A Section 106 Review Under the National Historic Preservation Act (NHPA): How It Works

A Section 106 Review Under the National Historic Preservation Act (NHPA): How It Works

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A Section 106 Review Under the
National Historic Preservation Act (NHPA):
How It Works
Kristina Alexander
Legislative Attorney
May 16, 2012
Congressional Research Service
7-5700
www.crs.gov
R42538
CRS Report for Congress
Pr
epared for Members and Committees of Congress
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A Section 106 Review Under the National Historic Preservation Act: How It Works

Summary
Designed to preserve historic properties, the National Historic Preservation Act (NHPA) has been
faulted by some for delaying implementation of federal projects. Under NHPA, federal agencies
must conduct a collaborative, thoughtful review of a project’s effects on historic properties. The
review must allow for participation by the public and other interested parties. When projects
would have adverse effects on historic properties, NHPA procedures allow interested parties to
negotiate how best to address such effects. In addition to providing procedures to assess project
impacts on historic properties, NHPA establishes programs for the federal government to study
and protect historic properties, including sites, buildings, structures, and objects. The act also
authorizes grants for assisting state and tribal governments with preservation, among other things.
This report will examine the NHPA process for evaluating federal projects’ impacts on historic
properties, which is known as a Section 106 review.
The 112th Congress is considering legislation that would limit NHPA reviews for certain projects,
such as reconstructing highways or bridges destroyed in a disaster (H.R. 7, §3003; H.R. 2112,
§127 [public print version only, not as introduced or enrolled]; H.R. 3347; S. 1389); and
transferring Bureau of Land Management (BLM) land in the Mohave Valley for a shooting range
(S. 526 [introduced version]). Additionally, the American Energy and Infrastructure Jobs Act of
2012 (H.R. 7) would change NHPA by excluding some properties from consideration under
Section 106, and accepting state procedures for highway projects in place of Section 106 when
they are found to be substantially equivalent.
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A Section 106 Review Under the National Historic Preservation Act: How It Works

Contents
Introduction...................................................................................................................................... 1
Background of Historic Preservation Law....................................................................................... 1
Antiquities Act of 1906 ............................................................................................................. 1
The Historic Sites Act of 1935 .................................................................................................. 1
National Historic Preservation Act .................................................................................................. 2
Introductory NHPA Concepts .................................................................................................... 3
Undertaking......................................................................................................................... 3
State Historic Preservation Officer...................................................................................... 4
Advisory Council on Historic Preservation......................................................................... 5
National Register of Historic Places ................................................................................... 5
Consultation ........................................................................................................................ 6
The Section 106 Process............................................................................................................ 6
Commencing the Section 106 Process ................................................................................ 6
Assessing Adverse Effects................................................................................................. 10
Resolving Adverse Effects—Memorandum of Agreement............................................... 11
Exception for Emergencies...................................................................................................... 14
Programmatic Agreements ...................................................................................................... 14
Legislation in the 112th Congress................................................................................................... 15

Appendixes
Appendix. Criteria for Evaluation for the National Register......................................................... 17

Contacts
Author Contact Information........................................................................................................... 18

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A Section 106 Review Under the National Historic Preservation Act: How It Works

