Section 106 of the National Historic Preservation Act
Section 106 of the National Historic Preservation Act, 16 U.S.C. § 470f, in its most basic form, requires that federal agencies take into account the effects of their undertakings on properties listed or eligible for listing on the National Register of Historic Places, and to provide the Advisory Council on Historic Preservation (ACHP) with a reasonable opportunity to comment on such undertakings.
In meeting this requirement, a federal agency must identify historic properties, consider the effect its proposed action will have on any identified sites, and then consult with the State Historic Preservation Officer on ways to avoid or mitigate any adverse effects. The law does not mandate a particular result. However, it does provide a meaningful opportunity to resolve potential conflicts.
Specifically, Section 106 provides: "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."
Notwithstanding the statute's brevity, compliance with Section 106 can be complex. Federal agencies satisfy their Section 106 obligations by following: 1) the step-by-step procedures set forth by ACHP, 36 C.F.R. Part 800; 2) the procedures established under a programmatic agreement; or 3) a federal agency's environmental review process, provided that it is consistent with ACHP's regulations. A programmatic agreement is a special document adopted by a federal agency and ACHP which applies to specific programs, such as the construction of cell towers.
ACHP's procedures include: 1) determining whether Section 106 compliance is required; 2) identifying historic properties; 3) assessing effects on historic properties, 4) resolving adverse effects, including consultation with the SHPO/THPO and adoption of a Memorandum of Agreement; and, finally, 5) the submission of a formal request for ACHP's comments in the event that adverse effects are not resolved.
Detailed information on the Section 106 review process is available on the Advisory Council's website.
Layperson's Guide to Preservation Law: Federal, State and Local Laws Governing Historic Resources
First published in 1997, this booklet provides a concise and comprehensible guide to federal, state and local laws governing historic resource protection. The 2008 edition includes updated information on transportation issues, eminent domain, easements, the American's with Disabilities Act, and the regulation of historic religious properties.