Section 106 Review of Federal Projects

Section 106 of the National Historic Preservation Act of 1966 requires consideration of historic properties in the thousands of federal actions that take place nationwide each year. The law and regulations require federal agencies to consult with the State Historic Preservation Officer (SHPO) and/or Tribal Preservation Officer and give the Advisory Council on Historic Preservation an opportunity to comment before projects are implemented. The Section 106 process also provides for public input in the decision making.

The Section 106 Regulations are published in the Code of Federal Regulations at 36 CFR Part 800 and posted on the Advisory Council’s website. That website also includes the Section 106 Users Guide, which provides an explanation of the Section 106 process.

The Section 106 Review Process
Federal Actions That Are Subject to Section 106 Review
Participants in the Section 106 Process
Questions and Answers
Project Review at the South Carolina SHPO
South Carolina SHPO Project Review Staff

The Section 106 Review Process
The Section 106 regulations outline a process for allowing federal agencies to fully consider historic preservation issues in planning projects: Agencies are responsible for completing the following steps in the process:

Initiating Review: The agency must determine if Section 106 applies to a given project and, if so, initiate review.

Identifying Historic Properties: The agency must determine the area that will be affected by the project (i.e., the area of potential effects or APE) and gather information to decide which properties in the project area are listed in or eligible for the National Register of Historic Places.

Assessing Effects on Historic Properties: The agency must determine how historic properties might be affected by the project.

Resolving Adverse Effects: The agency must explore alternatives to avoid or reduce harm to historic properties. Then the agency must reach agreement with the State Historic Preservation Officer/Tribal Historic Preservation Officer (and the Advisory Council in some cases) on measures to deal with any adverse effects. If there is failure to reach agreement, the Advisory Council will notify and send advisory comments to the head of the federal agency.

In carrying out these steps federal agencies must consult with the public and a variety of consulting parties specified in the regulations.

Federal Actions That Are Subject to Section 106 Review
Federal agencies carry out many activities that may affect historic properties. These include projects affecting property owned by the federal government such as rehabilitation or demolition of federal courthouses or timber management on U.S. Forest Service land. Federal activities also include projects assisted with federal funds, grants, or loans, such as Community Development Block Grants. Other activities require federal permits or licenses such as a Federal Communications Corporation (FCC) license needed to construct a cellular communications tower or a Federal Deposit Insurance Corporation (FDIC) license needed to open a branch bank, or an Army Corps of Engineers permit needed to fill a wetland. All of these activities are subject to the Section 106 process. Federal agencies are responsible for determining which of their activities are subject to Section 106 review and for ensuring that their designees and program applicants carry out responsibilities delegated to them.

Participants in the Section 106 Process

Federal Agencies

Federal agencies are responsible for initiating Section 106 review and completing the steps in the process that are outlined in the regulations. They must determine if Section 106 applies to a given project and, if so, initiate review. Federal agencies are also responsible for involving the public and other interested parties. Federal agencies are not mandated to preserve historic properties, but they are required to consider the impact of their actions on historic properties by following the Section 106 process.

Some federal agencies transfer some Section 106 responsibilities to others. For example, applicants for federal financial assistance or federal permits may be required to provide information about the project directly to the State Historic Preservation Officer (SHPO) and to complete the step of identifying historic properties in consultation with the SHPO.

Advisory Council on Historic Preservation

The Advisory Council on Historic Preservation is an independent federal agency established by the National Historic Preservation Act of 1966 to encourage federal agencies to consider historic properties in their project planning. The Council’s regulations govern the Section 106 process, and the Council oversees the implementation of the process. The Council can also become involved in individual project review. In addition, the Advisory Council advises the President and Congress on national preservation policy.

State Historic Preservation Officer (SHPO)

The State Historic Preservation Officer coordinates the state’s historic preservation program, including consulting with federal agencies during Section 106 review. In South Carolina, Rodger E. Stroup, Director of the South Carolina Department of Archives and History, is the State Historic Preservation Officer. Elizabeth Johnson is the Deputy State Historic Preservation Officer. Follow this link for information about the SHPO's project review staff. The SHPO represents the State’s interest in protecting South Carolina’s historic properties. The SHPO’s role in the Section 106 process is advisory and consultative.

Indian Tribes

The 1992 amendments to the National Historic Preservation Act and revised Section 106 regulations issued in January 2001 expand the role of Indian tribes. Federal agencies are required to consult with federally recognized Indian tribes that may attach religious and cultural significance to a historic property even if the tribe is no longer living within the boundaries of South Carolina. Numerous tribes with ancestral homelands in South Carolina now live far from the state. Follow this link for information about Indian Tribes with Ties to South Carolina. Visit the website of the Advisory Council on Historic Preservation at http://www.achp.gov/regs-tribes.html for more information about Consulting with Indian Tribes in the Section 106 Process.

The National Association of Tribal Historic Preservation Offices (NATHPO) has also developed a "best practices" guide to consultation. The guide is intended to promote successful consultation between federal agencies and Indian Tribes. The guide is available at http://www.nathpo.org/PDF/Tribal_Consultation.pdf.

