Overview of Sections 106 & 110 of the National Historic Preservation Act

Cultural Resource Specialists in the DSC Technical Branch are available to assist you in
understanding Section 106 compliance and how it is accomplished and documented.

 

By passage of the National Historic Preservation Act (NHPA) of 1966 (Public Law 102-575), Congress established a comprehensive program to preserve the historical and cultural foundations of the nation as a living part of community life. Section 110 of the NHPA delineates broad historic preservation responsibilities for federal agencies, such as the National Park Service, to ensure that historic preservation is fully integrated into all of their ongoing programs. Important benchmarks for federal agency preservation programs include:

• historic properties under the jurisdiction or control of the agency are to be managed and maintained in a way that considers the preservation of their historic, archeological, architectural, and cultural values;
• historic properties not under agency jurisdiction or control but potentially affected by agency actions are to be fully considered in agency planning; and
• agency preservation-related activities are to be carried out in consultation with other federal, state, and local agencies, Indian tribes, and the private sector.

Section 106 of the NHPA requires federal agencies to take into account the effects of their projects on historic properties either listed in or eligible to be listed in the National Register of Historic Places. The National Register includes districts, sites, buildings, structures, and objects important for their significance in American history, architecture, archeology, engineering, and culture. Historic properties listed in the National Register can be significant to a local community, a state, an Indian tribe, or the nation as a whole.

The historic preservation review process required by Section 106 is outlined in regulations (36 CFR (Code of Federal Regulations) Part 800, Protecting Historic Properties) issued by Advisory Council on Historic Preservation (ACHP), an independent federal agency established by the NHPA in 1966 to promote the preservation, enhancement, and productive use of our nation's historic resources. The goal of the Section 106 review process is to seek ways to avoid, minimize, or mitigate any adverse effects to historic properties.

Federal agencies are responsible for initiating Section 106 review, most of which takes place between the agency and state and tribal officials. Appointed by the governor, the state historic preservation officer (SHPO) administers the national historic preservation program at the state level, coordinates the state’s historic preservation program, and consults with federal agencies during Section 106 review. Federal agencies also consult with officials of federally recognized Indian tribes when tribal lands or historic properties of significance to such tribes are involved, as well as representatives of state and local governments, agencies, and organizations and the general public. Participation of the ACHP in Section 106 reviews is determined by one or more of the following criteria:

Would the proposed project:

1. have substantial impacts on important historic properties;
2. present important questions of policy or interpretation;
3. have the potential for presenting procedural problems (e.g. cases with substantial public controversy related to historic preservation issues or that result in disputes among consulting parties that the ACHP's involvement could help resolve); or
4. presents issues of concern to Indian tribes.

Section 106 review encourages but does not mandate preservation of National Register listed or eligible historic properties. The purpose of Section 106 review is not to stop projects, but rather to ensure that federal agencies fully consider historic preservation values and the views of other agencies, tribes, organizations, and the public during project planning and decision-making. Sometimes there is no feasible and prudent way for a needed project to proceed without adversely effecting historic properties, and there may be overriding natural resource concerns or economic and social benefits that that make it necessary for such a project to proceed as planned. Section 106 review does, however, ensure that preservation values are factored into federal agency planning and decision-making, that federal agencies assume responsibility for the consequences of their actions on historic properties and are publicly accountable for their decisions.

 

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