I’m seeing more and more documents in which federal agencies, consultants, and other participants in Section 106 review – even ostensible experts like State Historic Preservation Officers (SHPOs) – refer to finding something eligible for the National Register of Historic Places (NRHP) as a “designation.” Apparently they think that the eligibility determination process – and even the more flexible process of considering something eligible under 36 CFR §800.4(c)(2), involves somebody formally designating something as something. I’ve even seen “designation” used in the context of recognizing a place as a traditional cultural place (TCP).
This is nuts.
Why? Well, for one thing it’s not consistent with the regulations. But if that’s too bureaucratic or legalistic for you, there’s this: it confers some sort of god-like status on whoever’s supposed to do the “designating” – usually a federal agency, an SHPO, or the Keeper of the NRHP. They don’t just figure out that a place is eligible, they make it so.
Why is that a problem? Well, if you’re a tribe or a local group that values a place, you might just have reason to object to some fancy-pants government agency having such power over how your special place is regarded. But more practically, there’s this:
If an agency or SHPO or Keeper of the NRHP has the discretion to make a place eligible, they also have the discretion to make it not so. Apply enough political pressure to the SHPO or the agency official or the Keeper and that place that’s in the way of your project can simply stop being historic.
Why an SHPO would want to expose himself or herself to this kind of pressure is more than I can imagine, but that’s what they’re asking for when they teach people that an eligibility determination is a “designation” for which they’re responsible.
Look, a determination of eligibility is like a medical doctor’s diagnosis. When a doctor diagnoses you with gonorrhea, she’s not giving you gonorrhea, she’s saying that your symptoms meet the criteria that she’s learned indicate that you have the disease. In just the same way, when an agency official or SHPO or the Keeper “determines eligibility,” they don’t make the property eligible; they say that its characteristics – vis-à-vis the NRHP Criteria at 36 CFR §60.4 – persuade them that it is eligible.
And just as the doctor can’t cure you of the clap just by saying you don’t have it, neither can the SHPO or agency or Keeper make your place not eligible just by un-determining it. They have to be able to show that the place really doesn’t meet the Criteria after all. That’s an important protection both for historic places and for those who make determinations.
On the other hand, the eligibility determination process is realistically flexible; it’s for use in the real world where things do change. So while a real “designation” – such as that involved in actually listing something in the NRHP – is pretty much forever, what we diagnose as eligible today may be diagnosed as not eligible in ten years, or vice versa. There are very good reasons for this flexibility; as the Section 106 regulations put it at 36 CFR §800.4(c)(1):
The passage of time, changing perceptions of significance, or incomplete prior evaluations may require the agency official to reevaluate properties previously determined eligible or ineligible.
Again, it’s like a diagnosis. Last year you were in good health; this year you’re not. Last year you were sick; this year you’ve gotten well. Last year we didn’t know how to recognize bilateral whatsamalady, now we can and boy, you’ve really got it. In the same way, last year it hadn’t occurred to anyone that traditional cultural marigolds might be eligible for the NRHP, but now we’re convinced that they meet Criterion C. That’s life; change happens.
So for heaven’s sake – or for the sake of historic properties, or that of your own job security – please stop mixing eligibility determinations up with “designation.” Something’s designated when it’s placed on the NRHP or some equivalent formal list; when it’s determined eligible it’s simply found to meet one or more of the NRHP criteria.
 “If the agency official determines any of the National Register criteria are met and the SHPO/THPO agrees, the property shall be considered eligible for the National Register for section 106 purposes.”