Consulting Party: Your Ultimate Guide to Section 106 of the NHPA

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 city council announces a plan to build a massive, modern-style bus terminal right in the middle of your town's beloved, historically significant town square. As a concerned citizen, you can certainly attend public meetings and write letters to the editor. But what if you had a guaranteed seat at the negotiation table? What if the federal agency funding the project was legally required to listen to your concerns, consider your suggestions, and work with you to find a solution? That guaranteed seat at the table is the essence of being a consulting party. This is a special legal status granted under a federal law called the `national_historic_preservation_act_of_1966`, or NHPA. It's not just about voicing an opinion; it's about actively participating in the decision-making process for federal projects that could impact places that matter to our history and culture. It transforms you from a passive member of the public into an active, recognized participant in a formal government review process.

• Key Takeaways At-a-Glance:
  • A consulting party is an individual, organization, or government body with a formal role in the `section_106_review_process` to help a federal agency identify and assess a project's effects on historic properties.
  • For an ordinary person or a community group, becoming a consulting party is the most powerful tool available to ensure your voice is heard when a federal project threatens a local historic site, from an old courthouse to an ancestral burial ground.
  • To become a consulting party, you must typically submit a written request to the lead federal agency, explaining your “demonstrated interest” in the project and the historic properties it may affect.

The idea of a “consulting party” didn't appear out of thin air. It was born from the ashes of America's past. In the 1950s and 60s, a wave of post-war development and the construction of the Interstate Highway System swept the nation. While this symbolized progress, it came at a tremendous cost. Historic neighborhoods were bulldozed, magnificent 19th-century buildings were razed for parking lots, and archaeological sites were paved over without a second thought. This destruction sparked a national outcry. Citizens realized that the country's physical connection to its own history was being severed. This growing preservation movement culminated in the passage of the landmark National Historic Preservation Act of 1966 (NHPA). The NHPA was a revolutionary piece of legislation. It declared for the first time that preserving the nation's heritage was in the public interest. Crucially, it created the `section_106_review_process`, a mandatory procedure that federal agencies must follow before they can approve, fund, or license any project—what the law calls an “undertaking.” Section 106 requires agencies to do two things:

1. Take into account the effects of their actions on `[[historic_properties]]`.
2. Afford the `[[advisory_council_on_historic_preservation]]` (ACHP), a federal oversight agency, a reasonable opportunity to comment.

Early on, it became clear that for this process to be meaningful, it couldn't just be a conversation between government agencies. The people who lived in the communities, who cared for the historic places, and whose ancestors were connected to the land needed to be involved. This is where the concept of the consulting party was formally developed in the law's implementing regulations. It was a deliberate choice to open up the government's internal decision-making process and give a formal role to those with a direct stake in the outcome.

The specific rules that define and govern consulting parties are found in a section of the `code_of_federal_regulations` known as 36 CFR Part 800, titled “Protection of Historic Properties.” This is the official rulebook for the Section 106 process. The regulation, at `36_cfr_800.2(c)`, defines consulting parties as follows. Let's break down the dense legal text with plain-English explanations.

• Statutory Language: `© Consulting parties. The following parties have consultative roles in the Section 106 process.`
  • Plain English: The law creates a special class of participants called “consulting parties” who have a right to be involved.
• Statutory Language: `(1) State historic preservation officer. (2) Tribal historic preservation officer. (3) Indian tribes and Native Hawaiian organizations.`
  • Plain English: Certain groups are automatically considered consulting parties. These include the State Historic Preservation Officer (SHPO) for projects on state or private land, and the Tribal Historic Preservation Officer (THPO) or other tribal representatives for projects on tribal lands or affecting sites of religious and cultural significance to a tribe. This recognizes the unique expertise of SHPOs and the sovereign status and special knowledge of Native American tribes.
• Statutory Language: `(4) Representatives of local governments.`
  • Plain English: The mayor's office, a county commission, or a local planning board can be a consulting party.
• Statutory Language: `(5) Applicants for Federal assistance, permits, licenses, and other approvals.`
  • Plain English: The company or person who wants the federal permit or funding for their project is also a consulting party. This ensures the project proponent is directly involved in the negotiations.
• Statutory Language: `(6) Other individuals and organizations with a demonstrated interest in the undertaking… An individual or organization that wishes to participate as a consulting party must request that the agency official do so. The agency official must determine which other individuals and organizations will be consulting parties.`
  • Plain English: This is the most important category for the general public. Local historical societies, preservation groups, neighborhood associations, and even single individuals can become consulting parties. However, you must formally request this status in writing and show the federal agency you have a “demonstrated interest”—a legitimate connection to the project or the historic sites it might affect. The agency has the final say on whether to grant you this status.

