Section 106

Overview

As massive government-sponsored construction projects, such as the interstate highway system, and urban renewal in older cities became commonplace after World War II, an estimated 25 percent of the nation's finest historic sites were lost.  In response to growing public concern, Congress passed the National Historic Preservation Act (NHPA) in 1966 (16 U.S.C. 470 et seq.).  The law established a national policy for the protection of important historic buildings and archeological sites, and outlined responsibilities for federal and state governments to preserve our nation's heritage.  

The SHPO is mandated by the NHPA to represent the interests of the state when consulting with federal agencies under Section 106 of the NHPA and to maintain a database of historic properties.  The NHPA also created the Advisory Council on Historic Preservation (ACHP), an independent federal agency in the executive branch that oversees the Section 106 review process.  In addition to the views of the agency, the SHPO and the ACHP, input from the general public and Native American tribes is also required. The responsibilities of all parties in the Section 106 review process are set forth in federal regulations developed by the ACHP as 36 CFR 800: Protection of Historic Properties.

The NHPA requires any agency issuing a federal permit or license, providing federal funds or otherwise providing assistance or approval to comply with Section 106. A few examples of projects that require compliance with this law include:

• Development activities near or above the water which require a permit from the Corps of Engineers
• the installation of cell towers which require a permit from the Federal Communications Commission
• Construction of municipal wastewater treatment facilities that require permits from the Environmental Protection Agency
• New highway construction projects by the State Department of Transportation that utilizes federal funds
• Local government projects to rehabilitate or demolish housing, using funds from the U.S. Department of Housing and Urban Development

Details about Section 106 Regulations (36 CFR Part 800)

• Section 106 Regulations
• A Citizen's Guide to Section 106 Review
• Working with Section 106 - ACHP
• "Reasonable and Good Faith Effort" by Federal Agencies Statement - ACHP
• Section 106 Flowchart
• Relationship of Section 106 to Other Laws
• Nationwide Programmatic Agreements

Section 106 Steps

STEP ONE:

The agency determines whether its proposed action is an undertaking.  An undertaking is defined as "a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a federal agency, including those carried out by or on behalf of a federal agency; those carried out with federal financial assistance; and those requiring a federal permit, license or approval".

STEP TWO:

Submit a letter to the SHPO initiating consultation for the project by defining on a map the Area of Potential Effect (APE).

STEP THREE:

Hire a professional consultant(s) to inventory all historic and archaeological resources within the Area of Potential Effect (APE) which are over 50 years old.

For further information on how to inventory historic buildings click here.

For further information on how to inventory archaeological resources click here.

STEP FOUR:

Based on the inventory of historic and archaeological resources, the agency or government should make a determination of eligibility for listing on the National Register of Historic Places for the various resources.

Properties already listed on the National Register are, of course, "eligible". Properties not yet listed are considered eligible if they meet the following criteria:

• Age - 50 years old or older
• Intergrity - resource has a high level of architectural/physical intergrity 

If there are no historic properties in the project area, or if the site is less than 50 years old, or if the site lacks integrity, the determination would be “No Historic Properties.”

STEP FIVE:

Based on the inventory of historic and archaeological resources, the agency or government should make a determination of the effect/ impact will the work will have on the eligibile resource.  Note that the "effect" needs to be determined only for eligible properties.  There are three possible effects:

• No Effect - Only minor changes are being proposed, e.g., planning or minor construction.
• No Adverse Effect - More substantial changes are proposed, but they meet Secretary of the Interior Standards.
• Adverse Effect - Work is proposed that will damage or diminish the historic integrity of the property or its research potential.

In most cases, archaeological sites receive a No Adverse Effect if the site’s value lies solely in its research potential, and the information can be preserved through appropriate research.

STEP SIX:

SHPO either concurs with the "determination(s)" and "effect" call(s) or does not concur.  If SHPO concurs, one of the following effect determinations will be made:

• No Historic Property: You are finished with the Section 106 Review consultation process.
• No Adverse Affect: You are finished with the Section 106 Review consultation process.
• Adverse Effect: The agency enters into a "Memorandum of Agreement" (MOA) to mitigate the adverse effect or submits a research design to mitigate adverse effects through proper recovery. The MOA is signed by the agency and SHPO. The federal agency submits the MOA to the Advisory Council, along with a description of the project and the alternatives that were considered to mitigate the "adverse effect." The Advisory Council has 30 days to review the project and decide if it is willing to sign the MOA. Once the MOA is signed, the documentation should be completed and accepted by designated repositories before the project begins.

If SHPO does not concur: Federal agencies may only make final determinations on their own with assistance from other federal agencies such as the Keeper of the National Register of Historic Places, or the Advisory Council on Historic Preservation.