Frequently Asked Questions about Section 106 of the National Historic Preservation Act
What is Section 106?
Section 106 of the National Historic Preservation Act (NHPA) (54 USC § 306101) and its implementing regulations, 36 CFR Part 800, is a law that requires federal agencies to consider the effects of federally funded projects on historic properties (i.e., listed, or eligible for listing, in National Register of Historic Places), and when applicable, provide other consulting parties and the public an opportunity to comment on such projects prior to the expenditure of any federal funds. The review process addresses two key issues: 1) whether the proposed project has an effect on historic properties; and 2) whether any effect on the historic property will be adverse.
What are historic properties?
Historic properties include buildings, structures, archaeological sites, districts, objects, and landscapes that are listed, or eligible for listing, in the National Register of Historic Places (National Register). The regulations at 36 CFR §60.4 identify the criteria for National Register eligibility. Additional guidance on applying the eligibility criteria is contained in the National Park Service’s (NPS) National Register Bulletin.
The NPS maintains a listing of all historic properties in the National Register. The NPS may also have information on properties that have been nominated for (but not yet listed in) the National Register. Additional information about state and local designation or the eligibility of historic properties is available from your State Historic Preservation Office (SHPO) or THPO (Tribal Historic Preservation Office), local historical societies, public libraries, or local government archives.
Is my project subject to Section 106 review?
All NEH funded projects involving the following activities constitute an undertaking: 1) all new construction and facility expansion projects; 2) alteration and renovation projects where exterior changes to the building façade or surroundings may be made (including roof, windows, and parking lots); 3) projects where interior renovations may be made to a building that is over fifty (50) years old, or is historically, architecturally, or culturally significant; and 4) ground disturbances (such as grading, other site preparation or archeology). These projects are subject to Section 106 review and therefore must comply with Section 106 of the NHPA and its implementing regulations.
When does a Section 106 review start and how long does it take?
NEH formally initiates the Section 106 review when it decides to fund an application. Therefore, applicants should build sufficient time into their project plans to account for a review period if NEH decides to fund their applications.
When can I start work on my project?
Recipients cannot begin NEH-funded work involving construction, renovation, repair, rehabilitation, or ground or visual disturbance, and NEH cannot release any federal funds, until NEH concludes its Section 106 and related National Environmental Policy Act (NEPA) (42 USC 4331 et seq.) reviews.
However, recipients may use matching funds for approved non-construction preparatory activities, such as architectural and engineering designs, permitting, and licenses, and may also undertake work related to the environmental and historic preservation reviews prior to NEH completing the Section 106 and NEPA review processes.
What happens if my organization has already started physical work on our project when we submit an application?
If the project is already underway and you have questions about your organization’s eligibility for NEH grant funds, please contact the Division or Office identified on your program’s Notice of Funding Opportunity. Under Section 110(k) of the NHPA, Federal agencies are prohibited from providing grants, licenses, or other assistance to applicants who intentionally, significantly, and adversely affect historic properties. This provision, known as the "anticipatory demolition" section, is designed to prevent applicants from destroying historic properties prior to seeking Federal assistance in an effort to avoid the Section 106 review process. NEH encourages all applicants to submit their grant applications early in the project's planning process to avoid any complications from this provision.
Who is involved in the Section 106 process?
Section 106 requires NEH to engage in formal consultation with certain groups and individuals, known as consulting parties. Consulting parties may include:
- the NEH award recipient;
- NEH, the Advisory Council for Historic Preservation (ACHP) and other federal agencies with an involvement in the project;
- the SHPO/THPO;
- Indian tribes and Native Hawaiian organization;
- local governments; and
- individuals and organizations with demonstrated interest in the undertaking.
Section 106 also requires NEH, or the recipient on behalf of NEH, to notify the public of undertakings NEH proposes to fund, and to give the public an opportunity to comment on the project. NEH provides recipients with the public notice language and instructions to post notice in a prominent location on their website and around the project site. Additional information on the roles of consulting parties is available at 36 CFR §800.2.
Who is responsible for Section 106 review? What information is required?
NEH is ultimately responsible for ensuring Section 106 compliance. However, NEH cannot meet its obligations without the cooperation and assistance of NEH recipients. Therefore, in accordance with the NEH Section 106 delegation letter, NEH authorizes recipients to act on its behalf and initiate the Section 106 process, identify historic properties and an assessment of adverse effect (36 CFR §§ 800.3 through 800.5) with the SHPO and/or THPO.
