Section 106 of the National Historic Preservation Act

Section 106 of the National Historic Preservation Act
Name	Section 106 of the National Historic Preservation Act
Enacted	1966
Jurisdiction	United States
Related legislation	National Historic Preservation Act, National Environmental Policy Act, Archaeological Resources Protection Act

Contents

Section 106 of the National Historic Preservation Act

Section 106 establishes a federal review process requiring federal agencies to consider the effects of undertakings on historic properties listed in or eligible for the National Register of Historic Places and to consult with stakeholders before approval. The provision intersects with landmark statutes and agencies such as the National Historic Preservation Act of 1966, the National Park Service, the Advisory Council on Historic Preservation, the National Environmental Policy Act, and Native American tribes including the Navajo Nation and the Hopi Tribe. It has shaped projects involving entities like the Federal Highway Administration, the Army Corps of Engineers, and the Federal Aviation Administration.

Background and Legislative History

Enacted as part of the National Historic Preservation Act of 1966, Section 106 evolved amid mid-20th century preservation efforts connected to the Historic Sites Act of 1935, the rise of the National Register of Historic Places, and the activism following demolition of landmarks such as Pennsylvania Station. Early implementation engaged agencies including the National Park Service and the General Services Administration and prompted policy changes under presidents from Lyndon B. Johnson to Ronald Reagan. Major legal and administrative developments involved rulings by the United States Supreme Court and guidance from the Advisory Council on Historic Preservation, reflecting consultation precedents with tribes like the Cherokee Nation and organizations such as the National Trust for Historic Preservation.

Section 106 applies to federal undertakings funded, licensed, or permitted by agencies such as the Federal Highway Administration, the Federal Aviation Administration, the Environmental Protection Agency, and the United States Department of Agriculture. It covers historic properties listed in or eligible for the National Register of Historic Places, including resources like the Statue of Liberty, Independence Hall, Route 66 locales, and archaeological sites overseen under the Archaeological Resources Protection Act of 1979. Exemptions and interactions occur with laws such as the National Environmental Policy Act and statutes governing Indian Reorganization Act era tribal sovereignty; compliance obligations affect projects like Interstate Highway System construction, Army Corps of Engineers flood control, and Federal Emergency Management Agency disaster recovery.

The Section 106 process requires agencies to identify historic properties, assess effects, and consult with the State Historic Preservation Officer, the Advisory Council on Historic Preservation, tribal historic preservation officers from nations including the Sioux Nation and the Pueblo of Zuni, and other stakeholders like the National Trust for Historic Preservation. Procedural steps mirror standards from the Secretary of the Interior's Standards for the Treatment of Historic Properties and involve documentation formats used by the National Register of Historic Places. Case studies often cite consultations for projects affecting sites such as Alcatraz Island, Gettysburg National Military Park, Ellis Island, and Chaco Culture National Historical Park, requiring coordination with entities like the Federal Highway Administration and the Army Corps of Engineers.

Agencies apply National Register of Historic Places criteria—association with events like the Civil Rights Movement, with persons such as Martin Luther King Jr., architectural significance comparable to works by Frank Lloyd Wright or Thomas Jefferson, and archaeological importance akin to Mesa Verde National Park sites. Assessments of adverse effects consider integrity, setting, and feeling for properties from Victorian architecture districts to industrial sites like former Union Pacific Railroad facilities. Determinations draw on standards from the Secretary of the Interior: effects can be direct, indirect, or cumulative, with precedents in disputes over projects near Mount Rushmore National Memorial, Washington Monument, and Hoover Dam.

Federal agencies such as the Federal Highway Administration, the Army Corps of Engineers, the Federal Aviation Administration, and the National Park Service are responsible for initiating Section 106 review and consulting with State Historic Preservation Officers, the Advisory Council on Historic Preservation, tribal governments like the Navajo Nation and Confederated Tribes of the Colville Reservation, and stakeholders including the National Trust for Historic Preservation and local governments such as the New York City Landmarks Preservation Commission. Tribal Historic Preservation Officers and tribal governments possess consultation rights recognized through instruments influenced by the Indian Self-Determination and Education Assistance Act and cases involving repatriation under the Native American Graves Protection and Repatriation Act.

When adverse effects are found, outcomes include avoidance, minimization, or mitigation measures such as documentation following the Historic American Buildings Survey or treatment guided by the Secretary of the Interior's Standards for Rehabilitation. Agencies may negotiate a Memorandum of Agreement with signatories like the Advisory Council on Historic Preservation, State Historic Preservation Officers, tribes such as the Cherokee Nation, and proponents including the Federal Highway Administration. Enforcement and dispute resolution have involved litigation in the United States Court of Appeals and interventions by the United States Department of Justice and the Advisory Council on Historic Preservation, shaping remedies in cases tied to projects near sites like Gettysburg National Military Park and Alcatraz Island.