What Is Section 106?
The National Historic Preservation Act (NHPA) was enacted by Congress in 1966, mandating that federal agencies consider archaeological sites during project planning, this includes undertakings they carry out, assist, fund, or permit. Section 106 of the NHPA requires that federal agencies consider potential adverse effects of a proposed undertaking on historic properties (archaeological sites) through consultation. As defined by Section 106 (“Protection of Historic Properties,” 36 CFR Part 800), historic properties are any prehistoric or historic district, site, building, structure, or object, or properties of traditional religious or cultural significance to Native American tribes that are included in or are eligible for inclusion in the National Register of Historic Places (NRHP). In order to assess the effects on historic properties, Section 106 established a four-step process to encourage consultation and mitigation in the regulation of undertakings with the potential to adversely impact historic properties (see NEPA and NHPA Handbook). These steps are outlined in the infographic for easy reference but are explained in further detail below.
The Section 106 Process Explained
All federal or federally assisted projects must undergo a determination of whether the undertaking has the potential to affect historic properties. Part of this process involves determining if historic properties are in or near the Area of Potential Effect (APE) and the federal agency identifying the consulting parties that must be involved in the Section 106 process.
The first step will be initiating Section 106. This involves the federal agency determining which parties must be included in the review process. Consultation may include the State or Tribal Historic Preservation Officer (SHPO or THPO), the local government, an applicant for federal assistant (if one is involved) and interested Native American tribes or Native Hawaiian organizations. Others who are interested in the preservation outcomes of the undertaking or those with a legal or economic interest may also be invited to be a part of the consultation process. This can include historic preservation organizations as well. The agency will also plan on involving the public in the opportunity to comment on the undertaking.
Once the Section 106 process has been initiated, the federal agency will be required to gather information to determine if there are any historic properties within the area of the undertaking that are listed or may be eligible for listing in the National Register of Historic Places (NRHP). If historic properties are identified, the agency must notify all consulting parties that were notified during the initiation process. This consultation invites the parties to share their views and comments.
There is the potential that no historic properties may be identified during the second step of the Section 106 process. If this occurs the federal agency will document its findings and seek concurrence with the SHPO/THPO. There is a 30-day review period and then the information will be made available to the consulting parties and public.
The third step in the process is determining if any of the historic properties identified could be affected by the proposed project and if those effects are considered adverse. Part of this determination comes from the federal agency’s consultation with the other participants in the review process. What is considered an “adverse effect” is anything that could diminish characteristics that qualify a property for inclusion in the NRHP. Consultation will involve finding resolutions to help minimize any adverse effects.
If it is determined that any of the identified historic properties will not be adversely affected by the proposed undertaking the federal agency will document these findings and share it with the consulting parties for a 30-day review period. The results will then be made available to the public and this will conclude the Section 106 process.
The final step in the Section 106 process is the federal agency and consulting parties working together to reach an agreement on the best course of action to resolve any potential adverse effects. The agency and consulting parties may explore various options to avoid, minimize, or mitigate adverse effects to the identified historic properties. Once a plan is put together, the SHPO/THPO (and in some cases the Advisory Council on Historic Preservation [ACHP]) must provide concurrence on the measures in order to resolve them. Once an agreement is met, a Memorandum of Agreement (MOA) or Programmatic Agreement (PA) will be created during consultation and executed prior to the undertaking being approved. This agreement documents the resolution measures agreed upon in order to resolve the identified adverse effects.
In some cases, the federal agency and the consulting parties are unable to reach an agreement. At this point, the agency must obtain formal advisory comments from the ACHP. These comments will be sent to the head of the agency who will need to make the final decision on whether the proposed project/undertaking will be able to proceed.
Source: An Introduction to Section 106 | Advisory Council on Historic Preservation (achp.gov)