Passage of National Historic Preservation Act (NHPA) in 1966 found most federal government agencies at a loss to respond to the challenges of historic preservation, much less prepared to cope with the growing public interest it generated. Clearly, federal institutions needed help in meeting the broad historic preservation goals set for the federal government by Congress in the NHPA.
With passage of the NHPA, Congress made the federal government a full partner and a leader in historic preservation. The federal government’s role would be to provide leadership for preservation, and foster conditions under which modern society and prehistoric and historic resources can exist in productive harmony. An underlying motivation in passage of the NHPA was to transform the federal government from an agent of indifference, frequently responsible for needless loss of historic resources, to a responsible steward for future generations.
The drafters of NHPA also appreciated that transforming the role of the federal government would require a new ethic was needed throughout all levels and agencies of the federal government. One tenet of the NHPA was critical to this transformation – Section 106.
Section 106 of NHPA granted legal status to historic preservation in federal planning, decision-making, and project execution. Section 106 requires all federal agencies to take into account the effects of their actions on historic properties, and provide a reasonable opportunity to comment on those actions and the manner in which federal agencies are taking historic properties into account in their decisions.
Section 106 of the National Historic Preservation Act (NHPA) grants legal status to historic preservation in Federal planning, decisionmaking, and project execution.
Section 106 applies when two thresholds are met: 1) there is a Federal or federally licensed action, including grants, licenses, and permits; and 2) that action has the potential to affect properties listed in or eligible for listing in the National Register of Historic Places.
Section 106 requires all Federal agencies to take into account the effects of their actions on historic properties. The responsible Federal agency must consult with appropriate State and local officials, Indian tribes, applicants for Federal assistance, and members of the public and consider their views and concerns about historic preservation issues when making final project decisions.
Effects are resolved by mutual agreement, usually among the affected State’s State Historic Preservation Officer (SHPO) or the Tribal Historic Preservation Officer (THPO), the Federal agency, and any other involved parties. The ACHP may participate in controversial or precedent-setting situations.
For more information on working with Section 106, visit the ACHP’s website by clicking here.
Executive and Legislative Actions
Over the past 30 years, a number of additional executive and legislative actions have been directed toward improving the ways in which all federal agencies manage historic properties and consider historic and cultural values in their planning and assistance. Executive Order 11593 (1971) and, later, Section 110 of the NHPA (1980, amended 1992), provided the broadest of these mandates, giving federal agencies clear direction to identify and consider historic properties in federal and federally-assisted actions. The amendments of the NHPA in 1992 further clarified Section 110.
As amended in 1992, Section 110 of the NHPA outlines a broad range of responsibilities for federal agencies. Section 110 calls for federal agencies to establish preservation programs, commensurate with their mission and the effects of their activities on historic properties that provide for the careful consideration of historic properties. Section 110 also required federal agencies to designate qualified Federal Preservation Officers (FPOs) to coordinate their agency’s historic preservation activities. Click here for a complete list of Federal Historic Preservation Officers.
In 2003, the Advisory Council on Historic Preservation published advisory guidelines to assist federal agencies with real property management responsibilities in preparing the assessments and reports outlined in Executive Order 13287 – “Preserve America” (PDF format). Agencies are encouraged to use the advisory guidelines as a template to ensure that adequate, complete, and useful information is submitted to the ACHP.
Today, federal agencies that have major stewardship responsibilities for public lands and resources, or have the most frequent, significant effects on historic properties through federal assistance and regulatory programs, have substantial historic preservation responsibilities.
Streamlining the Section 106 Review Process
Since the 1979, federal agencies have had the option of devising alternate procedures for implementing Section 106. The 1979 Advisory Council on Historic Preservation (ACHP) regulations defined two options: counterpart regulations and Programmatic Agreement (PAs).
Agencies have tended to tailor the Section 106 process to their needs through agency-wide Programmatic Agreements. Section 800.14 of the current regulations illustrate several scenarios where agencies might pursue Section 106 responsibilities through a PA. A number of agencies have executed PAs with the ACHP and the NCSHPO that address a wide range of programs or undertakings.
More recently, the ACHP has expanded upon the concept of program alternatives in its 2004 revised regulations. The regulations promote alternative procedures, rather than focusing on counterpart regulations. The intent of this was to remove the impediment of requiring formal regulations to substitute for the standard Section 106 process.