The Section 106 regulations also provide for a federally recognized tribe to assume the role of the State Historic Preservation Officer (SHPO) on tribal lands and appoint a Tribal Preservation Officer (THPO) to consult directly with federal agencies during Section 106 review. South Carolina has one THPO. Wenonah G. Haire, DMD, is the THPO for the Catawba Nation. The THPO represents the Catawba Nation’s interest in protecting the tribe’s historic properties. The THPO’s role in the Section 106 process is advisory and consultative.

Local Governments

A representative of a local government with jurisdiction over the area in which the effects of a project may occur is entitled to participate as a consulting party in the Section 106 process.

Applicants for Federal Assistance, Permits, Licenses, and Other Approvals

Applicants for federal assistance, permits, licenses, and other approvals are entitled to participate as consulting parties in the Section 106 process.

Additional Consulting Parties

Individuals and organizations with a demonstrated interest in a project may participate as consulting parties "due to the nature of their legal or economic relation to the undertaking or affected properties, or their concern with the undertaking’s effects on historic properties." The Department of Archives and History’s website includes names and addresses for many of the state’s historical and preservation organizations at http://www.state.sc.us/scdah/hpothersites.htm. Indian Tribes with Ties to South Carolina includes tribes that are not federally recognized, but have expressed an interest in being consulted about projects in South Carolina. These lists are not comprehensive, but can help federal agencies begin to identify interested parties.

The Public

The federal agency must provide an opportunity for the public to comment on each step of the Section 106 process. At a minimum, the agency has to provide an opportunity for the public to review the results of the agency's effort to identify historic properties, evaluate their significance, and assess the project's effects on them. When adverse effects are found, the federal agency must also make information available to the public about the project, its effects on historic properties and alternatives to resolve the adverse effects, and must provide the public an opportunity to express their views on resolving adverse effects.

The Advisory Council website includes more information about participants in the Section 106 process at http://www.achp.gov/regs.html.

Questions & Answers
What makes a property "historic"?
A historic property is a building, structure, district, or site that meets the criteria for the National Register of Historic Places by possessing significance in American history, architecture, archeology, engineering, or culture. In order to be considered during Section 106 review the property must either be already listed in the National Register or be eligible for listing.

Can Section 106 prevent demolition of a historic building or destruction of an archaeological site?
In many cases, the Section 106 process alerts federal agencies to the presence of historic properties and plans are changed to protect them. However, Section 106 encourages, but does not mandate historic preservation. A federal agency may decide that a needed project cannot proceed without harming historic properties. The agency then consults with the SHPO or THPO and other consulting parties. In certain cases the Advisory Council may become involved. Consultation usually results in an agreement for mitigating damage to historic properties affected by the project. For example, this might involve moving a historic building in the path of a highway project or scientifically excavating an archaeological site that will be destroyed by an industrial development.

What are "consulting parties"?
Consulting parties are organizations and individuals that federal agencies must consult in carrying out the Section 106 process. The role of consulting parties is advisory. Consulting parties include the following:

(1) the State Historic Preservation Office,
(2) Indian tribes,
(3) representatives of local governments,
(4) applicants for federal assistance, permits, licenses, and other approvals, and
(5) other parties with a demonstrated interest in the project.

What is the "APE" for a project?
The area of potential effects (APE) means the geographic area or areas within which a project may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist. The APE is also influenced by the scale and nature of an undertaking and may be different for different kinds of effects (physical, visual, auditory, for example) caused by the undertaking.

What is an "adverse effect"?
An adverse effect alters, directly or indirectly, the characteristics of a historic property that qualify it for inclusion in or eligibility for the National Register. An adverse effect diminishes the integrity of a historic property’s location, design, setting, materials, workmanship, feeling, or association. Adverse effects on historic properties may include, but are not limited to:

physical destruction or damage to all or part of the property (for example, grading of an archaeological site or demolition of a building),
alteration of a property that is not consistent with the Secretary of the Interior’s Standards for the Treatment of Historic Properties (for example, gutting the interior of a building),
removal of a property from its historic location,
changes to the setting of a historic property (for example, construction of a cell tower adjacent to a historic grist mill or a construction of an industrial park near a rural historic district), and
introduction of visual, atmospheric, or audible elements (for example, construction of a four-lane highway beside a rural farm complex or or a branch bank in a residential historic district).

How can private individuals and organizations become involved in the Section 106 review of a project?
Federal agencies are mandated to notify the public, with sufficient information to allow meaningful comments, so that they can express their views during the various stages and decision-making points in the Section 106 process. The federal agency may also allow individuals and organizations with a demonstrated interest in the project to participate as consulting parties "due to the nature of their legal or economic relation to the undertaking or affected properties, or their concern with the undertaking’s effects on historic properties."

A Citizen’s Guide to Section 106 Review, developed by the Advisory Council, helps citizens understand the Section 106 process and use it to influence federal agency decisions.

Preservation Hotline #3: Is There a Highway Project in Your Future?, produced by the State Historic Preservation Office (SHPO), briefly describes the state and federal laws that affect highway construction, where to get more information about proposed projects, and the differences between Section 106 of the National Historic Preservation Act and Section 4(f) of the U.S. Department of Transportation Act.

For More Information:
Project Review at the South Carolina SHPO outlines the project review process.

If you have questions or need more information, contact the State Historic Preservation Office (SHPO) project review staff.