Section 106 Review: The Ultimate Guide to Protecting America's Historic Places

LEGAL DISCLAIMER: This article provides general, informational content for educational purposes only. It is not a substitute for professional legal advice from a qualified attorney. Always consult with a lawyer for guidance on your specific legal situation.

Imagine a new federal highway is planned to be built a few miles from your town. The construction company is ready, the funding is approved, and the bulldozers are warming up. But then, work stops. Someone points out that the planned route goes directly through the ruins of an 18th-century settlement and crosses a riverbank considered sacred by a local Native American tribe. What happens now? This exact scenario is why the Section 106 review process exists. Think of it as America's mandatory “pause button” for progress. Before any federal agency can fund, license, or approve a project—from a new cell tower to a massive dam—it must stop and consider what that project might do to our nation's historical, archaeological, and cultural heritage. It's a legally required conversation, not a veto. Its goal is to ensure that we don't accidentally erase our past while building our future. For you, the average citizen, it is the single most powerful tool you have to make your voice heard when a piece of history you care about is at risk.

• Key Takeaways At-a-Glance:
• A section 106 review is a required federal process under the national_historic_preservation_act_of_1966 that compels federal agencies to assess the effects of their projects on historic properties.
• The direct impact of a section 106 review is to give the public, local communities, and tribes a seat at the table to discuss ways to avoid, minimize, or mitigate harm to significant cultural sites.
• If you are concerned about a project, a section 106 review provides a formal opportunity to become a consulting_party, share your knowledge, and help shape the final outcome.

To understand why the Section 106 review is so critical, you have to picture America in the 1950s and 60s. It was an era of unprecedented growth and “urban renewal.” The Interstate Highway System, a monumental feat of engineering, was carving its way across the country. While this connected the nation, it often did so with a bulldozer's indifference, slicing through historic neighborhoods, paving over archaeological sites, and demolishing beloved local landmarks. Across the country, citizens watched in horror as their heritage was turned into rubble. The magnificent Pennsylvania Station in New York City was demolished in 1963, a loss that sent shockwaves through the nation and galvanized a movement. People began to realize that without a formal, legal process, the country's physical history was completely unprotected from the march of federal projects. This public outcry led directly to the passage of the national_historic_preservation_act_of_1966 (NHPA). It was a landmark piece of legislation that, for the first time, established a national policy for historic preservation. And at its heart was a simple but revolutionary idea encoded in Section 106: the U.S. government must be a responsible steward of the nation's history. It could no longer act with impunity. Before proceeding, it had to stop, look, and listen.

The entire Section 106 review process flows from a single sentence in the NHPA. The law, now codified in federal statutes, states that federal agencies must:

“…take into account the effect of the undertaking on any historic property…” - 54_usc_306108

Let's break down that dense legal phrase into plain English:

• “The undertaking”: This is an extremely broad term. It means almost any project that a federal agency is involved in. This includes projects they directly build (like a new VA hospital), projects they fund (like giving a grant for a bridge replacement), or projects they simply have to approve or license (like the federal_communications_commission approving a new cell phone tower).
• “The effect”: This refers to how the project might change the character of a historic property. It can be direct (knocking a building down) or indirect (building a loud, modern factory next to a quiet, historic battlefield).
• “Any historic property”: This means any district, site, building, structure, or object included in, or eligible for inclusion in, the national_register_of_historic_places. This is a critical point: a property doesn't have to be officially listed to be protected; it just has to be *eligible*.

The detailed rules for how agencies must “take into account” these effects are laid out in a federal regulation known as 36_cfr_part_800, “Protection of Historic Properties.” This regulation is the official playbook for the Section 106 process.

While the Section 106 review is a federal law, its implementation is a collaborative effort involving federal, state, tribal, and local parties. Understanding who does what is key to knowing where you can have the most impact.

The Section 106 review isn't a single event but a structured, four-step process designed to ensure that decisions are made logically and with public input.

First, the federal agency must determine if the process applies at all. This involves answering two questions:

1.  **Is it a federal "undertaking"?** As we saw, this is defined very broadly. If federal money, a federal license, or federal land is involved, the answer is almost always "yes."
2.  **Does the undertaking have the *potential* to affect historic properties?** If the project involves any ground disturbance, construction, or changes to the landscape, the answer is again, almost always "yes."

