Federal Historic Preservation Laws at a Glance

Federal Preservation Laws
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 Section 106 of the National Historic Preservation Act Section 102 of the National Environmental Policy Act Section 4(f) of the Department of Transportation Act
Citations 16 USC § 470f;
36 CFR Part 800
42 USC § 4332;
40 CFR Part 1500
49 USC § 303;
23 USC § 138;
23 CFR § 771.135
Properties
Protected
National Register listed or eligible. All environmental resources, including cultural and historic. Historic sites (national, state or local); parks; wildlife refuges; and recreation areas.
Triggering
Federal Action
Any proposed federal or federally-assisted "undertaking." "Major federal action." "Approval" of transportation project.
Threshold
Effect
Any "effect." "Significantly affecting the quality of the human environment." "Use" (subject to "de minimis" exception); or constructive use ("substantially impair").
Standard for Consideration "Take into account." Disclose and consider
impacts.
Avoid unless not feasible and prudent; all possible planning to minimize harm.
Procedure v. Substance Primarily procedural but may result in a substantive Memorandum of Agreement. Procedural Substantive
Mechanism for
Compliance
"Consultation;" negotiation; Memorandum of Agreement. Environmental Assessment or Environmental Impact Statement; public hearings. 4(f) determination or
chapter of Environmental Impact Statement or Environmental Assessment.
Involvement of Other Agencies State Historic Preservation Officer and sometimes the Advisory Council on Historic Preservation at the table, with an opportunity to object to effect determinations and historic significance issues. Environmental Protection Agency review; Council on Environmental Quality referral in extreme cases. Litigation is the only way to appeal agency decisions. Department of Transportation has final authority; Interior Department comments.
Litigation is the only way to appeal agency decisions.