While Section 106 is a federal law, its execution involves a partnership between federal, state, tribal, and local entities. Understanding these different roles is critical. The table below clarifies who does what.

Not everyone can be a consulting party. The status is reserved for those who have a genuine and demonstrable stake in the outcome. Let's break down the different categories and what it takes to qualify for each.

Certain entities have a seat at the table by law due to their official government roles and responsibilities. They don't need to ask for permission.

• The SHPO: The State Historic Preservation Officer is the governor-appointed official in charge of a state's historic preservation program. They and their staff have professional expertise in history, architecture, and archaeology.
• The THPO and Indian Tribes: For any project on tribal lands, the tribe's THPO (if they have one) is the primary contact. For projects off tribal lands, any tribe that attaches religious and cultural significance to a `historic_property` in the project area has consultation rights. This is a critical aspect of federal Indian law and recognizes tribal sovereignty.
• Example: If the `federal_communications_commission` (FCC) is licensing a new cell tower, they must automatically consult with the SHPO of the state where the tower will be built. If that tower is proposed near a mountain known to be a sacred site for a local tribe, the FCC must also consult directly with that tribe's government.

These parties are almost always included by the federal agency due to their direct involvement in the project.

• The Applicant: The person or company applying for the federal permit, license, or funding is a key participant. It's their project, and they are essential for discussing alternatives or modifications.
• Local Governments: The city or county where the project is located has a clear interest in its effects on the community's character, tax base, and local landmarks.
• Example: A developer wants to build a housing complex in a wetland, which requires a permit from the `army_corps_of_engineers`. The developer (the applicant) and the City Planning Department (the local government) would be invited to be consulting parties.

This is the category open to the public, but you must make your case. The key is “demonstrated interest.”

• What is a “Demonstrated Interest”? This isn't strictly defined, which gives agencies some discretion. However, it generally means you have a tangible connection to the project's effects. This could be:
  • A Legal or Economic Interest: You own property adjacent to the project. You own a business in a historic district that would be affected.
  • A Preservation-Related Interest: You are a member of a local historical society, a non-profit preservation group, or a neighborhood association focused on protecting the area's character.
  • A Personal or Cultural Interest: Your ancestors are buried in a cemetery that could be disturbed. You are part of a community that has a long-standing traditional connection to a place.
• Example: A new federal highway is proposed to bypass a small town. A group called “Friends of Old Main Street” could request consulting party status by writing to the `federal_highway_administration` and explaining that their organization's mission is to preserve the historic character of the town's downtown, which would be severely impacted by the bypass. An individual whose family has owned a historic farm in the highway's path for generations could also request status based on their deep personal and economic interest.

If you believe a federal project threatens a historic place you care about, taking action can feel daunting. This step-by-step guide breaks down the process into manageable actions.

First, you must confirm that the project is indeed a “federal undertaking,” which is what triggers the Section 106 process. An undertaking is any project, activity, or program that is funded, permitted, licensed, or approved by a federal agency.

• Red Flags: Look for signs of federal involvement. Is the project being done by the Army Corps of Engineers? Does it require a permit from the `environmental_protection_agency`? Is it using federal transportation funds? Is it on federal land like a National Forest?
• How to Find Out: Check the project website, look for public notices in the local newspaper, or call the planning department of your local government and ask if there is a federal agency involved.

