The Section 106 Review Process: An Ultimate Guide to Protecting Historic Properties

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 your town's beloved, century-old post office is slated for a massive, modern expansion. The project involves a federal grant, which means federal money is involved. You worry: Will the beautiful historic facade be destroyed? Will the project unearth artifacts from the town's original settlement? This is where the Section 106 review process steps in. Think of it as a mandatory “pause button” that a federal agency must press before it can proceed with a project. It's not a law that can automatically stop the project, but it is a powerful tool that forces the government to stop, look, and listen. It compels them to consider the project's effects on historic and culturally significant places, and to consult with the community, experts, and Native American tribes to find ways to avoid, minimize, or mitigate any harm. It’s the law that gives your town’s history a seat at the table.

• Key Takeaways At-a-Glance:
• A Required Consultation: The section 106 review process is a federal law that requires federal agencies to consider the effects of their projects, called “undertakings,” on historic properties. national_historic_preservation_act_of_1966.
• Your Voice Matters: The section 106 review process is designed to be collaborative, providing opportunities for state and tribal officials, local governments, and the public to have a meaningful voice in federal project planning. advisory_council_on_historic_preservation.
• It's About Resolution, Not Veto: A key goal of the section 106 review process is to find a way to resolve “adverse effects” on historic sites through negotiation and agreement, not to simply block a project. memorandum_of_agreement.

In the mid-20th century, America was a nation on the move. The creation of the Interstate Highway System and massive urban renewal projects promised a brighter, more modern future. But this progress came at a steep price. Historic neighborhoods were bulldozed, grand old buildings were razed for parking lots, and significant archaeological sites were paved over, often with little thought or public input. A sense of profound loss began to spread across the country. Citizens watched as the physical touchstones of their shared history vanished. This growing public outcry led to a preservation movement that culminated in the passage of the National Historic Preservation Act (NHPA). This landmark legislation was a paradigm shift. For the first time, the federal government officially declared that preserving the nation's heritage was in the public interest. At the heart of the NHPA is Section 106. This provision is the engine of the act. It established a formal review process to ensure that federal agencies don't blindly destroy the past in their rush to build the future. It created a new framework for decision-making, one that required federal agencies to be accountable for their actions and to consult with others who had a stake in preserving our history. This was not about freezing communities in time; it was about ensuring that development was thoughtful, considered, and respectful of the places that tell the story of America.

The Section 106 review process is defined by a surprisingly small set of core legal texts. Understanding them is key to understanding your rights and the obligations of federal agencies.

• The National Historic Preservation Act of 1966 (NHPA): This is the parent law. Section 106 of the act contains the foundational requirement. It states that a federal agency must “take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register of Historic Places.” It also requires the agency to afford the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment.
• 36 CFR Part 800 - "Protection of Historic Properties": If the NHPA is the “what,” these are the “how” regulations. Published in the code_of_federal_regulations, this document is the official rulebook for conducting the Section 106 process. It lays out the four-step process, defines key terms like “undertaking” and “adverse effect,” and details the specific roles and responsibilities of every participant. For anyone deeply involved in a Section 106 review, this document is the essential guide.

The Section 106 process is a collaborative effort, and its success hinges on the interaction between several key entities at the federal, state, and tribal levels. While the core process is federal, its implementation is a partnership.

The Section 106 review process is not a single action but a structured, four-step journey. Its purpose is to ensure that decisions are made with full awareness of their potential consequences for our shared heritage.

The regulations at 36_cfr_part_800 outline a clear, sequential path. A federal agency must complete each step before moving on to the next.

This first step is about setting the stage and determining if the Section 106 process even applies.

1. Is it a Federal “Undertaking”? The process is only triggered by an “undertaking.” This is a very broad term that includes any project, activity, or program funded in whole or in part, permitted, licensed, or approved by a federal agency.
   • Example: A private company wants to build a pipeline that needs a permit from the army_corps_of_engineers. Getting that federal permit is the “undertaking” that triggers Section 106.
2. Identify Consulting Parties: The federal agency must identify and invite other parties to consult. This includes the relevant SHPO and/or THPO, local governments, and any individuals or organizations with a demonstrated interest in the project. This is the first opportunity for the public to formally get involved.
3. Plan for Public Involvement: The agency must create a plan to seek and consider the views of the public. This can range from public meetings to comment periods.

Once the process is initiated, the agency's primary job is to figure out what, if any, historic properties might be affected.

1. Define the Area of Potential Effects (APE): This is the geographic area within which the undertaking may directly or indirectly cause alterations in the character or use of historic properties. The APE can be larger than the project's immediate footprint.
   • Example: For a new highway, the APE might include not only the road itself but also adjacent areas where noise and visual changes could impact a historic district.
2. Identify Properties: The agency must make a reasonable and good faith effort to identify historic properties within the APE. This involves:
   • Reviewing existing information (maps, records, national_register_of_historic_places listings).
   • Consulting with the SHPO/THPO and local communities.
   • Potentially conducting field surveys, such as archaeological digs or architectural reviews.
3. Evaluate for National Register Eligibility: A property doesn't need to be officially listed on the National Register to be protected. The agency, in consultation with the SHPO/THPO, must also evaluate if any identified properties are eligible for listing.

