SECTION 106 OF THE NHPA
Section 106 (54 U.S.C. 306/08; Formerly 16 U.S.C. 470f) — Advisory Council on Historic Preservation, comment on Federal undertakings)
What does it actually say?
The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under Title II of this Act a reasonable opportunity to comment with regard to such undertaking.
• Critical pieces are Section 106 of NHPA and the regulatory process implementing Section 106, found at 36 Code of Federal Regulations (CFR) Part 800
• Requires federal agencies to take into account the effects of their actions on historic properties
• Together, Section 106 and 36 CFR 800 are a decision-making process; are dependent on consultation among stakeholders; and aim to seek mutually satisfactory resolution of conflicts between development and historic preservation
What is the process?
NHPA’s Section 106, and the implementing regulations at 36 CFR 800, define a process for federal agencies to follow (first image). Often depicted similar to the image included below, the process is not necessarily linear, nor is there a strict, prescribed formal order of events. Many federal agencies have Programmatic Agreements (PAs) that define a specific alternative process to 36 CFR 800—either for specific project types, specific resource categories, specific funding mechanisms, etc.—that allow for streamlined review under the NHPA. The Section 106 process can also be coordinated with review under the National Environmental Policy Act (NEPA), which can help in streamlining certain aspects during the identification, consultation, and public outreach phases.
Initiation
Common to any Section 106 review is the first step: Initiation. Any project involving federal land, money, or permits requires the lead federal agency to “take into account” the potential for that project to affect historic properties. Changes to a school lunch program supported by federal grant money? Section 106 applies. This is an example where a PA would be in place to immediately exempt such a change from further Section 106 review, and the PA itself satisfies the requirements of NHPA Section 106. On the contrary, federal grant money to support an addition to a high school constructed in 1927 likely will need to move to the next step of the process: Identification.
Identification
During the identification phase, experts in historic properties coordinate with federal and state or tribal agencies, along with other interested stakeholders (second image), to establish an area of potential effects (APE) and identify what historic properties are present. Once the properties are identified through a variety of efforts (including research, survey, interviews, etc.), the federal agency continues consultation with stakeholders to assess the potential for the undertaking to affect historic properties. If properties are present and it’s determined they will be affected, the federal agency moves to the next step: Assessment of adverse effects.
Assessment of Effects
During this phase, the agency, in consultation with other stakeholders, determines whether the undertaking’s effects on historic properties will affect the characteristics qualifying the properties for listing in the NRHP. If so, the effects are determined to be adverse effects and the agency moves to the next stage: Resolution of adverse effects.
Resolution
Again in consultation with stakeholders, the federal agency must move to avoid, minimize, or mitigate the adverse effects. Usually this occurs through the development of a Memorandum of Agreement or a Programmatic Agreement, which is a legal document outlining the stakeholders’ responsibilities for resolution of the adverse effects. These can range from archaeological excavation to Historic American Building Survey (HABS)/Historic American Engineering Record (HAER) documentation or any mitigation strategy to help alleviate the loss of one of our limited number of historic properties.
Chicamacomico Life Saving Station on the Outer Banks of North Carolina
According to the Advisory Council for Historic Preservation (ACHP; ACHP 1997), to be eligible for the National Register of Historic Places, the quality of significance in American history, architecture, archaeology, and culture is present in districts, sites, buildings, structures, and objects that possess integrity of location, design, setting, materials, workmanship, feeling, and association, and:
a) that are associated with events that have made a significant contribution to the broad patterns of our history (e.g., USS Arizona, bombing of Pearl Harbor); or
b) that are associated with the lives of persons significant in our past (e.g., Ford’s Theatre); or
c) that embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant or distinguishable entity whose components may lack individual distinction (e.g., The Robie House, by Frank Lloyd Wright); or
d) have yielded, or may be likely to yield, information important in prehistory or history (Sanilac Petroglyphs, Michigan).
There are also Criteria Considerations, please refer to NR Bulletin 15.
To be included in the NRHP, a property must meet one of the criteria for evaluation and must possess integrity. Integrity is the authenticity of a property’s historic identity as demonstrated by its physical characteristics that existed during the period represented by the property, and also defined as a characteristic of a property that both renders it significant to modern cultural groups and is representative enough of its historic quality that a person from the represented period would be able to recognize its value as it exists today.
Note that additionally, Traditional Cultural Properties/Places (TCPs) are a specific category of historic property established by the National Park Service’s Bulletin 38, Guidelines for Evaluating and Documenting Traditional Cultural Properties. These must still meet at least one of the NRHP criteria above, and include properties that are eligible for inclusion in the National NRHP based on their associations with the cultural practices, traditions, beliefs, lifeways, arts, crafts, or social institutions of a living community. TCPs are rooted in a traditional community’s history and are important in maintaining the continuing cultural identity of the community. These properties are best identified by consulting directly with members of the community in question.
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