historic,” or “It’s not on any register,” or “This is just basic improvements — SHPO won’t care.” I understand why people think that. Unfortunately, that’s not how historic preservation compliance works.
Historic preservation review isn’t triggered by listing status. It’s triggered by funding and approvals. If your project involves federal funding, a federal permit, or a federal approval, it falls under Section 106 of the National Historic Preservation Act (54 U.S.C. § 306108), implemented through 36 CFR Part 800. If your project involves New York State funding or a state agency approval, it falls under Section 14.09 of the New York State Parks, Recreation and Historic Preservation Law.
In many New York projects — especially those involving programs like CDBG, HOME, NYMS, or other state-administered grants — both Section 106 and Section 14.09 apply at the same time. The federal and state frameworks operate in parallel and are typically reviewed by the same office: the New York State Historic Preservation Office (SHPO), housed within OPRHP.
The most important point to understand is that both laws apply to properties that are listed on or eligible for listing on the National Register of Historic Places. Under 36 CFR § 800.16(l), a “historic property” includes properties eligible for listing — not just those formally designated. That means a building does not need to be on a register, and it does not need a plaque, for review to be required. Eligibility is often determined during the review itself.
Once review is triggered, the analysis is relatively consistent under both federal and state law. Are there historic properties within the area of potential effects? Are they listed or eligible? And will the proposed undertaking result in what the regulations call an adverse effect?
Under 36 CFR § 800.5, an adverse effect occurs when a project alters characteristics that qualify a property for listing in a way that diminishes its integrity — whether through demolition, removal of distinctive materials, incompatible façade alterations, or ground disturbance in archaeologically sensitive areas. Section 14.09 uses slightly different statutory language, but the substantive impact analysis is aligned.
At this point, some assume SHPO’s decision is subjective — that it comes down to preference. In reality, SHPO’s review is grounded in the Secretary of the Interior’s Standards for the Treatment of Historic Properties, issued by the National Park Service. These Standards form the national framework for evaluating work on historic buildings and guide both Section 106 compliance and state-level review.
Most publicly funded building projects are evaluated under the Rehabilitation Standards. Rehabilitation recognizes that buildings must evolve to remain useful, but it requires preservation of historic character. The Standards emphasize repair rather than replacement where feasible, retention of character-defining features, and ensuring that new work matches historic design, proportion, and materials where appropriate. Additions must be compatible but distinguishable so the historic fabric remains legible.
Understanding that framework changes how projects should be structured. If original wood windows are proposed for replacement, the question is not simply performance. The question becomes whether they can be repaired, whether they define the building’s character, and whether replacements reflect the historic design. If masonry is failing, repair methods matter. If a building addition is proposed, scale, massing, and compatibility are evaluated against the Standards.
The regulations tell you when review is required. The Secretary’s Standards tell you how the work will be evaluated.
Timing is another area where municipalities run into trouble. Under HUD’s environmental review regulations at 24 CFR Part 58 — particularly §§ 58.5 and 58.22 — funds may not be committed and physical work may not begin until Section 106 compliance is complete. Section 14.09 likewise requires consultation before state agencies approve or fund a project. Historic preservation review cannot be done retroactively. Once construction begins, funding eligibility can be jeopardized.
In New York, both federal and state reviews are initiated through the Cultural Resource Information System (CRIS), maintained by OPRHP. A clear submission — defined scope of work, mapped location, photographs of existing conditions, and adequate documentation — allows SHPO to evaluate the project efficiently. Vague scopes slow the process. Clear scopes move it forward.
At the end of the day, Section 106 and Section 14.09 reflect the same underlying principle: when public funds or governmental approvals are involved, impacts to historic and cultural resources must be identified and considered before a project proceeds.
The trigger is the undertaking.
The threshold is eligibility.
The evaluation is guided by nationally recognized preservation standards.
The absence of a listing doesn’t remove the obligation. But once you understand how SHPO review works — and how Section 106 compliance and Section 14.09 fit together — preservation review becomes a predictable part of responsible project delivery, not a mystery and not a barrier.
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Key References
National Historic Preservation Act (Section 106)
54 U.S.C. § 306108
Implementing regulations: 36 CFR Part 800
HUD Environmental Review Regulations
24 CFR Part 58 (see §§ 58.5 and 58.22)
New York State Parks, Recreation and Historic Preservation Law
Section 14.09
New York State Historic Preservation Office (SHPO) & CRIS Portal
https://parks.ny.gov/shpo
https://cris.parks.ny.gov
Secretary of the Interior’s Standards for the Treatment of Historic Properties
https://www.nps.gov/orgs/1739/secretary-standards-treatment-historic-properties.htm