Section 106Edit
Section 106 is a provision of the National Historic Preservation Act that requires federal agencies to consider the effects of their undertakings on properties listed in or eligible for listing in the National Register of Historic Places. Enacted in the mid-1960s amid a push to modernize the country without erasing its heritage, the statute creates a deliberate, transparent path for balancing development with preservation. The process is triggered whenever a federal action—such as funding, permitting, licensing, or construction—could affect historic properties, and it sits alongside other environmental and planning reviews to ensure that heritage concerns are not treated as an afterthought. For discussions of the statutory framework and implementing rules, see the National Historic Preservation Act and its associated regulations at 36 CFR Part 800, which outline how federal agencies, state preservation offices, and other stakeholders carry out Section 106 responsibilities. National Historic Preservation Act 36 CFR Part 800
At the heart of Section 106 is a cooperative process. Federal agencies must consult with the State Historic Preservation Officer, potentially involved tribal authorities, local governments, and other interested parties to identify historic properties that may be impacted and to assess the project’s effects on those properties. The key outcomes are typically a finding of no adverse effect, an adverse effect, or a resolution through mitigated agreements. The process emphasizes transparency, predictable timelines, and the goal of avoiding or mitigating harm to significant historic resources. The Advisory Council on Historic Preservation, now known as the Advisory Council on Historic Preservation, provides national guidance and oversight to keep the process consistent across agencies. Advisory Council on Historic Preservation State Historic Preservation Officer
Section 106 operates in a complex ecosystem of planning and environmental review. It frequently intersects with the National Environmental Policy Act process, and in practice agencies often coordinate the two to prevent duplicative work and to align mitigation measures with broader project outcomes. The consultation framework also accommodates properties of religious or cultural significance, historic districts, and landscapes, allowing for programmatic approaches where appropriate, such as Programmatic Agreements that streamline routine projects while still protecting important resources. National Environmental Policy Act Programmatic Agreement National Register of Historic Places
What Section 106 Covers
- Historic properties: The statute protects properties that are listed in the NRHP or are officially deemed eligible for listing, including buildings, sites, structures, districts, and objects. The scope includes both individual resources and broader cultural landscapes. National Register of Historic Places
- Federal undertakings: Any action by a federal agency that may affect historic properties—such as construction, land disposition, or federal funding—triggers the Section 106 process. Federal undertaking
- Consultation and mitigation: The process centers on meaningful consultation with SHPOs and other stakeholders, with agreements on measures to avoid, minimize, or mitigate adverse effects. State Historic Preservation Officer Mitigation
- Regime and rules: The implementing rules are found in 36 CFR Part 800, which describe steps from identification to resolution, including opportunities for public comment and tribal input. 36 CFR Part 800
The Process: Roles and Steps
- Initiation and identification: Agencies determine whether a project constitutes a Section 106 undertaking and identify historic properties that could be affected. Federal undertaking
- Consultation and effect determination: Agencies consult with SHPO and other participants to determine whether effects are adverse or not, and to develop appropriate mitigation if needed. Adverse effect Consultation
- Mitigation and resolution: If effects are adverse, mitigation measures, agreements, or alterations to the project may be pursued, often formalized in a Programmatic Agreement or similar instrument. Mitigation Programmatic Agreement
- Documentation and oversight: The ACHP provides guidance and may participate in the process to ensure consistency and protect national interests in heritage conservation. ACHP
In practice, Section 106 has become a model for how federal decisions can be made more transparent and durable by requiring upfront consideration of cultural resources. It also provides a framework for balancing interests—economic development, local heritage, and the rights of tribal communities—without granting a blanket veto to any single party. The process has evolved to include streamlined approaches for low-impact projects and to accommodate faster decision-making when resources are less at risk. Tribal consultation Programmatic Agreement
Controversies and Debates
From a practical standpoint, critics on balancing budgets and accelerating infrastructure often argue that Section 106 can slow critical projects—roads, pipelines, transmission lines, and public facilities—by introducing additional review layers or by elevating resource concerns to a level that complicates consensus. Advocates for streamlined development contend that well-designed federal reviews should be predictable, time-limited, and capable of expediting harmless or routine undertakings through programmatic approaches. The tension between certainty for developers and protection of heritage is a central theme in debates about reforming the process. NEPA 36 CFR Part 800
Proponents of preservation emphasize that credible threats to historic properties are often substantial and that a transparent process yields benefits beyond a single project—protecting local identity, supporting tourism, and preserving historical memory for future generations. Critics, especially those who argue that federal procedures are overbearing, contend that the rising scope of what counts as a historic property—sometimes including places with limited architectural uniqueness but strong cultural associations—can be used to delay or derail projects with broad economic benefits. In these debates, proponents of reform tend to call for tighter standards, faster timelines, and clearer criteria for recognizing adverse effects, while ensuring that tribal sovereignty and local input remain meaningful. Some critics describe woke critiques of preservation as mischaracterizations of the statute; in their view, Section 106 is a pragmatic tool for orderly decision-making rather than a vehicle for obstructing progress. They argue that when applied with discipline, the process protects assets that justify long-term value while keeping development on track. National Register of Historic Places Tribal consultation ACHP
Reform and Policy Considerations
- Clear, predictable timelines: Advocates argue for hard deadlines within the Section 106 workflow to reduce delays and to give developers and communities a realistic schedule. 36 CFR Part 800
- Programmatic and categorical approaches: Expanding programmatic agreements for routine, low-risk actions can cut red tape while preserving essential protections. Programmatic Agreement
- Greater state and local alignment: Allowing more state and local input to align with SHPO processes and to reflect local values and land-use plans, while preserving federal oversight where needed. State Historic Preservation Officer
- Focused protection of truly significant resources: Emphasizing clear, objective criteria for what constitutes a historically significant property to avoid overreach and to ensure that scarce resources are directed to genuinely valuable assets. National Register of Historic Places
- Tribal sovereignty and consultation: Strengthening mechanisms for meaningful tribal participation in a manner consistent with tribal self-government and cultural heritage protection. Tribal consultation
The discussion around Section 106 also intersects with broader political and regulatory debates about federal oversight, land use, and the appropriate balance between national standards and local autonomy. While some critics argue that the process can be weaponized to advance ideological agendas or to impede growth, supporters claim it remains the most practical framework for reconciling development with a careful, historically informed approach to the built and cultural environment. The current debate often centers on how to preserve the integrity of heritage while ensuring that essential public and private projects can proceed with reasonable speed and certainty. Adverse effect Mitigation