Section 106

"Our sacred lands are all that remain keeping us connected to our place on Mother Earth, to our spirituality, our heritage and our lands; what’s left of them. If they take it all away, what will remain except a vague memory of a past so forgotten?"

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.