Section 106

Section 106

ACHP | Working with Section 106

Section 106 Regulations (pdf file)

ACHP | Section 106 Regulations Users Guide

Review and Consultation
- Section 106 Frequently Asked Questions

What is Section 106 review?

This term refers to the federal review process designed to ensure that historic
properties are considered during federal project planning and execution. The
review process is administered by the Advisory Council on Historic
Preservation, an independent federal agency, with assistance from the State
Historic Preservation Office.

Who established Section 106?

The Congress did, as part of the National Historic Preservation Act of 1966
(NHPA). NHPA, strengthened and expanded by several subsequent amendments, today
has become the cornerstone of this country’s historic preservation policy.

Why was Section 106 created?

NHPA was enacted because of public concern that so many of our nation’s
historic resources were not receiving adequate attention as the government
sponsored much needed public works projects. In the 1960s, federal preservation
law applied only to a handful of nationally significant properties, and
Congress recognized that new legislation was needed to protect the many other
historic properties that were being harmed by federal activities.

What does NHPA say?

Section 106 of NHPA requires that every federal agency “take into
account” how each of its undertakings could affect historic properties. An
agency must also afford the Advisory Council a reasonable opportunity to
comment on the agency’s project.

What is a federal “undertaking”?

Pursuant to the October 1992 Amendments to the National Historic Preservation
Act, an “undertaking” means a project, activity, or program funded in
whole or in part under the direct or indirect jurisdiction of a federal agency,
including (A) those carried out by or on behalf of the agency; (B) those
carried out with federal financial assistance; (C) those requiring a federal
permit, license, or approval; and (D) those subject to state or local
regulation administered pursuant to a delegation or approval by a federal
agency.

What is a historic property?

For purposes of Section 106, any property listed in or eligible for the
National Register of Historic Places is considered historic. The National
Register is this country’s basic inventory of historic resources and is
maintained by the Secretary of the Interior. The list includes buildings,
structures, objects, sites, districts, and archaeological resources. The listed
properties are not just of nationwide importance; most are significant
primarily at the state or local level. The protections of Section 106 extend to
properties that possess significance but have not yet been listed or formally
determined eligible for listing.

Who initiates Section 106 review?

The federal agency involved in the proposed project or activity is responsible
for initiating and completing the Section 106 review process. Under certain
circumstances, local governmental bodies may act as the responsible agency. The
agency works with the State Historic Preservation Officer (an official
appointed in each state or territory to administer the national historic
preservation program) and the Advisory Council to do so. There can be other
participants in the Section 106 process as well. At times, local governments,
representatives of Indian tribes, applicants for federal grants, licenses, or
permits, and others may join in the review process when it affects their
interests or activities.

How long does Section 106 review take?

By law, the State Historic Preservation Office has a maximum of 30 days to
respond to most types of reviews.

For information about the Section 106 regulations and the compliance process
link to the Advisory Council on Historic Preservation’s web site at http://www.achp.gov .

Introduction

Section 106 of the National Historic Preservation Act of 1966 (NHPA) requires
Federal agencies to take into account the effects of their undertakings on
historic properties, and afford the Advisory Council on Historic Preservation a
reasonable opportunity to comment. The historic preservation review process
mandated by Section 106 is outlined in regulations issued by ACHP. Revised
regulations, “Protection of Historic Properties” (36 CFR Part 800),
became effective January 11, 2001, and are summarized below.

Initiate Section 106 process

The responsible Federal agency first determines whether it has an undertaking
that is a type of activity that could affect historic properties. Historic
properties are properties that are included in the National Register of
Historic Places or that meet the criteria for the National Register. If so, it
must identify the appropriate State Historic Preservation Officer/Tribal
Historic Preservation Officer * (SHPO/THPO*) to consult with during the
process. It should also plan to involve the public, and identify other
potential consulting parties. If it determines that it has no undertaking, or
that its undertaking is a type of activity that has no potential to affect
historic properties, the agency has no further Section 106 obligations.

Identify historic properties

If the agency’s undertaking could affect historic properties, the agency
determines the scope of appropriate identification efforts and then proceeds to
identify historic properties in the area of potential effects. The agency
reviews background information, consults with the SHPO/THPO* and others, seeks
information from knowledgeable parties, and conducts additional studies as
necessary. Districts, sites, buildings, structures, and objects listed in the
National Register are considered; unlisted properties are evaluated against the
National Park Service’s published criteria, in consultation with the SHPO/THPO*
and any Indian tribe or Native Hawaiian organization that may attach religious
or cultural importance to them.

If questions arise about the eligibility of a given property, the agency may
seek a formal determination of eligibility from the National Park Service.
Section 106 review gives equal consideration to properties that have already
been included in the National Register as well as those that have not been so
included, but that meet National Register criteria.

If the agency finds that no historic properties are present or affected, it
provides documentation to the SHPO/THPO* and, barring any objection in 30 days,
proceeds with its undertaking.

If the agency finds that historic properties are present, it proceeds to assess
possible adverse effects.

Assess adverse effects

The agency, in consultation with the SHPO/THPO*, makes an assessment of adverse
effects on the identified historic properties based on criteria found in ACHP’s
regulations.

If they agree that there will be no adverse effect, the agency proceeds with
the undertaking and any agreed-upon conditions.

If a) they find that there is an adverse effect, or if the parties cannot agree
and ACHP determines within 15 days that there is an adverse effect, the agency
begins consultation to seek ways to avoid, minimize, or mitigate the adverse
effects.

Resolve adverse effects

The agency consults to resolve adverse effects with the SHPO/THPO* and others,
who may include Indian tribes and Native Hawaiian organizations, local
governments, permit or license applicants, and members of the public. ACHP may
participate in consultation when there are substantial impacts to important
historic properties, when a case presents important questions of policy or
interpretation, when there is a potential for procedural problems, or when
there are issues of concern to Indian tribes or Native Hawaiian organizations.

Consultation usually results in a Memorandum of Agreement (MOA), which outlines
agreed-upon measures that the agency will take to avoid, minimize, or mitigate
the adverse effects. In some cases, the consulting parties may agree that no
such measures are possible, but that the adverse effects must be accepted in
the public interest.

Implementation

If an MOA is executed, the agency proceeds with its undertaking under the terms of the MOA.

Failure to resolve adverse effects

If consultation proves unproductive, the agency or the SHPO/THPO*, or ACHP
itself, may terminate consultation. If a SHPO terminates consultation, the
agency and ACHP may conclude an MOA without SHPO involvement. However, if a
THPO* terminates consultation and the undertaking is on or affecting historic
properties on tribal lands, ACHP must provide its comments. The agency must
submit appropriate documentation to ACHP and request ACHP’s written comments.
The agency head must take into account ACHP’s written comments in deciding how
to proceed.

Tribes, Native Hawaiians, and the public

Public involvement is a key ingredient in successful Section 106 consultation,
and the views of the public should be solicited and considered throughout the
process.

The regulations also place major emphasis on consultation with Indian tribes
and Native Hawaiian organizations, in keeping with the 1992 amendments to NHPA.
Consultation with an Indian tribe must respect tribal sovereignty and the
government-to-government relationship between the Federal Government and Indian
tribes. Even if an Indian tribe has not been certified by NPS to have a Tribal
Historic Preservation Officer who can act for the SHPO on its lands, it must be
consulted about undertakings on or affecting its lands on the same basis and in
addition to the SHPO.