National Historic Preservation Act of 1966 (NHPA), As Amended
A cow examines an archeological excavation undertaken at Appomatox Court House National Historic Park prior to park improvements. (Allen Cooper)
Determining eligibility and resolving adverse effects of federal actions on archeological resources under NHPA often involves several phases of archeological activity from scoping to surveying (Phase I) to testing to full excavation or mitigation (Phase III).
Although the information in the National Register is part of the public record, Section 304 of the NHPA, as amended in 1992 and Section 9(a) of the Archeological Resources Protection Act (see below) provide the legal authority for restricting information about archeological properties. Such information may be withheld from the public if:
- disclosure will cause a significant invasion of privacy
- disclosure will risk harm to the historic resource, or
- disclosure will impede the use of a traditional religious site by practitioners.
Section 106: Section 106 of the National Historic Preservation Act 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 on such undertakings. The procedures in this part define how Federal agencies meet these statutory responsibilities. The section 106 process seeks to accommodate historic preservation concerns with the needs of Federal undertakings through consultation between the Agency Official and other parties with an interest in the effects of the undertaking on historic properties, commencing at the early stages of project planning. The goal of consultation is to identify historic properties potentially affected by the undertaking, assess its effects and seek ways to avoid, minimize or mitigate any adverse effects on historic properties.
The Agency Official must complete the section 106 process “prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license.” This does not prohibit an Agency Official from conducting or authorizing nondestructive project planning activities before completing compliance with Section 106, provided that such actions do not restrict the subsequent consideration of alternatives to avoid, minimize or mitigate the undertaking's adverse effects on historic properties. The Agency Official shall ensure that the section 106 process is initiated early in the undertaking's planning, so that a broad range of alternatives may be considered.
For your information
Advisory Council on Historic Preservation: Section 106 Applicant Toolkit
The ACHP is an independent federal agency that promotes the preservation, enhancement, and productive use of our nation's historic resources, and advises the President and Congress on national historic preservation policy. It has developed this toolkit to provide information and guidance on the Section 106 process to parties who are the recipients of, or are applying for federal licenses, permits, assistance, or approvals.
Try it yourself
NPS Programmatic Agreement Toolkit
The NPS signed a programmatic agreement with other signatories that streamlines the Section 106 process, under certain conditions. Many park staff, including resource managers and superintendents, are required to take this training.