Think carefully about why you care. As discussed above, what is your connection? Are you a property owner? A member of a historical society? Do you have a family connection to the site? Write down a few clear, concise sentences that explain your stake in the project. This will be the core of your request.

This is your formal entry into the process. Your request should be a formal letter or email sent to the “lead federal agency” in charge of the project.

• Find the Right Contact: The agency should have a public affairs officer or a specific project manager listed on public notices. If you can't find a specific person, send it to the head of the regional office. Always send a copy to your SHPO's office as well.
• What to Include in Your Letter:
  • Clearly state the project name and any identifying numbers.
  • Formally state: “I/We hereby request consulting party status in the Section 106 review for this undertaking.”
  • Explain your demonstrated interest clearly and professionally.
  • Provide your name, address, email, and phone number.
  • Be polite and professional. You are starting a long-term working relationship.

If your request is granted, congratulations! Now the real work begins. Being a consulting party is an active role. You will be invited to meetings, asked to review documents, and expected to provide comments.

• Do Your Homework: Read the documents the agency sends you. These might include archaeological surveys, historic structure reports, and maps of the `area_of_potential_effects`.
• Attend Meetings: Participate in meetings and site visits. This is your chance to ask questions directly to the agency and the applicant.
• Provide Substantive Comments: When you comment, be specific. Instead of saying “This project is bad,” say “We are concerned that the proposed new building at 50 feet tall will block the view of the historic courthouse, which is a key feature of the historic district. We suggest an alternative design that limits the height to 30 feet.”

The goal of consultation is to identify `historic_properties`, assess if the project will have an `adverse_effect` on them, and find ways to avoid, minimize, or mitigate that harm. An adverse effect is any action that diminishes the qualities that make a property historic.

• Common Resolutions: If adverse effects can't be avoided, consulting parties work to develop a solution. This is often formalized in a legal document like a `memorandum_of_agreement` (MOA).
• Examples of Mitigation:
  • If a historic bridge must be replaced, the MOA might require the creation of a permanent exhibit about the bridge's history at the local library.
  • If an archaeological site will be destroyed, the MOA might require extensive data recovery (a full excavation) to save the information before construction begins.
  • If a new building is going up in a historic district, the MOA might require its design to use compatible materials and scale.

Important Note: A consulting party does not have veto power. You cannot single-handedly stop a project. However, your participation ensures that the process is fair, transparent, and that your expert local knowledge is used to reach a better outcome.

Legal theory is one thing; real-world application is another. These hypothetical case studies show how the role of a consulting party plays out in different situations.

• The Backstory: A telecommunications company applies to the FCC for a license to build a 150-foot-tall cell tower on a hill overlooking a small town's designated historic district.
• The Consulting Parties: The FCC invites the SHPO and the town's government to consult. The “Save Our Skyline” historical society, a local non-profit, writes a letter to the FCC detailing their mission to protect the town's historic character and requests consulting party status, which is granted.
• The Process in Action: The consulting parties agree that while the tower is not *in* the historic district, its visibility will create an “adverse visual effect.” During consultation meetings, the “Save Our Skyline” group uses old photographs to show how the unobstructed view of the town's church steeples is a key part of its historic identity.
• The Outcome: Through negotiation, the company agrees to redesign the tower as a less-obtrusive “monopine” (disguised as a tree) and move it to a slightly different location that is less visible from Main Street. This resolution is recorded in a `memorandum_of_agreement` signed by the FCC, SHPO, the company, and the historical society. The project moves forward, but its harm to the historic district is significantly minimized thanks to the consulting parties.

