Once again, I find myself being asked about how to resolve a Section 106 question in which both the responsible agency and the State Historic Preservation Officer (SHPO) seem to be agonizing over obscure abstractions without asking the obvious, first-order, real-world question of whether anybody thinks the issue is a matter of concern.
The case involves rather minor new construction on a federal facility, marginal to a complex of buildings long ago determined eligible for the National Register, and adjacent to a seemingly rather ordinary building that may (or may not) be just barely old enough to be part of the complex’s defined “period of significance.” There is great angst over whether the proposed site (a parking lot) is or is not within the “district” and whether the building “contributes to the district’s significance.”
What nobody has asked, and nobody seems to have the mother wit TO ask, is “who cares?” Despite the fact that the Section 106 regulations clearly establish that one of the very first things an agency is supposed to do in initiating review is to “identify other (than the SHPO) consulting parties” (36 CFR 800.3(f)), defined as people with “legal or economic relation to the undertaking or affected properties, or … concern with the undertaking's effects on historic properties” (36 CFR 800.2(c)(5)). Neither agency nor SHPO, it appears, has even given thought to the question of whether anybody cares if the construction occurs on the proposed site, or about the historical/architectural character of the location. When I ask about this, the response I get is “we don’t think anyone gives a damn,” and that, I would guess, is almost certainly true, but absent some effort to DETERMINE whether anyone gives a damn, the agency has, at best, a flawed administrative record. What we PROBABLY have here is a fairly easy “no adverse effect” situation, but if the agency makes that determination, without SOME effort to identify and talk with people who may be concerned, then in the perhaps unlikely event there IS someone out there who’s concerned, the agency can get caught with its pants loosely draped around its quivering ankles.
I don’t blame the agency in this case; it’s trying to juggle lots of variables that need to be addressed in planning a needed facility, and it’s just doing what it’s been long instructed to do (albeit misguidedly) to comply with 106: “go to the SHPO and ask if it’s OK.” But I DO blame the SHPO, and the National Park Service that’s supposed to be overseeing how SHPOs do their business. By not giving the agencies straight advice about what they really need to do to comply with Section 106, the SHPOs encourage agencies to blunder on and waste everyone's time building molehill issues into mountainous unnecessary complexities.
NPS needs to acquaint itself with the Section 106 regulations, which it’s shown no evidence of having read since approximately 1988, and then it needs to remind the SHPOs (who shouldn’t need it, but apparently do) that the bottom line in Section 106 review is determining the public interest, and that you can’t do that without talking to people. Which is why – yes, there IS a reason! – the regulations call for identifying consulting parties at the very beginning of the review process.
Sheesh, people, why is this so hard?