Section 106 of the National Historic Preservation Act

Section 106 of the National Historic Preservation Act
Shorttitle	Section 106 of the National Historic Preservation Act
Enacted by	89th United States Congress
Effective date	October 15, 1966
Cite public law	Public Law 89-665
Cite statutes at large	80 Stat. 915
Signedpresident	Lyndon B. Johnson
Signeddate	October 15, 1966

Section 106 of the National Historic Preservation Act is a critical federal mandate requiring agencies to consider the effects of their undertakings on historic properties. Enacted as part of the National Historic Preservation Act of 1966, it establishes a consultation process designed to identify and protect historic resources before federal actions proceed. This procedural requirement aims to balance modern development needs with the preservation of historic places significant to the nation's heritage.

Overview and Purpose

The provision was established by the United States Congress to address growing concerns over the loss of historic sites during the mid-20th century, exemplified by the demolition of structures like New York's original Pennsylvania Station. Its fundamental purpose is to integrate historic preservation into the planning of projects involving federal funding, permits, or direct action. The law directs federal agencies to account for impacts on properties listed on, or eligible for, the National Register of Historic Places. This process is overseen by the Advisory Council on Historic Preservation, an independent federal agency created by the same act. The legal authority is implemented through regulations codified in 36 CFR Part 800.

The Section 106 Review Process

The review is a sequential consultation process initiated when a federal agency determines it has an undertaking. The first step involves identification and evaluation, where the agency, in consultation with the State Historic Preservation Office and other parties, determines if any historic properties are present in the Area of potential effects. If such properties are found, the agency assesses the undertaking's potential effects, categorizing them as "no historic properties affected," "no adverse effect," or "adverse effect." The discovery of an adverse effect triggers mandatory consultation to seek ways to avoid, minimize, or mitigate the harm. This often involves negotiating a legally binding agreement, such as a Programmatic Agreement or a Memorandum of Agreement.

Key Participants and Roles

The principal participants in the process are the federal agency carrying out the undertaking and the relevant State Historic Preservation Office. The Advisory Council on Historic Preservation provides regulatory oversight and may participate in resolving complex cases. Native American tribes and Native Hawaiian organizations are essential consulting parties for undertakings affecting properties of traditional religious and cultural significance on tribal lands or elsewhere. Other key players can include local governments, applicants for federal permits like the Federal Highway Administration, and the public, who have opportunities to provide input during the review.

Outcomes and Mitigation Measures

Successful consultation typically results in an agreement outlining specific measures to resolve adverse effects. Common mitigation strategies include redesigning the project to avoid the resource, conducting detailed documentation through Historic American Buildings Survey standards, or implementing data recovery excavations. In some cases, physical preservation in place is achieved, while others may involve careful relocation of a historic structure, as seen with the Cape Hatteras Light Station. Failure to reach an agreement can lead the Advisory Council on Historic Preservation to issue formal comments, which the agency must consider before proceeding, though these comments are not legally binding directives to stop a project.

Relationship to Other Laws

Section 106 is closely intertwined with other major environmental and cultural resource laws but serves a distinct function. It is often conducted concurrently with reviews under the National Environmental Policy Act, with the Environmental impact statement or Environmental assessment incorporating historic preservation findings. It also interacts with the Archaeological Resources Protection Act of 1979 and the Native American Graves Protection and Repatriation Act when human remains or cultural items are involved. Unlike the more prohibitive Antiquities Act of 1906, Section 106 is a process-oriented statute focused on planning and compromise rather than outright prohibition.

Criticisms and Controversies

The process has faced criticism from various sectors. Developers and some agencies, such as the United States Department of Transportation, have argued it causes delays and increases costs for critical infrastructure projects. Conversely, preservation advocates and organizations like the National Trust for Historic Preservation contend that the process is too weak, as it only mandates consideration, not protection, and can be overridden by agency decisions. High-profile controversies, such as the routing of the Dakota Access Pipeline near the Standing Rock Indian Reservation, highlight tensions between tribal consultation outcomes and final federal determinations. Debates also persist over the adequacy of mitigation, such as when documentation is accepted in lieu of physical preservation.

Category:United States federal historic preservation legislation Category:1966 in American law Category:Lyndon B. Johnson administration