Once the process is initiated, the agency must define the Area of Potential Effects (APE). The APE is the geographic boundary within which the project could directly or indirectly cause changes to historic properties. For a small building demolition, the APE might just be the property lot itself. For a new wind farm, the APE could be vast, encompassing areas where the giant turbines are visible and change the historic landscape. The agency must also begin identifying potential consulting parties, including the relevant state_historic_preservation_officer (SHPO) and/or tribal_historic_preservation_officer (THPO).

This is the detective work phase. The agency, often by hiring cultural resource management professionals, must make a “reasonable and good faith effort” to find any and all historic properties within the APE. This involves:

• Background Research: Reviewing state historic property inventories, local archives, old maps, and academic papers.
• Field Surveys: Archaeologists and historians physically walk the APE, looking for evidence of old structures, archaeological sites (like pottery shards or stone tool flakes), or culturally significant landscapes.
• Consultation: Reaching out to the SHPO/THPO, local historical societies, and the public to ask for information. This is where your local knowledge is invaluable.
• Evaluation: For each property found, the agency evaluates it against the official criteria for the national_register_of_historic_places. If it meets the criteria, it is treated as a historic property for the purposes of Section 106, even if it's not officially on the list yet.

The agency then makes a formal finding: either “no historic properties affected” (which, if the SHPO/THPO agrees, can end the process) or “historic properties are present.”

If historic properties are present, the agency must determine if the project will have an adverse effect on them. An adverse effect occurs when an undertaking may alter the characteristics of a historic property that qualify it for the National Register in a way that diminishes its integrity. The official regulations provide a clear list of what constitutes an adverse effect:

• Physical destruction or damage to all or part of the property.
• Alteration of the property, including restoration or rehabilitation that isn't sensitive to its historic features.
• Removal of the property from its historic location.
• Change of the character of the property's use or physical features within its setting.
• Introduction of visual, atmospheric, or audible elements that are out of character with the property or alter its setting. (e.g., building a cell tower that looms over a historic battlefield).
• Neglect of a property that causes its deterioration.

The agency presents its findings to the SHPO/THPO and other consulting parties. If they all agree there is “no adverse effect,” the process can conclude. If they find there is an adverse effect, the process moves to its final, most critical stage.

This step is the heart of the Section 106 review: consultation. The federal agency must consult with the SHPO/THPO and other consulting parties to find ways to avoid, minimize, or mitigate the adverse effects.

• Avoidance: Can the project be redesigned or relocated to completely avoid harming the historic property? This is always the preferred option.
• Minimization: If avoidance isn't possible, can changes be made to reduce the harm? (e.g., using different building materials, adding a visual buffer, or reducing the project's footprint).
• Mitigation: If the harm cannot be avoided or minimized, what can be done to compensate for the loss? This can include things like detailed archaeological data recovery before a site is destroyed, creating historical exhibits, funding oral history projects, or rehabilitating a similar historic building nearby.

This negotiation concludes with a legally binding document, most often a memorandum_of_agreement (MOA). The MOA details the agreed-upon mitigation measures and is signed by the agency, the SHPO/THPO, and sometimes other key consulting parties. Once the MOA is in place, the agency has fulfilled its Section 106 obligations and the project can proceed.

• The Federal Agency: The decision-maker. They run the process, but they must follow the rules in 36_cfr_part_800. Their goal is usually to get the project approved while fulfilling their legal duties.
• The SHPO/THPO: The expert advisors. They hold significant persuasive power. An agency that ignores their SHPO's or THPO's advice does so at its own peril, as it can open them up to legal challenges.
• The Advisory Council on Historic Preservation (ACHP): The federal referee. The advisory_council_on_historic_preservation is an independent federal agency that oversees the Section 106 process. They can enter the consultation if there are disagreements or if the undertaking is particularly complex or controversial.
• Consulting Parties: The interested stakeholders. This can include local governments, landowners, historical societies, and individuals with a demonstrated legal or economic interest in the project or the affected properties. They have a right to participate in the consultation process.
• The Public: You! Any member of the public can submit comments and information. While you don't have the same formal role as a consulting party, strong public opposition or valuable public information can significantly influence the outcome.

