Section 106

Section 106
Name	Section 106
Jurisdiction	United States
Enacted	1966
Statute	National Historic Preservation Act
Status	in force

Section 106

Section 106 is a provision of the National Historic Preservation Act of 1966 that establishes a review process for federal undertakings affecting historic properties. It requires federal agencies to take into account the effects of their actions on properties listed or eligible for listing in the National Register of Historic Places and to consult with stakeholders to avoid, minimize, or mitigate adverse effects. The provision intersects with federal agencies, State Historic Preservation Officers, Tribal Historic Preservation Officers, the Advisory Council on Historic Preservation, and numerous preservation and development interests.

Background and Purpose

Enacted as part of the National Historic Preservation Act of 1966, the provision arose from policy debates involving the National Register of Historic Places, the National Trust for Historic Preservation, and responses to urban renewal projects like the demolition associated with the Pennsylvania Station controversy. Influential figures and institutions such as President Lyndon B. Johnson, the Historic American Buildings Survey, and the United States Department of the Interior shaped the legislative text alongside advocacy from the National Park Service and Congressional Committee on Interior and Insular Affairs. The original intent emphasized balancing federal infrastructure programs like the Interstate Highway System and federal construction with preservation concerns championed by organizations such as the National Building Museum and preservation leaders including members of the American Institute of Architects and the Society of Architectural Historians.

Legal Framework and Key Provisions

The statutory core requires agencies to identify historic properties through criteria established by the National Register of Historic Places and to assess effects under regulations promulgated by the Advisory Council on Historic Preservation. The process mandates consultation with State Historic Preservation Officers, Tribal Historic Preservation Officers, and affected parties including owners and local governments like New York City Landmarks Preservation Commission or county historic commissions. Key legal authorities shaping interpretation include decisions by the United States Supreme Court, precedents from the United States Court of Appeals for the D.C. Circuit, and advisory opinions from the Advisory Council on Historic Preservation. Implementing regulations are found in the Code of Federal Regulations and are applied alongside other statutes such as the National Environmental Policy Act and laws administered by the Department of Transportation, Department of Defense, and Department of Housing and Urban Development.

Process and Implementation

The review process begins with identification of potential historic properties using criteria from the National Register of Historic Places and inventories often prepared by the National Park Service or State Historic Preservation Offices in coordination with local institutions like the Smithsonian Institution or regional historical societies. Agencies determine undertaking scope and effects, engage in consultation with parties including Tribal Nations represented by organizations such as the National Congress of American Indians and consultative bodies like the Advisory Council on Historic Preservation. Where adverse effects are found, participants negotiate Memoranda of Agreement involving mitigation measures such as documentation under the Historic American Buildings Survey or treatment plans developed with input from entities like the National Trust for Historic Preservation. Complex projects undertaken by the Federal Highway Administration, Federal Transit Administration, Department of Defense, or General Services Administration often employ programmatic agreements to streamline reviews.

Impact on Preservation and Development

The provision has influenced landmark preservation campaigns involving sites like Pennsylvania Station, Alcatraz Island, Mount Rushmore, and historic districts in cities such as Boston, Philadelphia, Chicago, and New Orleans. It affects major infrastructure projects including corridors overseen by the Federal Highway Administration and transit expansions by agencies like the Metropolitan Transportation Authority (New York). Preservation outcomes have included rehabilitation projects utilizing tax incentives administered by the Internal Revenue Service and partnerships with non-governmental organizations such as the National Trust for Historic Preservation and local preservation trusts. The provision also shapes federal funding decisions by agencies like the National Endowment for the Arts and the National Endowment for the Humanities when projects implicate historic properties.

Criticisms and Legal Challenges

Critics including developers, transportation agencies, and some federal agencies have argued that the provision can delay projects and create regulatory uncertainty, citing disputes involving the United States Court of Appeals for the Second Circuit and the Supreme Court of the United States. Tribal governments and preservation advocates have raised concerns about consultation adequacy in litigation before courts such as the United States District Court for the District of Columbia and the United States Court of Appeals for the Ninth Circuit. Legal challenges have addressed issues of standing, scope of review, and the interplay with statutes like the National Environmental Policy Act and federal agency mandates administered by the Department of Transportation and the Department of Defense. Reform proposals have been advanced by congressional committees including the House Committee on Natural Resources and stakeholders such as the American Planning Association and the Urban Land Institute.

Notable Cases and Examples

Notable administrative and judicial matters involving the provision include reviews and litigation over projects at Route 9W, preservation disputes at Pennsylvania Station, controversies surrounding Alcatraz Island reuse plans, and consultations involving Native American tribes over sites on public lands such as Bear Butte and Monument Valley. High-profile agency cases have involved the Federal Highway Administration and projects like the Big Dig in Boston, transit expansions by the Metropolitan Transportation Authority (New York), and base realignment actions by the Department of Defense. Consultations with Tribal Historic Preservation Officers have featured in cases before the United States Court of Appeals for the D.C. Circuit and settlement agreements negotiated with the Advisory Council on Historic Preservation and the National Park Service.

Category:United States federal historic preservation law