Top Ten Myths about Section 106 of the National Historic Preservation Act

Learning that your project is subject to review under Section 106 of the National Historic Preservation Act (NHPA) can seem daunting. The many myths and misconceptions surrounding the process can trip up the uninitiated and experienced practitioners alike – especially when it’s the very experts who perpetuate the myths.

Here’s a list of ten of the most common myths and misconceptions about Section 106 coordination.

1 - A Section 106 permit is necessary before a project may begin. Section 106 is a process for determining how certain types of actions might affect important places. This process may be a necessary step to obtain other sorts of permits, like those from the U.S. Army Corps of Engineers, but there’s no such thing as a Section 106 “Permit”.  Sorry.

2 - The State Historic Preservation Office (SHPO) is the lead agency responsible for administering Section 106. Section 106 requires federal agencies to consider the impacts of their actions on historic places and to consult with organizations who may be concerned about these historic places. The SHPO is only one of many possible consulting parties.

3 - The SHPO approves projects under Section 106 review. This is perhaps the most common misconception in the entire industry -   The lead federal agency is responsible for completing Section 106 review. The federal agency must consult the SHPO, but it’s ultimately the federal agency that is responsible, not the SHPO.

4 - Section 106 is all about archaeological sites. Section 106 coordination requires that federal agencies consider the effect of their actions on a wide range of important places – described as “Historic Properties” – of which archaeological sites are only one type. Others include historic structures, buildings, objects, or landscapes. A Historic Property can be essentially any place – natural or built – that has historic or cultural meaning.

5 - Section 106 coordination must focus on where a project disturbs the ground. This one goes hand-in-hand with the fixation on archaeological sites mentioned above. Just as the review process must consider a variety of Historic Properties, it must also consider the range of impacts a project may cause – from visual, to auditory, cumulative, and the like.

6 - The SHPO will tell you if there are important historic buildings, archaeological sites, or other important places in your project area. Even if the SHPO had the resources to accomplish this, it is the lead federal agency that is responsible for gathering the information it needs to perform Section 106 review - Though the task is often delegated to the project proponent.

7 - A place has to be listed in, or formally nominated to the National Register of Historic Places to be considered under Section 106.  Section 106 review involves all places that are eligible for listing in the National Register, regardless of whether they have been formally nominated or listed.

8 - It is necessary to find all Historic Properties in the project area to complete Section 106 coordination. Even if it were possible to do this, what Section 106 actually requires is that federal agencies make a good faith effort to identify historic properties to the extent necessary to make decisions about their eligibility for listing in the National Register of Historic Places and how they may be affected.

9 - Section 106 review considers only unique, nationally significant, or rare places. The National Register of Historic Places is designed to include places of national, state, and local significance. “Uniqueness” is not mentioned in the criteria.

10 - Section 106 prohibits impacts to historic properties. It’s perfectly legal to impact or even destroy any historic property, providing the federal agency can show it has made a good faith effort to understand the nature of these effects, and consulted with organizations concerned with the historic property. This may be surprising or even off-putting to some, but it is an important aspect of the law for two important reasons.

Because our modern world needs things like safe roads, access to reliable energy, clean water, and other projects that tend to impact the landscape, we would need to either, (1) be very selective about what was designated as historic, or (2) place historic preservation above all other interests. Neither option is desirable.

As currently structured the Section 106 process provides an opportunity for the important places in our communities to receive some consideration along with the other aspects of project planning.  If Section 106 coordination is required for your project avoid falling victim to some of these most common myths and misconceptions.