If historic properties are identified in the APE, the next step is to determine how the project will affect them. An adverse_effect occurs when an undertaking may alter, directly or indirectly, any of the characteristics of a historic property that qualify it for inclusion in the national_register_of_historic_places.

1. Applying the Criteria of Adverse Effect: An effect is considered adverse if it involves:
   • Physical destruction or damage to all or part of the property.
   • Alteration of the property that is not consistent with its historic character.
   • Removal of the property from its historic location.
   • Change of the character of the property's setting.
   • Introduction of visual, atmospheric, or audible elements that diminish the integrity of the property's significant historic features.
2. Possible Findings:
   • No Historic Properties Affected: If no historic properties are found in the APE, the agency documents this finding and the process ends.
   • No Adverse Effect: Historic properties are present, but the project will not harm them. For example, replacing a modern HVAC system in a historic building without altering its historic features. The agency seeks SHPO/THPO concurrence.
   • Adverse Effect: The project will harm one or more historic properties. The process must then proceed to the final step.

This final step is the heart of the consultation process. The goal is to negotiate a solution to the project's harmful impacts. The federal agency continues to consult with the SHPO/THPO and other consulting parties to find ways to avoid, minimize, or mitigate the adverse effects.

1. Avoiding the Effect: Can the project be redesigned to completely avoid the harm? (e.g., moving a proposed road).
2. Minimizing the Effect: If avoidance isn't possible, can the harm be lessened? (e.g., using special construction techniques to reduce vibration near a historic foundation).
3. Mitigating the Effect: If the harm cannot be avoided or minimized, what can be done to compensate for the loss?
   • Example: If an old, but not highly significant, building must be demolished, mitigation might involve creating detailed architectural drawings and photographs for historical archives, or funding a historic walking tour of the neighborhood.
4. The Memorandum of Agreement (MOA): The consultation typically concludes with a legally binding document called a memorandum_of_agreement. The MOA details the specific mitigation measures the federal agency agrees to undertake. It is signed by the agency, the SHPO/THPO, and often other consulting parties. Once an MOA is executed, the Section 106 process is complete.
5. Failure to Agree: If the parties cannot agree on a resolution, the matter is referred to the ACHP, which will issue a formal comment. The federal agency must consider the ACHP's comment, but it is not legally bound by it. The ultimate decision still rests with the federal agency.

The law is designed for public involvement. As a concerned citizen, student, or business owner, you have a right to participate. Here’s how you can make your voice heard.

1. Find out about projects. Federal agencies often post public notices in local newspapers, on their websites, or through local government channels. Keep an eye out for projects in your area that involve federal funding or permits, such as transportation projects, cell tower construction, or work on federal lands.
2. Contact your SHPO. Your state_historic_preservation_office is the best source of information about Section 106 reviews happening in your state. They often maintain a list of active projects and can tell you who to contact at the federal agency.

1. Who can be a consulting party? Any individual or organization with a “demonstrated interest” in the undertaking can request to be a formal consulting party. This could be because of a historical or cultural affiliation with the area, a concern for the preservation of a specific site, or expertise in a relevant field.
2. How to request. Write a formal letter or email to the lead federal agency for the project. Clearly state why you have a demonstrated interest. For example: “I am the president of the Anytown Historical Society,” or “My family has lived adjacent to this historic farm for five generations.”
3. Benefits of being a consulting party. This status gives you more rights than the general public. You must be invited to meetings, receive project documentation, and have your views formally considered and responded to by the agency.

1. Be specific. Vague opposition is less effective than specific, well-reasoned comments. Instead of saying “I don't like this project,” explain why. For example: “The proposed new building is three stories taller than any other structure in the historic district and its modern glass design is incompatible with the surrounding 19th-century brick architecture.”
2. Provide information. Do you know about an old family cemetery or an undocumented archaeological site in the project area? Share that information with the agency and the SHPO. Local knowledge is invaluable.
3. Focus on the criteria. Frame your comments around the Section 106 criteria. Explain how you believe the project will have an “adverse effect” by altering the setting, integrity, or character of a historic property.

1. Suggest alternatives. If you are a consulting party, you have a seat at the table during the resolution step. This is your chance to propose creative solutions. Can the project be redesigned? Can the historic building be moved instead of demolished?
2. Help shape the mitigation. If an adverse effect is unavoidable, provide input on what would be appropriate mitigation. Would a new historical marker be helpful? Could the developer contribute to a fund for preserving other local landmarks?

Understanding the paperwork can help you track the process and identify key decision points.

• Finding of No Adverse Effect (FNAE): This is a formal document issued by the federal agency when it determines, in consultation with the SHPO/THPO, that the project will not harm any historic properties. The public usually has an opportunity to comment on this finding before it is finalized.
• Memorandum of Agreement (MOA): This is the legally binding contract that concludes a Section 106 review where adverse effects were found. It outlines all the agreed-upon mitigation measures. It is a public document, and you should ask to see it to ensure the agency is held accountable for its promises.
• Programmatic Agreement (PA): For large-scale or repetitive federal programs, an agency may negotiate a Programmatic Agreement. This document governs how Section 106 will be handled for an entire program or a class of undertakings, streamlining the process for future projects.

