Section 106 of the National Historic Preservation Act of 1966

Section 106 of the National Historic Preservation Act of 1966
Name	Section 106 of the National Historic Preservation Act of 1966
Enacted	1966
Jurisdiction	United States
Purpose	Review of federal undertakings for effects on historic properties
Administering agency	National Park Service; Advisory Council on Historic Preservation

Contents

Section 106 of the National Historic Preservation Act of 1966 Section 106 is a regulatory review process codified within a landmark federal statute, enacted alongside National Historic Preservation Act of 1966 reforms associated with Lyndon B. Johnson administration initiatives. It operates through administrative rules promulgated by the Advisory Council on Historic Preservation and implemented by the National Park Service, requiring federal agencies to consider effects on listed or eligible properties on the National Register of Historic Places when carrying out federal undertakings. Section 106 has influenced preservation practice, agency procedures, and litigation involving agencies such as the Department of Transportation, Department of Defense, and United States Postal Service.

Background and Legal Framework

Section 106 emerges from mid-20th century preservation efforts linked to figures and events like Louis Brandeis jurisprudence concerning public trusts and legislative responses to urban renewal projects exemplified by Penn Central Transportation Company v. New York City debates. The statutory scheme interacts with regulatory instruments including the National Historic Preservation Act of 1966 amendments, the Historic Sites Act of 1935 legacy, and rulemaking by the Advisory Council on Historic Preservation under the Code of Federal Regulations. Case law from courts such as the United States Supreme Court and the United States Court of Appeals for the D.C. Circuit has shaped the doctrine, with decisions referencing parties such as National Trust for Historic Preservation and agencies including the Federal Highway Administration.

Section 106 requires federal agencies like the Department of the Interior, Department of Defense, and Corps of Engineers to identify historic properties that are listed or eligible for listing in the National Register of Historic Places and to assess effects of undertakings funded, permitted, or licensed by the federal government. The framework mandates consultation with State Historic Preservation Officers (State Historic Preservation Office examples), Tribal Historic Preservation Officers such as those representing Navajo Nation interests, and the Advisory Council on Historic Preservation, and it invokes categorical exclusions and environmental review overlap with the National Environmental Policy Act of 1969 where agencies like the Environmental Protection Agency may intersect.

The consultation process engages a broad set of stakeholders including State Historic Preservation Officers, Tribal Historic Preservation Officers, local governments such as New York City Landmarks Preservation Commission, nonprofit organizations exemplified by the National Trust for Historic Preservation, project proponents like Amtrak, and consulting parties including preservation advocates from groups similar to Preservation Maryland. Federal agencies coordinate with the Advisory Council on Historic Preservation and with interested public participants in procedures that mirror stakeholder practices in projects involving entities such as Federal Aviation Administration and United States Army Corps of Engineers.

Agencies assess adverse effects by applying criteria developed under the National Register of Historic Places program and guidance from the Advisory Council on Historic Preservation, weighing factors illustrated in precedent projects involving Hoover Dam rehabilitation, Route 66 infrastructure work, or Alcatraz Island site treatment. Determinations of effect consider integrity aspects used by the National Park Service and rely on documentation standards akin to those in the Historic American Buildings Survey and the Historic American Engineering Record. Cultural and tribal concerns brought by bodies such as the National Congress of American Indians also inform assessments.

When an adverse effect is found, resolution commonly proceeds by negotiated mitigation measures recorded in a Memorandum of Agreement among the federal agency, the State Historic Preservation Officer, the Advisory Council on Historic Preservation, and consulting parties; examples include mitigation from Federal Highway Administration projects or Bureau of Land Management land use actions. Mitigation strategies range from avoidance and redesign to documentation per Historic American Landscapes Survey standards, public interpretation through partners like Smithsonian Institution, or architectural salvage coordinated with organizations such as the Library of Congress.

Litigation under Section 106 has involved plaintiffs including the National Trust for Historic Preservation, AIDS Memorial Quilt advocates in different contexts, and tribal entities from Hopi Tribe and Pueblo de San Ildefonso, often heard in the United States District Court for the District of Columbia and appellate courts. Key disputes have addressed agency compliance obligations, scope of review against precedents like Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., and remedies under the Administrative Procedure Act; outcomes have shaped interpretations of procedural duties and substantive outcomes in cases involving agencies such as the Federal Highway Administration and Department of Defense.

Implementation of Section 106 has promoted institutional practices at agencies including the Federal Energy Regulatory Commission and United States Postal Service, spurred professional fields connected to the National Conference of State Historic Preservation Officers, and fostered partnerships with academic institutions like Columbia University and University of Virginia preservation programs. Compliance has driven development of programmatic agreements for repeatable undertakings, capacity building in tribal preservation offices exemplified by Alaska Native programs, and influenced planning disciplines in contexts from urban redevelopment in Chicago to infrastructure projects in California. The statute's enduring influence is reflected in contemporary debates involving climate adaptation projects, transportation megaprojects like California High-Speed Rail, and cultural landscape stewardship by entities such as National Park Service units.