Recent perspectives make a simple argument: historic preservation law has become an obstacle to building the infrastructure America needs. It’s a clean story. It’s also wrong.
The argument falls apart the moment you separate what the law actually says from unsubstantiated claims. Much of the criticism rests on misconceptions about how the National Historic Preservation Act (NHPA) works, what Section 106 actually requires, and where the real bottlenecks lie.
What Congress Actually Created
Congress deliberately enacted the National Historic Preservation Act in 1966 after decades of federally funded urban renewal and highway construction erased historic neighborhoods, archaeological sites, and culturally significant places with little or no consideration of what would be lost.
Rather than prohibit development, Congress created a framework to ensure federal agencies considered historic resources before making decisions, establishing:
- National Register of Historic Places to evaluate historic significance at the local, state, and national levels.
- State Historic Preservation Offices (SHPOs) to provide state expertise during federal reviews.
- Tribal Historic Preservation Offices (THPOs) (added in 1992) to carry out preservation responsibilities on Tribal lands.
- Section 106, requiring federal agencies to consider how their projects, funding, or permits may affect historic properties before acting.
This system has endured for nearly sixty years because of the value it brings to agencies in making better-informed decisions while balancing preservation with development.
Weaponizing Section 106
A few recent claims illustrate how misconceptions about Section 106 are being used to argue for sweeping changes to a process that has worked for six decades.
“Everything is Historic”
This claim suggests that a property turning 50 years old is all it takes for it to become subject to preservation review and offering this as evidence that preservation review has become overreaching.
In reality, fifty years is simply a guideline that allows a property to be evaluated for eligibility for the National Register of Historic Places[i]. A property must still demonstrate both historic significance and physical integrity. Every year, countless properties are evaluated and determined to be ineligible.
Critics portray the use of professional judgment as evidence that the process is arbitrary. But requiring expertise is different from being subjective. Congress intentionally relied on professional evaluation because cultural significance cannot be reduced to a simple checklist.
A hypothetical scenario of a “determined opponent” dragging nearly any project into Section 106 review
This statement amounts to a gross misrepresentation of the law.
Section 106 only applies when there is a federal undertaking with the potential to affect historic properties that are listed in or eligible for the National Register. More importantly, it is the federal agency—not an opponent, not a SHPO, and not a private citizen—that determines whether Section 106 applies.
If Section 106 were routinely being weaponized, we’d expect widespread evidence of project obstruction. We don’t.
The Advisory Council on Historic Preservation’s (ACHP) own Section 106 white paper reports that approximately 120,000 projects undergo Section 106 review annually, yet only about 2,000 result in findings of adverse effects[ii]. In other words, roughly 98 percent of reviewed projects avoid adverse effects through planning and coordination.
That is not evidence of a system in crisis. It is evidence of a system functioning as intended.
Interstate Highway Example
Offered as evidence that preservation law has become unmanageable, to the contrary, this example actually demonstrates the opposite.
In 2006, the Advisory Council adopted a nationwide exemption allowing routine Interstate maintenance and improvements to proceed without individual Section 106 review while preserving review for historically significant bridges, interchanges, and other exceptional resources.
Rather than illustrating an inflexible system, it demonstrates that the existing framework already contains tools to streamline routine work without dismantling preservation protections.
The answer is not to pretend Section 106 is perfect. Like any regulatory process, it can be improved through targeted reforms, better coordination, and smarter implementation. But opportunities for improvement are not evidence that the system itself is fundamentally broken.
The Real Bottleneck Isn’t History — It’s Funding
A view from the ground tells a different story than most critics present.
SHPO offices continue doing more with limited resources. The National Park Service’s most recent Historic Preservation Fund Annual Report noting SHPOs reviewed approximately 101,200 federal Section 106 undertakings in FY 2025 alone[iii], despite SHPO funding remaining stagnant at $62.15 million annually since FY 2023. After inflation, that represents a real reduction in purchasing power. Those funds are distributed among all 59 SHPO offices nationwide, even as personnel costs and responsibilities continue to increase.
The strain, then, is not evidence that Section 106 has outgrown its purpose. It reflects Congress repeatedly assigning additional responsibilities without providing the resources necessary to carry them out.
That is a funding problem…not a definition-of-history problem.
Proposed “Fix” Misses the Point
The ACHP’s proposed rule and related Congressional discussions are not simply technical adjustments intended to improve efficiency. They amount to elimination of core elements of the carefully considered process Congress deliberately established in 1966.
The real challenge is not that too many places qualify as historic or that Section 106 is inherently unworkable. It is that Congress has consistently underfunded the Historic Preservation Fund while expecting SHPOs and THPOs to shoulder growing responsibilities. The work of identifying historic properties, evaluating effects, and assisting federal agencies has become an increasingly significant share of the workload for state and Tribal offices whose funding has not kept pace. Those capacity challenges have been compounded by recent reductions in the federal workforce, which have also diminished staffing at the Department of the Interior, the National Park Service, and the ACHP.
Meanwhile, faster and more predictable review is already achievable using tools that exist today: programmatic agreements, routine maintenance exemptions, early coordination with SHPOs, and adequate staffing. These approaches improve efficiency without weakening legal protections and often reduce litigation risk by producing better-documented decisions.
The Real Story
Section 106 has become an easy scapegoat.
Projects do not stall simply because history is considered. They stall for many reasons: project design changes, funding uncertainty, staffing shortages, environmental reviews, permitting complexity, litigation, and countless other factors.
If we truly want infrastructure reviews that are faster, more predictable, and more durable…the answer is not sidelining history. The answer is leveraging the streamlining tools already available, providing adequate funding, and bringing expertise into projects early, rather than treating preservation as an obstacle to overcome.
The problem isn’t that everything is becoming historic.
The problem is that Section 106 has become Washington’s latest punching bag: obscure enough to mischaracterize, technical enough that few people push back, and important enough that getting it wrong won’t just affect today’s projects — it will shape what remains of America’s historic places for generations.
[i] 1997. U.S. Department of the Interior, National Park Service. National Register Bulletin 15, 41-42.
[ii] 2025. Advisory Council on Historic Preservation. Section 106 Whitepaper.
[iii] 2025. National Park Service, Historic Preservation Fund Annual Report.
