A Look at Section 106 Review
What is Section 106 review?
This term refers to the Federal review process designed to ensure that historic properties are considered during Federal project planning and execution. The review process is administered by the Advisory Council on Historic Preservation, an independent Federal agency, together with the State Historic Preservation Office.
Who established Section 106?
The Congress did, as part of the National Historic Preservation Act (NHPA) of 1966 [PDF]. NHPA, strengthened and expanded by several subsequent amendments, today has become the cornerstone of this country's historic preservation policy.
Why was Section 106 created?
NHPA was enacted because of public concern that so many of our Nation's historic resources were not receiving adequate attention as the Government sponsored much-needed public works projects. In the 1960s, Federal preservation law applied only to a handful of nationally significant properties, and Congress recognized that new legislation was needed to protect the many other historic properties that were being harmed by Federal activities.
What does NHPA say?
Section 106 of NHPA requires that every Federal agency "take into account" how each of its undertakings could affect historic properties. An agency must also afford the Council a reasonable opportunity to comment on the agency's project.
What is a Federal "undertaking"?
This term includes a broad range of Federal activities: construction, rehabilitation and repair projects, demolition, licenses, permits, loans, loan guarantees, grants, Federal property transfers, and many other types of Federal involvement. Whenever one of these activities affects a historic property, the sponsoring agency is obligated to seek Council comments.
What is a historic property?
For purposes of Section 106, any property listed in or eligible for the National Register of Historic Places is considered historic.
The National Register is this country's basic inventory of historic resources and is maintained by the Secretary of the Interior. The list includes buildings, structures, objects, sites, districts, and archeological resources. The listed properties are not just of nationwide importance; most are significant primarily at the State or local level. It is important to note that the protections of Section 106 extend to properties that possess significance but have not yet been listed or formally determined eligible for listing. Even properties that have not yet been discovered (such as archeological properties), but that possess significance, are subject to Section 106 review.
The Advisory Council
What is the Advisory Council on Historic Preservation? The 19-member Advisory Council on Historic Preservation is composed of a chairman, vice chairman, six other private citizen members, a governor, and a mayor--all appointed by the President of the United States. The Council also includes the Secretaries of the Interior and Agriculture the heads of four Federal agencies designated by the President, the Architect of the Capitol, the chairman of the National Trust for Historic Preservation, and the president of the National Conference of State Historic Preservation Officers. The Council members usually meet four times during the year. Day-to-day business of the Council involving Section 106 review is conducted by an executive director and a professional staff of historians, architects, archaeologists, planners, lawyers, and administrative personnel.
Section 106 Participants
Who initiates Section 106 review? The Federal agency involved in the proposed project or activity is responsible for initiating and completing the Section 106 review process. Under certain circumstances, local governmental bodies may act as the responsible agency. The agency works with the State Historic Preservation Officer (an official appointed in each State or territory to administer the national historic preservation program) and the Council to do so. In this fact sheet, the term "agency" is used to mean the responsible unit of government, be it Federal or local. There can be other participants in Section 106 review as well. At times, local governments, representatives of Indian tribes, applicants for Federal grants, licenses or permits, and others may join in the review process when it affects their interests or activities. How long does Section 106 review take? By law, the Michigan State Historic Preservation Office has thirty days to review a project, beginning on the day it is received by our office. In the event a project is found to have an adverse effect on historic resources and the federal agency disagrees with the finding of adverse effect, the federal agency may request the Advisory Council for Historic Preservation (ACHP) review the finding. In such a case, the ACHP will provide its opinion within 15 days of receiving the documented finding from the federal agency. At its discretion, the ACHP may extend that time period for an additional 15 days, in which case it will notify the agency of such an extension prior to the end of the initial 15-day period.
Please be aware that if your project is found to have an adverse effect on historic resources, the timeline of thirty days applies only to the initial review and finding for the project. The process of resolving the adverse effect and moving to the signing of a Memorandum of Agreement can be a lengthy process.
Timing is crucial to the Section 106 process. It is important that consideration of historic properties occur in the early stages of a project so that preservation concerns can receive thorough consideration as a project is planned. Early consideration also permits modifications to a project while they are relatively easy to accomplish and reduces the potential for conflict and delay.
Where is more information available? This brief look at Section 106 review cannot tell the whole story. For complete information about the Council's review process, consult the Council's regulations at 36 CFR Part 800, published September 2, 1986. The Council has available without charge an annotated version of its regulations, which aids understanding of the regulatory language, as well as a booklet entitled Section 106, Section 106, Step-by-Step, which provides a more detailed introductory look at the review process. A complete list of publications in the "Working with Section 106" series is available from the Council.
You can also find more information on the Cultural Resources Management and Planning page of our website.