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Section 106 of the National Historic Preservation Act
Regulations Codified: 36 CFR Part 800
Advisory Council on Historic Preservation Site:
Full Regulations and
Flow Chart
Brief Explanation:
Requires Federal agencies to take into account the effects of their
activities and programs on historic properties and provide the President’s Advisory
Council on Historic Preservation, an independent federal agency with a reasonable
opportunity to comment with regard to such undertaking. It states:
"The head of any Federal
agency having direct or indirect jurisdiction over a proposed Federal or federally
assisted undertaking in any State and the head of any Federal department or independent
agency having authority to license any undertaking shall, prior to the approval of the
expenditure of any Federal funds on the undertaking or prior to the issuance of any
license, as the case may be, take into account the effect of the undertaking on any
district, site building, structure, or object that is included in or eligible for
inclusion in the National Register. The head of any such Federal agency shall afford the
Advisory Council on Historic Preservation established under Title II of this Act a
reasonable opportunity to comment with regard to such undertaking."
Purpose of the Section 106 Process: The Council seeks through the
Section 106 process to balance historic preservation concerns with the needs of Federal
undertakings. It is designed to identify potential conflicts between the two and to help
resolve such conflicts in the public interest.
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 at the Federal level,
by the President's Advisory Council on Historic Preservation, and at the state level by
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 public works projects. In the 1960's, 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 Council a reasonable opportunity to comment on
the agency's project. This is in order to balance the federal undertaking and mission of
the agency against the historic properties to best represent the public interest and to
prevent arbitrary destruction of historic resources with federal funds.
What is a federal undertaking? This term includes a broad range of
federal activities: construction, rehabilitation, and repair projects; licenses, permits,
loans, loan guarantees, and grants; leases; federal property transfers; and many other
types of federal involvement. Whenever one of these activities affects an historic
property, the sponsoring agency is obligated to seek Council comments.
What is historic property? For the Purposes of Section 106, any
property listed in or eligible for listing in the National Register of Historic Places is
considered historic. The National Register of Historic Places is this country's basic
inventory of historic resources and is maintained by the Secretary of the Interior and
managed by the National Park Service. 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. It is
important to note that the protections of Section 106 extend to properties that possess
significance but have not yet been listed or formally determined eligible for listing.
Even properties that have not yet been discovered (such as archaeological properties), but
that possess significance, are subject to Section 106 review.
How does Section 106 Work? The standard review process is spelled
out in federal regulations issued by the Advisory Council on Historic Preservation,
entitled "Protection of Historic Properties." The regulations appear in the U.S.
Code of Federal Regulations at 36 CFR Part 800.
The process involves 5 basic steps:
Step 1: Identify and evaluate historic properties. The Federal
agency responsible for an undertaking begins by identifying the historic properties the
undertaking may affect. To do this, the agency first reviews background information and
consults with the State Historic Preservation Office (SHPO) and others who may know about
historic properties in the area. Based on this review, the agency determines what
additional surveys or other field studies may be needed, and conducts those studies. If
properties are found that may be eligible for inclusion in the National Register of
Historic Places, but have not yet been included, the agency evaluates them against
criteria published by the National Park Service, which maintains the Register. This
evaluation is carried out in consultation with the SHPO, and if questions arise about the
eligibility of a given property, the agency may seek a formal determination of eligibility
from the Secretary of the Interior.
Step 2: Assess effects. If historic properties are found, the
agency then assesses what effect its undertaking will have on them. Again, the agency
works with the SHPO, and considers the views of others. The agency makes its assessment
based on criteria found in the Council's regulations and can make one of three
determinations:
No effect: the undertaking will not affect historic properties;
No adverse effect: the undertaking will affect one or more
historic properties, but the effect will not be harmful;
Adverse effect: the undertaking will harm one or more historic
properties.
Step 3: Consultation. If an adverse effect will occur, the
agency consults with the SHPO and others in an effort to find ways to make the undertaking
less harmful. Others who are consulted, under various circumstances, may include local
governments, Indian tribes, property owners, other members of the public, and the Council.
Consultation is designed to result in a Memorandum of Agreement (MOA), which outlines
measures agreed upon that the agency will take to reduce, avoid, or mitigate the adverse
effect. In some cases, the consulting parties may agree that no such measures are
available, but that the adverse effect must be accepted in the public interest.
If consultation proves unproductive, the agency or SHPO, or the Council
itself, may terminate consultation. The agency must submit appropriate documentation to
the Council and request the Council's written comments.
Step 4: Council Comment: The Council may comment during Step 3
of the process by participating in consultation and signing the resulting MOA. Otherwise,
the agency obtains Council comment by submitting the MOA to the Council for review and
acceptance. The Council can accept the MOA, request changes, or opt to issue written
comments. If consultation was terminated, the council issues its written comments directly
to the agency head, as the agency head had requested.
Step 5: Proceed: If an MOA is executed, the agency proceeds with
its undertaking under the terms of the MOA. In the absence of an MOA, the agency head must
take into account the Council's written comments in deciding whether and how to proceed.
Alternative approaches:
Programmatic Agreements among an agency, the Council, SHPO(s), others;
Counterpart regulations developed by an agency and approved by the Council;
An agreement between the council and a State, which substitutes a State review
system for the standard Section 106 review process.
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