Introduction
The National Historic Preservation Act (NHPA) is expansive legislation. Besides creating
programs to study and protect historic places at the federal, state, and tribal levels, NHPA is the
origin of the National Register of Historic Places. It is also a procedural statute, creating a
process, known as a Section 106 review, for federal agencies to consider the impacts their
projects have on historic properties. Accordingly, some see NHPA as legislation that delays
implementation of federal projects. The 112th Congress is considering legislation that would limit
NHPA reviews for certain projects, such as reconstructing highways or bridges destroyed in a
disaster (H.R. 7, §3003; H.R. 2112, §127 [public print version only, not as introduced or
enrolled]; H.R. 3347; S. 1389); and transferring Bureau of Land Management (BLM) land in the
Mohave Valley for a shooting range (S. 526). This report will focus on Section 106 reviews.
Background of Historic Preservation Law
Antiquities Act of 1906
Historic preservation has deep roots in American law. At the beginning of the 20th century,
excavations and thefts were threatening to destroy valuable American artifacts. Recognizing that
generations of Americans had an interest in these artifacts, a Senate Committee on Public Lands
report stated: “their preservation is of great importance.”1 To protect artifacts as well as historic
places, Congress enacted the Antiquities Act of 1906. The Antiquities Act empowered the
President to establish national monuments, authorized scholarly examination of archaeological
ruins,2 and prohibited harming historic or prehistoric ruins or objects of antiquity.3
The Historic Sites Act of 1935
In 1935, Congress enacted a law acknowledging the significance of historic structures and places.
The Historic Sites Act states that “it is a national policy to preserve for public use historic sites,
buildings and objects of national significance for the inspiration and benefit of the people of the
United States.”4 The Historic Sites Act gave broad powers to the Department of the Interior to
advance that policy, including naming National Historic Landmarks. Under the Historic Sites Act,
the Secretary was authorized to do the following:
• secure, collate, and preserve drawings, plans, and photographs of archeological
sites, buildings, and objects;
• survey sites, buildings, and places to determine which possess “exceptional value
as commemorating or illustrating the history of the United States”;

1 S.Rept. 8797 (59th Congress).
2 16 U.S.C. §432.
3 16 U.S.C. §433.
4 Act of August 21, 1935, 49 Stat. 666; 16 U.S.C. §§461 et seq. (the Historic Sites Act).
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• investigate and research sites, buildings, or objects to obtain accurate historical
data;
• acquire for the United States any property deemed “to be satisfactory to the
Secretary”;
• make agreements with states, municipalities, and others to operate sites owned by
the United States;
• restore, reconstruct, and rehabilitate sites;
• erect tablets to mark places and events of historic significance;
• manage sites, buildings, and properties for the benefit of the public, with the
authority to charge fees or issue leases;
• create corporations to manage any sites too burdensome for the Department of
the Interior;
• develop educational programs for the sites; and
• make such rules and regulations necessary to administer the sites.5
The act allowed the United States to acquire any property using eminent domain, provided that
the property was not already administered for the benefit of the public or owned by a religious or
educational institution.6 Congress must make a specific appropriation, however, to enable the
United States to exercise its eminent domain rights under the Historic Sites Act.
National Historic Preservation Act
In 1966, Congress passed the National Historic Preservation Act.7 Broader than its two
predecessors, NHPA covers sites, buildings, structures, and objects. It establishes the National
Register of Historic Places and the procedures by which historic properties are placed on the
register; makes and funds the National Trust for Historic Preservation; creates a grants program
for state historic preservation; designates a program to protect historic properties of Indian tribes;
requires federal agencies to manage and preserve their historic properties; directs a standard to
which U.S. owned historic sites will be maintained; serves as the enabling legislation for the
Convention Concerning the Protection of the World Cultural and Natural Heritage (which
establishes UNESCO8 sites); and establishes a grants program for historic black colleges and
universities. Finally, NHPA creates a process for federal agencies to follow when their projects
may affect a historic property. This process is found in Section 106 of the act, and thus is known
as a Section 106 review.

5 Historic Sites Act of 1935, §§2(a)–(k); 16 U.S.C. §§462(a)–(k).
6 16 U.S.C. §462(d).
7 P.L. 89-665, 80 Stat. 915; 16 U.S.C. §§470 et seq. Because so much of the terminology used in NHPA is based on the
initial act, where appropriate, this report will include those citations as well as citations to the codified version of the
law, as amended, in the U.S. Code.
8 United Nations Educational, Scientific and Cultural Organization.
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NHPA Section 106 requires federal agencies to review the potential impacts of their actions on
historic sites. It is similar to the National Environmental Policy Act (NEPA) in that both are
procedural acts.9 Courts describe NHPA as a “stop, look, and listen” statute that requires the
agency to consider the effects of its project on historic sites.10 Whereas NEPA does not require an
agency to choose an action that would lead to the least environmental harm, NHPA does not
require an agency to halt an action that would harm a historic site. Instead, both laws require
agencies to make informed decisions about actions or projects that would impact the environment
or historic properties.
Under NHPA, the Section 106 process is to be concluded before federal funding is provided or a
federal license issued.11 Starting Section 106 review early in the project development process
ensures that agencies consider “a broad range of alternatives” during the planning process.12
According to a study commissioned by the National Trust for Historic Preservation (NTHP), the
Section 106 process involves “hundreds of federal agencies and offices, thousands of federal
programs, projects, and activities, and many thousands of individuals at all levels of government
and within the private sector.”13
The vast majority of Section 106 reviews result in findings that the proposed project affects no
historic properties. According to the NTHP Report, of the 114,000 eligibility actions reviewed
annually, approximately 85% were found not to involve historic properties.14 Thirteen percent of
the determinations involved historic properties, but the NHPA process found the project had no
adverse effects. For the 2% of properties that were adversely affected, the interested parties
resolved their concerns through Memoranda of Agreement.15
Introductory NHPA Concepts
Undertaking
The Section 106 process is triggered by a federal undertaking. NHPA requires federal agencies
“to take into account the effects of their undertakings on a site, building, structure, or object that
is included in or eligible for inclusion in the National Register of Historic Places.”16 Under the
act, an undertaking is defined as “a project, activity, or program funded in whole or in part under