• The Backstory: The `federal_highway_administration` (FHWA) proposes a project to widen a highway that passes through a National Forest.
• The Consulting Parties: The FHWA initiates government-to-government consultation with a federally recognized Native American tribe whose ancestral lands include the forest. The tribe's THPO informs the FHWA that a specific rock outcropping near the proposed route is a sacred site used for ceremonies.
• The Process in Action: The tribe's status as a sovereign nation gives its input immense weight. The THPO explains that the noise, dust, and visual intrusion from construction and a wider highway would desecrate the site and make ceremonies impossible. The tribe's elders provide testimony (which is kept confidential to protect sensitive cultural information) about the site's importance.
• The Outcome: The FHWA agrees that avoiding the sacred site is the only acceptable mitigation. They completely redesign a two-mile stretch of the highway, moving it nearly a quarter-mile away at significant expense. This demonstrates how the powerful, government-to-government role of tribal consulting parties can lead to major project changes to protect properties of religious and cultural significance.

The Section 106 process and the role of the consulting party are constantly being tested and debated, especially in the context of large, complex, and controversial projects.

• Linear Projects (Pipelines and Transmission Lines): How do you effectively consult on a project that crosses hundreds of miles, multiple states, and affects countless communities and cultural sites? The sheer scale challenges the traditional, localized model of consultation.
• “Demonstrated Interest”: Some federal agencies have been accused of setting an unreasonably high bar for granting consulting party status to individuals and community groups, effectively shutting out public participation. Conversely, some project applicants complain that the process is hijacked by groups with a “not in my backyard” (NIMBY) agenda rather than a genuine preservation interest.
• Resources and Capacity: Many SHPO offices and non-profit groups are severely underfunded and understaffed. They lack the resources to participate effectively in dozens of complex consultations at once, putting them at a disadvantage when negotiating with large corporations and federal agencies.

The world is not the same as it was in 1966, and the Section 106 process is evolving to keep pace.

• Digital Consultation: Geographic Information Systems (GIS), 3D modeling, and virtual meetings are making the process more accessible. A consulting party can now use an online mapping tool to see exactly how a project will affect a historic property, rather than trying to decipher a complex engineering blueprint.
• Climate Change and Resilience: As communities undertake massive projects to build seawalls, elevate structures, and manage retreat from coastlines, they will inevitably impact historic coastal properties (lighthouses, forts, historic districts). The Section 106 process will be a critical forum for balancing climate adaptation with historic preservation.
• Expanding Views of Heritage: There is a growing movement to recognize “cultural landscapes” (like rural farming valleys) and “intangible heritage” (like traditions and cultural practices) as `historic_properties`. This will challenge the Section 106 process to go beyond just buildings and archaeological sites, making the input of community and cultural consulting parties even more vital.

• adverse_effect: A project's impact on a historic property that diminishes the characteristics that make it significant.
• advisory_council_on_historic_preservation (ACHP): The independent federal agency that oversees the national historic preservation program and the Section 106 process.
• area_of_potential_effects (APE): The geographic area within which a project may directly or indirectly cause alterations to the character of historic properties.
• cultural_resources: A broad term that includes historic properties as well as other physical evidence of past human activity or culturally significant places.
• federal_undertaking: Any project, activity, or program funded, permitted, licensed, or approved by a federal agency.
• historic_property: Any district, site, building, structure, or object included in, or eligible for inclusion in, the `national_register_of_historic_places`.
• memorandum_of_agreement (MOA): A legally binding document that records the terms of a resolution for a project's adverse effects on historic properties.
• mitigation: Actions taken to avoid, minimize, or compensate for the adverse effects of a project.
• national_historic_preservation_act_of_1966 (NHPA): The foundational federal law governing historic preservation in the United States.
• national_register_of_historic_places: The official list of the Nation's historic places worthy of preservation.
• section_106_review_process: The specific regulatory process in the NHPA that requires federal agencies to consider their projects' effects on historic properties.
• state_historic_preservation_officer (SHPO): The state government official responsible for administering the national historic preservation program at the state level.
• tribal_historic_preservation_officer (THPO): The tribal government official responsible for administering a historic preservation program on tribal lands.

• national_historic_preservation_act_of_1966
• section_106_review_process
• advisory_council_on_historic_preservation
• state_historic_preservation_officer
• tribal_historic_preservation_officer
• environmental_law
• administrative_law