As massive government-sponsored construction projects, such as the interstate highway system, and urban renewal in older cities became commonplace after World War II, an estimated 25 percent of the nation's finest historic sites were lost. In response to growing public concern, Congress passed the National Historic Preservation Act (NHPA) in 1966 (16 U.S.C. 470 et seq.). The law established a national policy for the protection of important historic buildings and archeological sites, and outlined responsibilities for federal and state governments to preserve our nation's heritage.
The SHPO is mandated by the NHPA to represent the interests of the state when consulting with federal agencies under Section 106 of the NHPA and to maintain a database of historic properties. The NHPA also created the Advisory Council on Historic Preservation (ACHP), an independent federal agency in the executive branch that oversees the Section 106 review process. In addition to the views of the agency, the SHPO and the ACHP, input from the general public and Native American tribes is also required. The responsibilities of all parties in the Section 106 review process are set forth in federal regulations developed by the ACHP as 36 CFR 800: Protection of Historic Properties.
The NHPA requires any agency issuing a federal permit or license, providing federal funds or otherwise providing assistance or approval to comply with Section 106. A few examples of projects that require compliance with this law include:
- Development activities near or above the water which require a permit from the Corps of Engineers
- the installation of cell towers which require a permit from the Federal Communications Commission
- Construction of municipal wastewater treatment facilities that require permits from the Environmental Protection Agency
- New highway construction projects by the State Department of Transportation that utilizes federal funds
- Local government projects to rehabilitate or demolish housing, using funds from the U.S. Department of Housing and Urban Development
- Cell phone towers and antenna - DAHP uses the FCC E-106 system for all FCC reviews.
Details about Section 106 Regulations (36 CFR Part 800)
- Section 106 Regulations
- A Citizen's Guide to Section 106 Review
- A Citizen's Guide to Section 106 Review - Spanish version
- Working with Section 106 - ACHP
- "Reasonable and Good Faith Effort" by Federal Agencies Statement - ACHP
- Section 106 Flowchart
- Relationship of Section 106 to Other Laws
- Nationwide Programmatic Agreements
- Role of the Tribal Historic Preservation Office
- Section 106 and the UN Declaration on the Rights of Indigenous People
- MOA Template
General Section 106 Steps
- Submit a letter to DAHP initiating consultation for the project by defining on a map the Area of Potential Effect (APE). Submit letters to firstname.lastname@example.org.
- Continue consultation with DAHP to determine what, if any, cultural resource investigation will need to occur.
- Hire a professional consultant(s) to inventory all historic and archaeological resources within the Area of Potential Effect (APE) at the reconnaissance level which are over 50 years old using the WISAARD System. However, many large- scale projects which may extend beyond a ten-year time frame, DAHP recommends that a survey cut-off date of 40 years be implemented.
- For further information on how to inventory historic buildings click here.
- For further information on how to inventory archaeological resources click here.
- Based on the inventory of historic and archaeological resources, DAHP will make a determination of eligibility for listing on the National Register of Historic Places for the various resources.
- Properties already listed on the National Register are, of course, "eligible". Properties not yet listed are considered potentially eligible if they meet the following criteria:
- Age - Are 50 years old or older
- Intergrity - Have a high level of architectural/physical intergrity.
- Based on the inventory of historic and archaeological resources, the project proponent (the federal agency) will make a "determination of the effect" that the work will have on the eligibile resource. Note that the "effect" needs to be determined only for eligible properties. There are three possible effects:
- No Historic Properties - No historic properties in the project area because they are less than 50 years old or they lack integrity.
- No Adverse Effect - Changes are proposed, but they meet Secretary of the Interior Standards.
- Adverse Effect - Work is proposed that will damage or diminish the historic integrity of the property or its research potential.
- In most cases, archaeological sites receive a No Adverse Effect if the site’s value lies solely in its research potential, and the information can be preserved through appropriate research.
- DAHP will either concur with the "determination(s)" and "effect" call(s) or not concur resulting in the following:
- No Historic Properties: You are finished with the Section 106 Review consultation process.
- No Adverse Affect: You are finished with the Section 106 Review consultation process.
- Adverse Effect: DAHP and the project proponent enter into a "Memorandum of Agreement" (MOA) to mitigate the adverse effect or in the case of archaeological impact, the proponent submits a research design to mitigate adverse effects through proper recovery. The MOA is signed by the project propenent and DAHP. Note that the federal agency is required to submit the MOA to the Federal Advisory Council, along with a description of the project and the alternatives that were considered to mitigate the "adverse effect." The Advisory Council has 30 days to review the project and decide if it is willing to sign the MOA. Once the MOA is signed, the documentation should be completed and accepted by designated repositories before the project begins.
- Note that if DAHP does not concur: Federal agencies may only make final determinations on their own with assistance from other federal agencies such as the Keeper of the National Register of Historic Places, or the Advisory Council on Historic Preservation.