106: The Loneliest Number

In reviewing agency (and other) proposals for the treatment of historic properties in response to the requirements of the National Historic Preservation Act (NHPA), I’m astonished (or would be if I hadn’t become jaded by it all) at the agencies’ inability – shared, it seems, with State Historic Preservation Officers (SHPOs), the Advisory Council on Historic Preservation (ACHP), historic preservation consultants, and even litigants seeking to protect historic places – to count beyond 106.

Agencies seem quite routinely to decide that they will demolish, relocate, or otherwise muck about with historic properties (whether known to be historic or not) without considering the following rather explicit provisions of law:

Prior to acquiring, constructing, or leasing buildings for purposes of carrying out agency responsibilities, each Federal agency shall use, to the maximum extent feasible, historic properties available to the agency… (NHPA Section 110(a)(1) [16 U.S.C. 470h-2(a)]

Notwithstanding any other provision of law, any Federal agency …..shall, to the extent practicable, establish and implement alternatives for historic properties, including adaptive use, that are not needed for current or projected agency purposes… (NHPA Section 111, [16 U.S.C. 470h-3(a)]

In simple language, with these two sections of law Congress directed federal agencies to (1) use historic buildings to house agency operations before deciding to go build new ones, and (2) figure out creative things to do with historic properties of all kinds under their control when they become surplus to their needs. But agencies quite routinely don’t do either thing, and nobody seems to do anything about it. Yes, the National Trust for Historic Preservation occasionally brings the matter up, and I suppose the ACHP talks about it in its general advice columns, but does it come up in the course of Section 106 review? Do SHPOs or the ACHP ever ask agencies about Sections 110 and 111 when the agencies come screaming in with proposals to knock down old buildings so they can build new ones? Does anybody bring it up during NEPA scoping? Not that I’ve seen. The attitude seems to be: “well, we can’t really expect the agencies to do that kind of proactive stuff.”

Maybe we can’t, but Congress did, and pretty directly told them to do it, and it strikes me that it wouldn’t hurt, from time to time, to throw that fact up in the faces of agencies that expect their consultants, SHPOs, the ACHP, and the concerned public to twist themselves into pretzels to help them fast-track their projects through the Section 106 process. I wonder what terrible things would happen if agencies were regularly reminded that NHPA continues on beyond Section 106.