While the ACHP has other important roles, it is best known for implementing the federal project review process known as Section 106. Section 106 of the National Historic Preservation Act says that federal agencies are to “take into account” the effects of their undertakings on historic properties and afford the ACHP “a reasonable opportunity to comment with regard to such undertaking.” A 1966 Senate report noted that the law was intended to ensure that federal agencies would not work at cross-purposes with historic preservation goals, and would provide meaningful review of federal or federally-assisted projects impacting historic properties.
The ACHP outlined a process in government-wide procedures requiring a federal agency planning, funding, or licensing a project or program to:
- identify historic and cultural properties that might be affected by the proposed undertaking;
- determine that undertaking’s likely effects on such properties;
- consider alternatives to avoid or lessen any impacts; and
- consult with affected and interested parties to come up with a preservation-friendly solution if possible.
The Section 106 process that was laid out in detail, first in the original 1969 procedures and later in regulations (1979), has evolved considerably. However, essentially the ACHP (or a state historic preservation officer [SHPO] and/or Tribal Historic Preservation Officer [THPO]) is contacted by an agency planning to carry out a project or grant a permit, and provided with background information about the project, for review and “consultation.” At first these “cases” were direct requests for comment from the full ACHP membership. In its first year, the ACHP received submissions on a heating and cooling plant for Georgetown University and siting of a nuclear power plant on the Hudson River near Saratoga Battlefield National Historical Park.
While the ACHP’s involvement did not stop harmful projects, it exposed them to a certain amount of public scrutiny and forced officials and project proponents to document what they were proposing and consider the consequences. These cases raised the public visibility of historic resources listed on the National Register as well as government awareness of preservation values.
Originally Section 106 applied only to properties already listed on the National Register of Historic Places; following a 1971 executive order and 1976 amendments to the NHPA, properties “eligible for” the National Register were included to ensure consideration of all properties worthy of consideration, not just those already recorded.
Through its procedures and regulations, the ACHP also interpreted two parts of Section 106 at an early stage—the “take into account” standard and the ACHP’s reasonable opportunity to comment—to entail requiring consultation among the parties leading (preferably) to agreement on how to proceed. This provided an opportunity for public involvement in such decisions.
Beginning in 2012 as part of preparations to observe the 50th anniversary of the National Historic Preservation Act in 2016, the ACHP has developed a series of brief case studies, “Section 106 Success Stories.” These case examples and other related information continue to be updated and developed regularly, and may be found through the links below and at the ACHP website. The result is that over the last five decades, thousands of significant historic and cultural properties have been protected, public views considered, and steps taken to consider project alternatives and to avoid, minimize, or mitigate adverse effects on those historic assets.
After the original law was passed the role of the states was significantly enhanced, and later augmented by tribal involvement. There was no SHPO role in the original law, only a provision of federal funding to states for conducting comprehensive preservation surveys. It was only later, through Section 106 involvement and NPS state program review, that the SHPO was identified as the key state representative. After further amendments in 1992, THPOs were also recognized a key participating party.
Consultation involves exchange of information and meetings, sometimes onsite (as necessary), among the principal parties. These include the federal agency, non-federal grantees, applicants, or permittees, the relevant State or Tribal Historic Preservation Office, any Indian tribe whose interests may be affected, and other parties with interests in the project (such as local governments, neighborhood associations, or adjacent property owners). Local citizens may be invited to share their views in a variety of ways. The current regulations were issued in 2004, and relevant guidance, training lessons, and other implementing materials have been developed since then.
The ACHP’s approach to the “take into account” standard and the ACHP’s review have been upheld in federal courts and by Congress. The Section 106 process and the ACHP’s implementing regulations have been reviewed by Congress a number of times as part of agency reauthorization and oversight. Federal courts have also upheld Section 106 and the planning and consultation process laid out in the ACHP’s regulations and interpreting guidance. A collection of federal cases involving Section 106 and other related issues was first published in 1985, and then supplemented in 1996 and 2000 by ACHP staff attorneys with funding support from the U.S. Army Environmental Center.
Following issuance of the ACHP’s regulations for Section 106 in 1979, a training course was developed by the ACHP and the first courses were offered in 1981. Training has been offered every year since, with in-house work to improve the material as well as teaching now led by the ACHP’s professional staff. The training suite now includes basic and tailored courses as well as specialized online webinars.
With regard to guidance, in 1982 the ACHP began issuance of supplementary guidance on a variety of topics related to implementation of the planning, review, and consultation process. In the late 1980s more detailed guidance was developed that included “Section 106 Step-by-Step” (1986), “Identification of Historic Properties: A Decisionmaking Guide for Managers” (1988, with the National Park Service), and “Public Participation in Section 106 Review: A Guide for Agency Officials” (1989). Clarifying the concepts of consultation and public participation in the process, the guidance outlined basic principles for involving the public, seeking their views on a federal or federally-assisted action, and taking those views into account in reaching project decisions. A “Citizen’s Guide to Section 106 Review” has gone through several editions; the most recent version was published in 2015 and is available in both English and Spanish editions.