Section 106 Review Process Frequently Asked Questions
Section 106 Review refers to the Federal review process designed to ensure that historic properties are considered during Federal project planning and implementation. The Advisory Council on Historic Preservation, an independent Federal agency, administers the review process, with assistance from State Historic Preservation Offices.
Congress established Section 106 as part of the National Historic Preservation Act of 1966 (NHPA). Strengthened and expanded by several subsequent amendments, NHPA today is the cornerstone of the nation’s historic preservation policy.
Section 106 was included in NHPA due to public concern that our nation’s historic resources were being destroyed during federally sponsored projects. Before passage of NHPA, Federal preservation law applied only to a handful of nationally significant properties; Congress subsequently recognized that new legislation was needed to protect the many other historic properties that were being harmed by Federal activities.
Section 106 requires Federal agencies to take into account the effects of their undertakings on historic properties. An agency must also afford the Advisory Council on Historic Preservation an opportunity to comment.
The term SHPO refers to the State Historic Preservation Officer. Under Section 101(b) of NHPA, the SHPO is appointed by the Governor to administer the State Historic Preservation Program and to reflect the interests of the State and its citizens in the preservation of their cultural heritage. In Idaho, the SHPO is the Executive Director of the Idaho State Historical Society. The term SHPO is also used informally to refer to the State Historic Preservation Office. The office’s professional staff has expertise in archaeology, history, architectural history, and historic preservation. The National Park Service must approve each State program. In addition to Section 106 Review responsibilities, the SHPO also administers the National Register of Historic Places program for the State; provides grants to local governments; maintains the inventory of archaeological and historical sites and historic buildings and structures; administers the Federal tax incentives program; and provides educational and technical assistance on historic preservation issues.
The term THPO refers to the Tribal Historic Preservation Officer. Under Section 101(d) of NHPA, each tribal government can designate a THPO and establish a tribal historic preservation program. Like State programs, the National Park Service must approve tribal preservation programs established under Section 101(d). If a Tribe has a THPO as defined under Section 101(d), Federal projects that take place on that Tribe’s reservation lands are reviewed only by the THPO, with no SHPO involvement. At this time the Nez Perce and the Coeur d’Alene Indian Tribes are Idaho’s only recognized THPOs. Contact the Tribal Historic Preservation Officer for the respective Tribe.
The Advisory Council on Historic Preservation (ACHP) is an independent Federal agency that promotes the preservation, enhancement, and productive use of our nation’s historic resources and advises the President and Congress on national historic preservation policy. In this capacity, ACHP also issues regulations (36CFR800) to implement Section 106 of NHPA and oversees the 106 Review process. If a historic property will be adversely affected, the Federal agency must notify the ACHP and seek their guidance. The twenty-member Council meets quarterly, but the ACHP’s professional staff handles the daily operations.
NHPA defines an undertaking as “a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of the agency; those carried out with Federal financial assistance; those requiring a Federal permit, license, or approval.” Types of Federal actions that are not considered “undertakings” include Federal social security payments, student loans, or grants to libraries for purchasing books.
Section 106 is part of the National Historic Preservation Act (NHPA) and not part of the National Environmental Policy Act (NEPA). Therefore, a project that is considered a “categorical exclusion” under NEPA is not exempted from review under Section 106. However, projects or certain classes of undertakings can be specifically exempted from Section 106 Review through consultation and agreement with the SHPO and the Advisory Council on Historic Preservation.
36CFR800, the regulations outlining the Section 106 Review process, defines “area of potential effects” as the “geographical area within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist.” The Federal agency needs to assume that there is the potential for historic properties to exist until the identification step of the review process has been completed.
For purposes of Section 106, any property listed or eligible for listing in the National Register of Historic Places is considered “historic.” This may include historic buildings or structures, archaeological and historic sites, historic districts, and objects (such as monuments). It also includes artifacts, records, and material remains related to such a property.
The National Register of Historic Places is the official national list of those properties considered important in our past and worthy of preservation. Authorized under NHPA, the National Register is a program of the National Park Service administered In Idaho by the SHPO. The list includes buildings, sites, structures, districts, and objects. Properties can be significant at the local, state, or national level. To be eligible for listing, a property must typically be at least 50 years old, meet one of the four National Register criteria, and retain integrity of location, design, setting, materials, workmanship, feeling, and association. Traditional cultural properties, or properties with traditional cultural significance to a living community, may also be eligible for listing in the National Register.
A traditional cultural property (TCP) is a property that is significant because of its association with cultural practices or beliefs of a living community that are rooted in that community’s history and are important in maintaining the cultural identity of the community. To be considered in the Section 106 Review process, a TCP must be eligible for listing, or listed, in the National Register of Historic Places. National Register Bulletin 38 provides guidelines for evaluating and documenting Traditional Cultural Properties.
A National Historic Landmark is a property that has significance at the national level and is designated as such by the Secretary of the Interior. In Idaho, there are eleven National Historic Landmarks.
The National Park Service established the following criteria to determine if a property is significant in American history, architecture, archaeology, engineering, or culture of a community. Properties eligible for listing, or listed, in the National Register are those:
A. That are associated with events that have made a significant contribution to the broad patterns of our history;
B. That are associated with the lives of persons significant in the past;
C. That embody distinctive characteristics of a type, period or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or
D. That have yielded, or may be likely to yield, information important in prehistory or history.
Advisory Council on Historic Preservation
State Historic Preservation Officer
Tribal Historic Preservation Officer or Indian Tribes
Applicants for Federal assistance, permits, or licenses
Local historical societies
Local historic preservation commissions
Under 36CFR800, the principal participants are the Federal agency and the Advisory Council on Historic Preservation (ACHP). The ACHP, however, does not usually get involved in individual Section 106 reviews unless a historic property will be adversely affected. Most of the day-to-day consultation occurs among the Federal agency, the State Historic Preservation Officer (SHPO), and other consulting parties. The SHPO provides professional recommendations and opinions, but the Federal agency makes the decisions in the review process and remains legally responsible for completing it.
Federal agencies are also required to consult with Indian Tribes throughout the process. Guidance on tribal consultation is found on the Advisory Council’s website. Other consulting parties, including local governments; local historical societies and historic preservation commissions; and applicants for Federal grants, licenses, or permits, may participate in the review process.
The four steps of the Section 106 Review process are described in the Federal regulations 36CFR800:
1. Initiate Section 106 Review
2. Identify historic properties within the project’s Area of Potential Effects
3. Assess adverse effects on historic properties
4. Resolve adverse effects
The Federal agency involved in the proposed project or undertaking is responsible for initiating and completing the Section 106 Review process. The agency works with the SHPO, and in some cases, the Advisory Council on Historic Preservation. Under a few Federal programs, Federal agencies have delegated the legal responsibility to comply with Section 106 to a local government. Federal agencies can also authorize applicants for Federal grants, licenses, or permits to initiate consultation with the SHPO, but the agency remains legally responsible for all findings and determinations made during the review process.
The SHPO has thirty days to comment at each step of the review process. However, if SHPO receives the appropriate information in the first project review package, many reviews are completed in only thirty days. If insufficient information for review is received, the SHPO’s response may be a request for additional information. The SHPO may also recommend additional investigations or studies that add to the overall review time. It is, therefore, required under the regulations and in the Federal agency’s best interest to initiate Section 106 Review early in project planning.
If you do not receive a response from our office within thirty (30) days, assume we have not received the project to review. We will always provide responses for a project, even if our response is “no comment”.