Section 106 of the National Historic Preservation Act
Section 106 of the National Historic Preservation Act (NHPA) requires federal agencies, like the Federal Highway Administration (FHWA), to consider the effects of a project on historic properties. The NHPA does not require historic properties to be preserved but does require agencies proposing projects using federal funds or requiring federal approval to participate in a consultation process that considers the effects the project will have on historic properties. The people and organizations involved in the consultation process vary by project but may include the State Historic Preservation Office (SHPO), the Tribal Historic Preservation Officer (THPO), federally recognized Indian tribes and Native Hawaiian Organizations, local governments, and the public. These groups are known as consulting parties.
Historic properties
The federal definition of historic properties is used for the Section 106 process. Historic properties include properties listed in or eligible for inclusion in the NRHP. Historic properties can include many different types of properties including:
- Prehistoric, historic, or archaeological sites
- Prehistoric or historic districts, buildings, structures (such as bridges), and objects
- Properties of traditional religious and cultural importance
There are also state laws that require potential impacts to historic properties to be looked at. They include:
- The Minnesota Historic Sites Act, for properties listed on the NRHP.
- The Minnesota Field Archaeology Act, for known or possibly significant archaeological sites.
- The Minnesota Private Cemeteries Act, legally unrecorded historic or precontact cemeteries.
Steps in the Section 106 review process
There are four main steps in the Section 106 review process, shown in the chart below. For the project, FHWA is the lead agency for Section 106 reviews and is responsible for making sure the project follows federal rules. MnDOT CRU has an agreement with FHWA to do this work for transportation projects in Minnesota. MnDOT CRU works with all consulting parties during the process to do the following:
Look at whether a project might affect historic properties.
- Figure out the area of potential effect (APE) for the project.
- Decide if a property is eligible for listing on the NRHP.
- Work with the person or organization that wants to build the project to reduce any effects from the project.
- Decide whether the project will affect historic properties.
Step 1: Start consultation
The agency proposing the project corresponds with SHPO or the lead federal agency to identify and describe the project, including any known historic properties in the area. In this case, MnDOT is the project proposer. MnDOT CRU will lead coordination efforts and will work with SHPO.
Step 2: Identify properties
The lead federal agency determines the proposed project’s APE for the proposed project and any potential archeological and historic sites within the APE. The APE is the geographical area(s) where a project may potentially affect use and character of historic properties during and after construction.
If no historic properties are in the APE or there is unlikely to be any adverse effects to historic properties that do exist, the Section 106 process is complete.
Step 3: Assess effects
The project’s potential effects on historic properties are assessed. An adverse effect is found when the project diminishes the property’s integrity, or the important characteristics that convey its eligibility for the NRHP. Not all effects created by a project are adverse. The federal agency determines the potential for adverse impacts from the project.
Step 4: Resolve effects
If a project looks like it will adversely affect a historic property, the proposer will think of possible project alternatives or modifications to avoid, minimize, or mitigate the effect, preferably in that order. Participants in the consultation process will work together to come to an agreement on how the potential effects will be resolved.
Examples of resolutions to potential adverse effects of a hypothetical project could include:
- Avoid: The location of the project is shifted to completely avoid adverse effects to a historic property.
- Minimize: The design of the project is modified to reduce most of the adverse effects to a historic property.
- Mitigate: Affected areas of the historic property will be restored following construction of the project, and educational signage will be added to describe the site’s historic significance.
Once an agreement is reached, a Section 106 Memorandum of Agreement (MOA) or Programmatic Agreement is signed by the consulting parties to record the final resolution and ensure compliance.
For more information visit the Advisory Council on Historic Preservation.