Federal Agency Compliance with Section 106 of the National Historic Preservation Act
Section 106 is the portion of the National Historic Preservation Act (NHPA) that is concerned with the review of Federal undertakings for their effects on historic properties.
A Federal undertaking is a project, activity, or program either carried out by or on behalf of a Federal agency, or is a project, activity, or program funded, permitted, licensed, or approved by a Federal agency. Undertakings may take place either on or off federally controlled property and include new and continuing projects, activities, or programs and any of their elements not previously considered under Section 106.
Section 106 requires Federal agencies to take into account the effects of their undertakings on historic properties and to provide the Advisory Council on Historic Preservation (ACHP) with a reasonable opportunity to comment. In addition, Federal agencies are required to consult on the effects of their undertakings on historic properties with State Historic Preservation Officers (SHPOs), Tribal Historic Preservation Officers (THPOs), Indian tribes (including Alaska Natives), and Native Hawaiian Organizations (NHO).
Historic properties are any prehistoric or historic districts, sites, buildings, structures, or objects that are eligible for listing or already listed in the National Register of Historic Places. Also included are any artifacts, records, and remains (surface or subsurface) that are related to and located within historic properties and any properties of traditional religious or cultural importance to tribes or NHOs.
The Section 106 regulations (36 CFR 800) place particular emphasis on consultation with THPOs, tribes, and NHOs. Federal agencies must consult THPOs, tribes, and NHOs about undertakings when they may affect historic properties to which a tribe or NHO attaches religious or cultural significance. This requirement applies regardless of the location of such historic properties.
If an historic property is not listed in or has not previously been determined eligible for the National Register then, as part of the Section 106 process, it should be evaluated by the Federal agency in consultation with the appropriate SHPO, THPO, tribes, or NHOs to determine if it meets National Register eligibility. Steps for determining eligibility can be found in National Register Bulletin 15: How to Apply the National Register Criteria for Evaluation.
If there are questions or disagreements about the National Register eligibility of an historic property, the Federal agency overseeing the undertaking can seek a formal Determination of Eligibility (DOE) from the Keeper of the National Register (see 36 CFR 63). The Keeper will then determine if the property is eligible for listing in the NRHP.
The ACHP’s regulations 36 CFR 800 (Protection of Historic Properties) govern the Section 106 process and outline how Federal agencies are to consult with SHPOs, THPOS, tribes, NHOs, other interested parties, and the public as the Federal agencies identify historic properties, determine whether and how such properties may be affected, and resolve adverse effects.
Federal agency compliance with Section 106 may place a substantial burden on THPOs, Indian tribes, and NHOs in terms of the number of undertakings each Federal agency will submit for review. Increasingly, Federal agencies have begun working with Indian tribes to develop Programmatic Agreements or consultation protocols that streamline Section 106 reviews, and help tribes limit which undertakings that the Federal agency submits for review, thereby reducing the burden on these tribes. Some Federal agencies have also assisted THPOs and Indian tribes by providing them with financial assistance for tribal monitors that work in conjunction with Federal agency archeological monitors. Such arrangements have not only helped to raise Federal agency awareness of tribal concerns about the protection of properties of cultural and religious significance to them, but have also helped THPOs and Indian tribes develop close working relationships with Federal agency partners in the Section 106 review process.