Section 106

Section 106 of the NHPA requires federal agencies to consider the effects of their actions (or undertakings) on historic properties. If an action would result in an adverse effect on one or more historic properties, the federal agency would be required to consider ways to alter the undertaking to avoid or reduce that effect. If an adverse effect would still occur, the agency would be required to resolve the effect by implementing mitigation measures. Agencies must provide the Advisory Council on Historic Preservation (ACHP)—the first and only federal agency created solely to address historic preservation issues—an opportunity to comment on the undertaking prior to the agency making a final decision. Regulations regarding protection of historic properties (36 Code of Federal Regulations Part 800) outline how federal agencies are to consult with interested parties, identify historic properties, determine whether and how the properties might be affected by an undertaking, and resolve adverse effects. The Section 106 process must be completed before the federal agency makes a final decision on the undertaking. 

A “historic property” is any prehistoric or historic district, site, building, structure, or object that is eligible for listing or already is listed in the National Register of Historic Places. Also included are any artifacts, records, and remains (surface or subsurface) related to and located within historic properties and properties of exceptional significance designated as National Historic Landmarks. Properties can be eligible for listing for their historical, archaeological, architectural, engineering, or cultural significance. Historic properties include properties of traditional religious and cultural significance to culturally affiliated Tribes.

Consultation is the cornerstone of the Section 106 process, which would be initiated in the early stages of project planning. The federal agency seeks, discusses, and considers the views of other interested parties and, where feasible, seeks agreement with them on matters arising out of the Section 106 process. The interested parties can include State Historic Preservation Officers, Tribal Historic Preservation Officers, culturally affiliated Tribes, state and local governments, organizations with a demonstrated interest in the undertaking and its effects on historic properties, and the public. Federal agencies identify historic properties and assess the effect of an undertaking on those properties in consultation with knowledgeable Consulting Parties. Agencies also work with cultural resource subject matter experts to assess the effects and determine whether they are adverse. These experts may include agency personnel, contractors, and other resource experts, including Tribal traditional practitioners.

If the effects on a historic property from the undertaking would be adverse, the federal agency develops and executes a legally binding agreement between the federal agency, ACHP, and Consulting Parties. The agreement sets forth the terms and conditions to be implemented by the agency to resolve the adverse effects of the undertaking, which can include excavating archaeological sites, photographing buildings, preparing measured drawings of engineered structures, collecting oral histories, translating historical documents, or developing educational or interpretive materials for the public.