If you learn about a federal project in your community that you believe could harm a historic place, you are not powerless. Here is a clear, step-by-step guide to engaging in the Section 106 review process.

You can't participate if you don't know a review is happening. Stay informed by:

1. Monitoring public notices: Check the websites of federal agencies that do work in your area (e.g., Dept. of Transportation, Army Corps of Engineers, FCC).
2. Following your SHPO's website: Many SHPOs post information about active Section 106 reviews.
3. Reading your local newspaper: Public notices for projects are often published here.
4. Attending local government meetings: Town or county planning boards are often aware of upcoming major projects.

If you have a special connection to the property or a strong interest in the project, you can formally request to be a consulting party. This gives you more rights than a member of the general public, including the right to review documents and participate in negotiations. To do this, write a letter to the lead federal agency (and copy your SHPO) explaining:

1. Who you are: Your name or the name of your organization.
2. Your interest: Clearly state your demonstrated interest in the undertaking (e.g., “I am the owner of an adjacent historic property,” or “Our historical society has been working to preserve this site for 20 years.”).
3. Your request: Formally ask to be recognized as a consulting party in the Section 106 review for Project X.

The most effective comments are based on facts. Don't just say, “I don't like this project.” Instead, provide specific information that the agency might not have.

1. Document the property: Take clear photographs of the historic site from multiple angles.
2. Research its history: Go to the local library or historical society. Find old photos, maps, or stories that prove its significance.
3. Identify the potential harm: Clearly explain *how* you think the project will cause an adverse effect, using the official criteria (visual impact, destruction, etc.).

Submit your information and opinions through formal channels. The best way is by writing a comment_letter.

1. Be professional and specific. State your points clearly and reference the specific steps of the Section 106 process.
2. Submit it on time. There are official comment periods. Late submissions may be ignored.
3. Send your letter to the federal agency and copy the SHPO/THPO and any other known consulting parties.
4. Attend public meetings. If the agency holds a public meeting, attend and state your concerns clearly and concisely.

The end result is often a memorandum_of_agreement (MOA). If you are a consulting party, you may be invited to sign it. Even if not, you should get a copy and review it. Does it adequately address the harms? Are the mitigation measures meaningful? If you believe the agency failed to follow the Section 106 process correctly, your final recourse may be to contact the advisory_council_on_historic_preservation or, in rare cases, explore legal action under the administrative_procedure_act.

• Comment Letter: This is your primary tool. It is a formal letter sent to the federal agency during a public comment period, outlining your concerns, providing new information, and suggesting alternatives. A strong comment letter is factual, professional, and ties its arguments directly to the NHPA and its regulations.
• Request for Consulting Party Status: A letter sent at the beginning of the process to the federal agency formally requesting a seat at the table. It must clearly articulate your demonstrated interest in the project or the affected properties.
• Memorandum of Agreement (MOA): The final, legally binding document that stipulates how the adverse effects of a project will be resolved. It is negotiated between the agency, the SHPO/THPO, and sometimes other consulting parties. It represents the conclusion of the Section 106 process.

The Section 106 review process has been shaped not by a single Supreme Court ruling, but by decades of on-the-ground conflicts and court challenges that have clarified and strengthened its requirements.

In the 1960s, federal planners proposed an elevated, six-lane expressway along the riverfront in New Orleans, cutting off the historic French Quarter (the Vieux Carré) from the Mississippi River. This was a classic pre-NHPA proposal. The fierce public battle to stop it was a major catalyst for the passage of the NHPA and a foundational test of the new Section 106 process. The ultimate cancellation of the expressway in 1969 proved that the law could be used to protect the integrity of entire historic districts, not just single buildings. It established that an “adverse effect” could include isolating a district from its historic setting.

