Section 106 AT RISK!

NCSHPO

The National Conference of
State Historic Preservation Officers

Section 106

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Section 106 is at the center of several ongoing federal regulatory and legislative efforts during 2026 that could significantly affect how federal agencies, states, Tribes, and communities work together to protect historic properties.

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Section 106 of the National Historic Preservation Act requires federal agencies to consider the effects of their actions on historic properties and provide an opportunity for interested parties to participate in the decision-making process

Background

Passage of National Historic Preservation Act (NHPA) in 1966 established the federal government as a full partner and leader in historic preservation. Congress sought to transform the federal government from an agent of indifference, frequently responsible for the needless loss of historic resources, into a responsible steward for future generations.

A central element of that transformation was Section 106.

Section 106 established a role for historic preservation in federal planning, decision-making, and project execution. It requires federal agencies to take into account the effects of their actions on historic properties and provide a reasonable opportunity for interested parties to participate in the process and comment on how historic properties are being considered.

The Advisory Council on Historic Preservation (ACHP) as established by the NHPA to promote the preservation, enhancement, and sustainable use of the nation’s historic resources and advise the President and Congress on historic preservation matters. The ACHP also oversees the Section 106 regulations and provides guidance on their implementation.

In January of 2025, the ACHP launched a resources center on their webpage dedicated to information important to SHPOs with regard to the Section 106 process.

Section 106 at a glance

Section 106 applies when a federal agency is responsible for a federal undertaking that has the potential to affect historic properties (those listed or eligible for listing in the National Register of Historic Places). Federal undertakings can include federally funded, licensed, or permitted activities, as well as projects carried out directly by federal agencies.

The Section 106 process generally involves:

  1. Identifying historic properties that may be affected by the undertaking
  2. Determining effects of the undertaking on those properties
  3. Consulting with appropriate State and Tribal Historic Preservation Officers, Indian Tribes, local governments, applicants for federal assistance, and members of the public, as appropriate
  4. Resolving adverse effects through consultation when they are identified

Section 106 is a consultation process, not an approval process. The federal agency responsible for the undertaking retains decision-making authority while considering the views and concerns of consulting parties and the public.

Effects are generally resolved through consultation among the responsible federal agency, the affected State or Tribal Historic Preservation Officer, and other consulting parties, as appropriate. The ACHP may participate in cases that involve important policy issues, substantial impacts, or other circumstances warranting its involvement.

Learn more about working with Section 106

Built in Efficiency of 106

Section 106 recognizes the wide variety of federal undertakings subject to review and provides substantial flexibility for agencies to tailor the process to different types of projects.

The regulations of the ACHP (38 CFR 800) provide for the use of Alternate Procedures, Programmatic Agreements, Prototype Programmatic Agreements, Exempted Categories, Standard Treatments, or Program Comments. Learn about common alternatives. These tools can make review more efficient and predictable while maintaining appropriate consideration of historic properties and opportunities for consultation.

Executive and Legislative Actions

Over the past several decades, Congress and the Executive Branch have taken additional steps to strengthen the federal government’s stewardship of historic properties and incorporate historic preservation into federal planning and decision-making. Executive Order 11593, issued in 1971, directed federal agencies to identify, evaluate, and protect historic properties under their jurisdiction. Section 110 of the NHPA, enacted in 1980 and substantially amended in 1992, subsequently established broader preservation responsibilities for federal agencies. 

As amended in 1992, Section 110 requires federal agencies to establish preservation programs appropriate to their missions and the effects of their activities on historic properties. It also requires agencies to designate qualified Federal Preservation Officers (FPO’s) to coordinate their preservation activities.

In 2003, the ACHP published advisory guidelines to assist federal agencies with real property management responsibilities in preparing the assessments and reports required under Executive Order 13287, “Preserve America”. The guidelines provide a framework for agencies to identify and report on their stewardship of historic properties.