July 1, 2014

The Basics of Section 106 Review

If you take pride in your local heritage and love all the quirks that make your community special, chances are good that you’d be willing to protect it if it suddenly came under threat. So, you should know about Section 106 -- a viable tool to help preservation efforts -- and how you can use it to save a place that matters to you.

What is Section 106?

Section 106 of the National Historic Preservation Act of 1966 (NHPA) ensures that federal agencies take preservation values into consideration when they propose a project that may affect historic properties. In other words, it forces federal agencies to stop and look at the consequences their undertakings could have on historic (or potentially historic) places.

Overseen by the Advisory Council on Historic Preservation (ACHP), the Section 106 review process benefits preservationists because it relies heavily on public input and feedback. Federal agencies are responsible for notifying the public of their goals and consulting with the public to resolve impacts on historic properties before proceeding with possibly damaging projects.

There’s some basic but crucial information to know when it comes to understanding Section 106, so let’s start with the parties involved in the process.

  • Federal agencies: Yes, we already mentioned this group, but it’s important to repeat because Section 106 applies only to agencies affiliated with the federal government.
  • The Advisory Council on Historic Preservation (ACHP): This independent federal agency oversees the review process and steps in when there is conflict or when otherwise deemed necessary.
  • State Historic Preservation Officers, Tribal Historic Preservation Officers, and/or Native Hawaiian Organizations (SHPO, THPO, NHO): Federal agencies must consult with these government appointed officials and their staff during the review process in order to assess the possible or apparent adverse effects the project may create. (More explanation on this later.)
  • The public and you: Given that this review process was created for the benefit of the public, you are perhaps the most important party involved. Section 106 is our opportunity to receive all of the information about the project, voice our concerns, and make a difference.

Now that we’ve talked about who is involved, let’s talk about what is involved. With preservation being the central goal of this review process, Section 106 is designed to protect and save historic properties. However, it’s important to know that historic properties are not just limited to properties that are already listed on the National Register of Historic Places.

They also include non-listed historic properties that are eligible for the National Register. Evaluating non-listed properties to see whether they are potentially historic is part of what occurs during the consultation process, as you’ll soon see.

What is the process of Section 106 review?

The Section 106 review process involves a lot of detailed steps, and it’s vital to understand those details if you wish to influence the outcome of a potentially harmful federal project. We’ve broken down the process for you into five easy-to-understand steps.

1. Initiate 106.

It is the duty of federal agencies to begin the Section 106 review process. To do so, they must identify if their proposed project will affect any historic properties. During this step, they must also identify the SHPO/THPO/NHO with whom they are going to consult, and reach out to other consulting parties and the public.

2. Identify historic properties.

During this step of the review, federal agencies and their consulting parties must identify all historic properties that their project will affect. Conflict can sometimes arise during this stage, especially for properties that are not your typical historic structures. Traditional cultural properties that are religiously and culturally significant to Indian tribes would be an example. However, any disputes can be resolved by the Keeper of the National Register, who has the final say on what is or is not eligible for the National Register.

3. Assess adverse effects.

Consultation is most important at this step of the review process. Adverse effects are the alterations of a building or site that would damage its integrity and/or character due to the project. If the consulting parties agree that the project wouldn’t have any adverse effects on the historic properties, the federal agency may proceed with its project under agreed-upon conditions. However, if the consulting parties determine that the project would have adverse effects, they must begin to explore ways to prevent, minimize, or mitigate the adverse effects.

4. Resolve adverse effects.

Once the issue of adverse effects has been tackled, the next stage usually results in the negotiation of a Memorandum of Agreement (MOA) among the consulting parties. This agreement outlines the measures that the federal agency must take in order to prevent, minimize, or mitigate the adverse effects.

5. Implement the project.

If an MOA is reached, the project will proceed as agreed upon. If the consulting parties cannot come to an agreement, the ACHP will step in to review the case and give their comments, which the federal agencies must consider.

So where’s the public in all of this, you might be wondering? You’ll learn more about that next week in part two of the toolkit, where we will share an abundance of tips on how you can get involved in a Section 106 review. In the meantime, check out this resource to learn more: The Advisory Council on Historic Preservation’s A Citizen’s Guide to Section 106 Review

Cassie Keener is an Editorial Intern at the National Trust. She enjoys writing, spending time outdoors, and enthusing about movies and music.

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