Perhaps the most famous modern Section 106 conflict, the fight over the Dakota Access Pipeline (DAPL) highlighted the critical importance of tribal consultation. The Standing Rock Sioux Tribe argued that the army_corps_of_engineers had failed in its duty to conduct a meaningful, government-to-government consultation regarding the pipeline's route, which threatened sacred sites and their water supply. While the pipeline was ultimately built, the controversy led to a nationwide re-examination of tribal consultation in infrastructure projects and strengthened the resolve of many agencies to take their THPO consultation duties more seriously from the very beginning of a project.

This influential case from the 9th Circuit Court of Appeals dealt with a land exchange in which the U.S. Forest Service was transferring historic forest land to a private company. The Muckleshoot Tribe argued that the Forest Service had failed to properly survey the area for traditional cultural properties before the exchange. The court agreed, ruling that an agency cannot simply rely on existing, incomplete data. It affirmed that agencies have an affirmative duty to make a “reasonable and good faith effort” to identify all historic properties, including those important to Native American tribes. This ruling impacts how federal agencies must conduct their identification efforts in Step 2 of the process across the western United States.

The Section 106 review is a constantly evolving field, with several major debates shaping its application today.

• Large-Scale Infrastructure: The push for renewable energy (wind and solar farms) and new pipelines creates massive projects that can have widespread visual and physical impacts on historic landscapes. Balancing climate goals with historic preservation is a major challenge.
• “Meaningful Consultation”: Many tribes and communities argue that agencies often treat consultation as a “check-the-box” exercise rather than a genuine dialogue. Debates continue over what defines truly meaningful consultation and how to ensure local and tribal knowledge is genuinely incorporated into decisions.
• Streamlining vs. Thoroughness: There is constant political pressure to “streamline” permitting processes to speed up construction. This often involves proposals to shorten timelines or limit the scope of Section 106 reviews, which preservation advocates argue could weaken protections for historic properties.

The future of the Section 106 review will be shaped by new tools and new challenges.

• Technology: Remote sensing technologies like LiDAR can help identify archaeological sites without disturbing the ground. 3D digital modeling can create powerful simulations of a project's visual impact on a historic setting, making the “adverse effect” assessment more concrete.
• Climate Change: As sea-level rise and extreme weather threaten coastal historic sites (like Jamestown or St. Augustine), Section 106 consultations will increasingly have to address mitigation strategies for properties threatened by climate change, forcing difficult decisions about what can be saved.
• A Broader Definition of “Historic”: Society's understanding of what constitutes a “historic property” is expanding. There is a growing movement to recognize and protect sites associated with underrepresented communities, social justice movements, and recent history, which will challenge practitioners to apply the Section 106 process to a wider range of cultural resources.

• Adverse Effect: Harm to a historic property caused by a federal project, such as destruction, alteration, or changing its setting.
• Area of Potential Effects (APE): The geographic area within which a project may directly or indirectly affect historic properties.
• Consulting Party: An individual or group with a demonstrated interest in a project that has been granted a formal role in the Section 106 consultation process.
• Cultural Resources: A broad term for historic properties and other physical evidence of past human activity.
• Federal Undertaking: Any project, activity, or program funded, licensed, or approved by a federal agency.
• Historic Property: Any prehistoric or historic district, site, building, structure, or object included in or eligible for the national_register_of_historic_places.
• Memorandum of Agreement (MOA): A legally binding document that records the terms of how an agency will resolve a project's adverse effects on historic properties.
• Mitigation: Actions taken to lessen or compensate for the unavoidable adverse effects of a project.
• National Historic Preservation Act (NHPA): The 1966 law that established the U.S. national historic preservation policy and created the Section 106 review process.
• National Register of Historic Places: The official list of the Nation's historic places worthy of preservation.
• Programmatic Agreement (PA): A type of Section 106 agreement used to govern the implementation of a large or complex program that may have repetitive impacts.
• State Historic Preservation Officer (SHPO): The state-appointed official who directs the state's historic preservation program.
• Tribal Historic Preservation Officer (THPO): The official designated by a federally recognized Indian tribe to direct the tribe's historic preservation program.

• national_historic_preservation_act_of_1966
• national_environmental_policy_act_(nepa)
• endangered_species_act
• administrative_procedure_act
• tribal_sovereignty
• zoning
• eminent_domain