The first step is for the recipient to provide project information, make a finding of effect based on the project information, and request concurrence from the appropriate SHPO. To locate your SHPO, please refer to the SHPO directory. If you need assistance initiating the Section 106 process, the SHPO may help in identifying consulting parties as part of the consultation process and may also provide a list of qualified historic preservation consultants.
The SHPO has thirty (30) days from receipt of project information to provide written comments regarding the proposed undertaking. The SHPO comment period does not begin until the recipient provides all necessary information the SHPO needs to prepare a response.
While each SHPO website usually contains state contact information and state-specific instructions for initiating the Section 106 process, the basic process requires recipients to provide the following information to the SHPO:
- A written description of the recipient’s project, including the proposed use(s) for the property and if the project will entail visual disturbances, ground disturbance, demolition, new construction, restoration or renovation.
- A map, photographs, and/or drawings clearly demarcating the project’s Area of Potential Effects (APE) (36 CFR § 800.16(d)).
- Descriptions of all known properties that are and/or historic districts that are listed, or eligible for listing, in the National Register, within in the APE, and descriptions and evaluations of all other properties in the APE for National Register-eligibility (regardless of age) based on the National Register criteria. Descriptions should be based on materials such as background research on historic properties, oral history interviews, field surveys and/or investigations, and past planning, research, and studies, and should include information such as a property’s location, the year of its construction and previous ownership (as applicable).
- A description of the NEH-funded project’s potential effects on historic properties within the APE, if any. For a project to have an effect on an historic property, it must have the potential to alter the characteristics that qualify that property for inclusion in or eligibility for the National Register.
- An explanation of why the 36 CFR § 800.5(a)(1) criteria for an adverse effect were found applicable or inapplicable, including any conditions or future actions to avoid, minimize, or mitigate adverse effects. Refer to question 12 for an explanation of an adverse effect.
Please follow the guidance provided on your SHPO’s website. Recipients must concurrently upload to the NEH electronic grants management system (eGMS Reach) all Section 106 information and communications the recipient submits to the SHPO/THPO and other consulting parties.
What if my project is located on Tribal land?
If the project is located on Tribal land, the recipient must notify the NEH through eGMS Reach. In accordance with 36 CFR §800.2(c)(2), NEH will ensure that all consultations with THPOs/Indian Tribes are conducted in a manner respectful of Tribal sovereignty and the government-to-government relationship between the Federal Government and Indian Tribes.
NEH will contact the THPO or Tribe (THPO/Tribe) to determine if the THPO/Tribe will work directly with the recipient, or wishes to retain the formal government-to-government consultation. If the THPO/Tribe wishes to consult directly with NEH, the recipient will submit the Section 106 information to NEH through eGMS Reach and the NEH Federal Preservation Officer will consult directly with the THPO/Tribe.
What if it is determined that there is no historic property affected by the undertaking?
If it is determined that there are no historic properties, or there are historic properties but the project will not affect them, and the SHPO/THPO and other consulting parties (as identified) concur with the finding, then NEH will provide the recipient with language to use in the public notice the recipient will post for comment. If the recipient receives no substantive comments in response to the notice, NEH will conclude the Section 106 review of the project.
What if it is determined the undertaking may have an adverse effect on a historic property?
If there is a finding of adverse effect, NEH and the recipient must continue the consultation process to mitigate the adverse effect. Under these circumstances, NEH will directly manage the consultation process, per the NEH Section 106 delegation letter, to develop a Memorandum of Agreement or Programmatic Agreement between the consulting parties. In cases where the consultation is terminated without an agreement between the consulting parties to resolve adverse effects, the NEH will consult with the ACHP.
What is an “effect”? What is an “adverse effect”?
The term “effect” is defined under 36 CFR §800.16(i) as an “alteration to the characteristics of historic property qualifying it for inclusion in, or eligibility for the National Register.” Consider the project’s impact on the property’s use, character, location, and setting when determining its effect on the historic property. An effect is considered adverse under 36 CFR §800.5(a)(1) when it will endanger those qualities that make the property eligible for inclusion in the National Register. Adverse effects of a project can be direct or indirect. Typical examples include:
- physical destruction or damage;
- alteration inconsistent with the Secretary of the Interior’s Standards for the Treatment of Historic Properties;
- decommissioning of the property;
- change in the character of the property’s use or setting;
- introduction of incompatible visual, atmospheric, or audible elements;
- neglect and deterioration.