Preservation of Historic Properties
Section 106 of the National Historic Preservation Act (NHPA), 54 USC § 306108 establishes a process for review of Federal undertakings and their effects on historic properties. The provision requires Federal agencies to consider the effects on historic properties of projects they carry out, assist, fund, permit, license, or approve. More specifically, Section 106 requires Federal agency heads to take into account effects of their proposed undertakings on historic properties (which are defined as properties eligible for listing or listed in the National Register of Historic Places) prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license. Section 106 also requires Federal agency heads to provide the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment.
While it does not mandate preservation, Section 106 is related to other NHPA provisions designed to further national historic preservation policy goals. For example, Section 110 (54 USC § 306101) sets out responsibilities intended to ensure that preservation is integrated into agency programs.
Standard Review Process
The ACHP’s implementing regulations for Section 106 of the NHPA, “Protection of Historic Properties” (36 CFR Part 800) provide federal agencies with a standard review process for their compliance with Section 106 for their undertakings. Federal undertakings are defined both in the NHPA and the ACHP’s Section 106 Regulations 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 (54 USC § 300320; 36 CFR § 800.16(y)).
If such an action can only occur because of Federal involvement, it is likely an undertaking. The threshold for requiring compliance with Section 106 is met when an agency proposes to carry out, license, permit, or fund an undertaking that is the type of activity with the potential to affect historic properties, assuming historic properties are present. While it does not mandate preservation, Section 106 is related to other NHPA provisions designed to further national historic preservation policy goals. For example, Section 110 (54 USC § 306101) sets out responsibilities intended to ensure that preservation is integrated into agency programs.
Learn more about Section 106 and what we do to provide assistance in each of these areas.