Section 106 review process

Section 106 review process
Name	Section 106 review process
Jurisdiction	United States
Established	1966
Statute	National Historic Preservation Act of 1966
Administered by	National Park Service

Contents

Section 106 review process is the federally mandated consultation procedure under the National Historic Preservation Act of 1966 requiring federal agencies to consider the effects of undertakings on historic properties. It coordinates among National Park Service, Advisory Council on Historic Preservation, State Historic Preservation Officer, and other stakeholders to identify, evaluate, and resolve potential adverse effects for projects such as transportation, energy, and defense developments. The process interfaces with agencies like the Federal Highway Administration, United States Army Corps of Engineers, and Department of Transportation and draws on standards from the Secretary of the Interior.

Overview

Section 106 review applies to federal undertakings including grants, permits, licenses, and direct federal actions affecting properties eligible for listing in the National Register of Historic Places. The review ensures consultation with State Historic Preservation Officer, Tribal Historic Preservation Officer, and interested parties such as the Advisory Council on Historic Preservation and local governments like the New York City Landmarks Preservation Commission. Typical sectors engaged include projects led by the Federal Aviation Administration, Department of Energy, Environmental Protection Agency, and Bureau of Land Management.

The statutory authority derives from the National Historic Preservation Act of 1966 and implementing regulations in 36 CFR Part 800 established by the National Park Service and promulgated pursuant to guidance from the Advisory Council on Historic Preservation. Case law interpreting Section 106 includes decisions from the United States Supreme Court, United States Court of Appeals for the D.C. Circuit, and other federal courts addressing compliance obligations. Statutory cross-links include interactions with the National Environmental Policy Act of 1969 and treaty obligations involving Tribal sovereignty and various Indian treaties adjudicated in cases such as Carcieri v. Salazar.

Federal agency heads have the responsibility to initiate the review and comply with 36 CFR Part 800; agencies involved frequently include the Federal Highway Administration, Federal Emergency Management Agency, United States Army Corps of Engineers, and the Department of Defense. The State Historic Preservation Officer administers state-level identification and National Register nominations and coordinates with Tribal Historic Preservation Officers representing tribes such as the Navajo Nation and Cherokee Nation. The Advisory Council on Historic Preservation provides policy oversight, while consulting parties may include municipalities like Los Angeles, nonprofit groups such as the National Trust for Historic Preservation, and cultural institutions like the Smithsonian Institution.

The regulatory framework outlines steps: initiate, identify, assess, resolve, and document pursuant to 36 CFR Part 800. Initiation requires the federal agency to determine undertaking status and consult with the State Historic Preservation Officer, Tribal Historic Preservation Officer, and other parties such as the National Trust for Historic Preservation or local bodies like the Chicago Landmarks Commission. Identification uses surveys, archival research referencing inventories like the National Register of Historic Places and reports from institutions such as the Library of Congress and Historic American Buildings Survey. Assessment evaluates significance against National Register criteria, drawing on precedent from cases like Penn Central Transportation Co. v. New York City and methodology endorsed by the Secretary of the Interior's Standards. Resolution often proceeds via Memorandum of Agreement or Programmatic Agreement with signatories including the Advisory Council on Historic Preservation, State Historic Preservation Officer, and applicants such as Amtrak or the Tennessee Valley Authority. Documentation is filed with the National Park Service.

An adverse effect occurs when an undertaking may alter characteristics that qualify a property for the National Register of Historic Places, including integrity of location, design, setting, materials, workmanship, feeling, and association as established by the Secretary of the Interior. Determinations rely on professional standards from organizations like the American Institute for Conservation and case precedents from the United States Court of Appeals for the Ninth Circuit and United States Court of Appeals for the D.C. Circuit. Resolution measures range from avoidance, minimization, mitigation, to data recovery agreements exemplified in projects by Amtrak, Federal Highway Administration, and Bureau of Indian Affairs, often formalized in Programmatic Agreements modeled on negotiated terms from the Advisory Council on Historic Preservation.

Notable Section 106 matters include reviews for large infrastructure projects such as the Alaska Gas Pipeline proposals, Big Dig (Boston), and Los Angeles Metro Rail expansions. Cases involving tribal consultations have arisen with projects near sites associated with the Nevada Test Site, the Dakota Access Pipeline, and developments affecting locations like Cahokia Mounds State Historic Site. Judicial decisions shaping practice include opinions from the United States Supreme Court and appellate decisions tied to projects by the Federal Highway Administration and United States Army Corps of Engineers. Programmatic Agreements and MOAs from projects administered by the Tennessee Valley Authority and Amtrak often serve as templates.

Critiques of the process come from stakeholders including the National Trust for Historic Preservation, tribal governments such as the Shoshone-Bannock Tribes, developers like major construction firms, and agencies like the Department of Transportation for perceived delays, inconsistent application, and limited enforcement authority of the Advisory Council on Historic Preservation. Reform proposals have been advanced by members of Congress and policy bodies such as the National Academy of Public Administration and include calls for strengthened tribal consultation rights, clearer timelines, enhanced funding for State Historic Preservation Officer offices, and programmatic streamlining used by the Federal Highway Administration and Federal Transit Administration.