Theory is one thing, but seeing how the Section 106 process plays out in the real world provides the clearest understanding of its impact.

The project to improve a major section of Interstate 95 through Philadelphia was a massive federal undertaking. The Area of Potential Effects was huge and included numerous historic districts and potential archaeological sites, particularly in the Fishtown neighborhood, an area rich in industrial and maritime history.

• The Process: The Federal Highway Administration and the Pennsylvania DOT (acting on their behalf) engaged in years of Section 106 consultation with the Pennsylvania SHPO, the City of Philadelphia, local community groups, and the ACHP.
• The Findings: The project was found to have numerous adverse effects, including the demolition of some historic industrial buildings and significant archaeological disturbances.
• The Resolution: The parties executed a comprehensive Programmatic Agreement. Mitigation measures included extensive archaeological data recovery before construction, funding for new historical exhibits at local museums, a program to document historic buildings before their demolition, and the creation of new public parks with historical interpretation. The project moved forward, but the history of the area was not erased; it was documented and shared with the public in new ways.

This case is a powerful and controversial example of the Section 106 process, particularly concerning tribal consultation. The pipeline, permitted by the army_corps_of_engineers, was planned to cross the Missouri River near the Standing Rock Sioux Reservation.

• The Process: The Standing Rock Sioux Tribe contended that the Army Corps failed to conduct adequate and meaningful government-to-government consultation. The Tribe argued that the pipeline's route would destroy sacred burial sites and other traditional_cultural_properties that were not yet formally documented.
• The Conflict: This became a major point of contention, highlighting the different ways that federal agencies and Native American tribes view “evidence” of historic and cultural significance. For the Tribe, oral history and traditional knowledge are paramount; the Section 106 process often prioritizes written records and archaeological surveys.
• The Impact: The controversy led to massive protests and extensive litigation. It brought national attention to the importance of early and meaningful tribal consultation in the Section 106 process and sparked a nationwide debate on how federal agencies can better fulfill their responsibilities to sovereign tribal nations.

The Section 106 process is over 50 years old and is constantly being tested and debated.

• Streamlining vs. Thoroughness: There is a constant tension between the desire to make government more efficient and the need for a thorough review process. Some argue that Section 106 causes unnecessary delays and costs, while preservation advocates argue that any attempt to “streamline” the process risks weakening its protections.
• Climate Change and Historic Properties: How does Section 106 apply to historic coastal communities threatened by sea-level rise or historic forests at risk from wildfire? Agencies and consulting parties are now grappling with how to use the process to plan for climate adaptation and resilience, which may involve difficult choices like moving historic structures or letting them succumb to nature.
• Large-Scale Infrastructure: Massive new energy and transportation projects, often on a scale not seen in decades, are putting immense pressure on the Section 106 process. Handling the review for a project that crosses multiple states and affects dozens of historic and cultural sites is a monumental challenge that tests the limits of the system.

The future of historic preservation will be shaped by new tools and evolving societal values.

• Geospatial Technology (GIS): Geographic Information Systems are revolutionizing how we identify and manage cultural resources. Predictive modeling can help agencies identify areas with a high probability of containing archaeological sites before a shovel ever hits the ground, making consultation more proactive.
• Digital Documentation: Technologies like 3D laser scanning and drone photography allow for the creation of incredibly detailed digital models of historic buildings and landscapes. This is becoming a powerful mitigation tool—if a structure must be lost, a “digital twin” can preserve it for future study and appreciation.
• A Broader Definition of “Historic”: Society's understanding of what is historically significant is expanding. The Section 106 process is increasingly being used to consider places associated with underrepresented communities, civil rights history, and recent events. This requires a more inclusive and community-driven approach to identifying the places that matter.

• Adverse Effect: An action that diminishes the qualities of a historic property that make it eligible for the National Register.
• Advisory Council on Historic Preservation (ACHP): The independent federal agency that oversees and guides the Section 106 process.
• Area of Potential Effects (APE): The geographic area where a project may impact historic properties.
• Consulting Parties: The participants in the Section 106 process, including the SHPO/THPO, local governments, and interested individuals.
• Cultural Resources: A broad term for historic properties, including archaeological sites, historic buildings, and important landscapes.
• Historic Property: Any site, building, district, structure, or object included in, or eligible for, the National Register of Historic Places.
• Memorandum of Agreement (MOA): A binding legal document that details how a federal agency will resolve 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 federal framework for historic preservation, including Section 106.
• National Register of Historic Places: The official list of the nation's historic places worthy of preservation.
• State Historic Preservation Office (SHPO): The state agency that consults with federal agencies during the Section 106 process.
• Traditional Cultural Property (TCP): A place associated with the cultural practices or beliefs of a living community that are rooted in that community's history.
• Tribal Historic Preservation Office (THPO): The tribal equivalent of the SHPO for a federally-recognized Native American tribe.
• Undertaking: A project, activity, or program requiring a federal permit, license, or funding that triggers the Section 106 review process.

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