9 Procedural acts are laws that require a process to be followed rather than mandating a particular result.
10 See Safeguarding the Historic Hanscom Area’s Irreplaceable Resources, Inc. v. Federal Aviation Administration, 651
F.3d 202, 214 (1st Cir. 2011); Business and Residents Alliance of East Harlem v. Jackson, 430 F.3d 584, 591 (2d Cir.
2005); Muckleshoot Indian Tribe v. U.S. Forest Service, 177 F.3d 800, 805 (9th Cir. 1999); Illinois Commerce
Commission v. Interstate Commerce Commission, 848 F.2d 1246, 1261 (D.C. Cir. 1988).
11 16 U.S.C. §470f.
12 36 C.F.R. §800.1(c).
13 Leslie E. Barras, Section 106 of the National Historic Preservation Act: Back to Basics, Summary p. 5 (2010)
(hereinafter NTHP Report), available at http://www.preservationnation.org/information-center/law-and-policy/legal-
resources/additional-resources/Back-to-Basics-Summary.pdf.
14 NTHP Report, Summary p. 3 (2010), based on data from John W. Renaud, U.S. Department of the Interior, National
Park Service, e-mail message to Leslie E. Barras, June 28, 2009. This number represents the number of properties
reviewed for eligibility during a project’s Section 106 review and not the number of federal projects reviewed.
15 Id.
16 P.L. 89-665, §106; 16 U.S.C. §470f.
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the direct or indirect jurisdiction of a Federal agency.”17 In 1992, Congress amended this
definition to give the following examples of types of projects that constitute undertakings:
(A) those carried out by or on behalf of an agency;
(B) those carried out with Federal financial assistance;
(C) those requiring a Federal permit license, or approval; and
(D) those subject to State or local regulation administered pursuant to a delegation or
approval by a Federal agency.18
Courts have clarified that, despite this broad definition, Section 106 applies only to federally
controlled or federally licensed undertakings.19 Thus, projects subject to state or local regulation
do not require a Section 106 review unless the project also involves either federal control or a
federal license.20
State Historic Preservation Officer
The Section 106 review requires federal agencies to consult with the State Historic Preservation
Officer21 (SHPO). The SHPO is the state’s lead authority for historic preservation who “reflects
the interests of the State and its citizens in the preservation of their cultural heritage.”22 When
tribal properties are at stake, federal agencies must consult with the Tribal Historic Preservation
Officer (THPO). The main responsibility of the SHPO/THPO in the Section 106 process is to
review whether the federal agency has adequately identified and addressed an undertaking’s
impacts. Federal agencies must have the SHPO/THPO’s concurrence to advance an undertaking,
or must follow the termination procedure described later in this report. In addition, NHPA charges
the SHPO with establishing a state historic preservation program, which is described in detail in
Section 101 of the act.23

17 P.L. 89-665, §301; 16 U.S.C. §470w(7); 36 C.F.R. §800.16(y).
18 Id. See P.L. 102-575, §4019 for amendment.
19 See Business and Residents Alliance of East Harlem v. Jackson, 430 F.3d 584 (2d Cir. 2005); National Mining
Association v. Fowler, 324 F.3d 752 (D.C. Cir. 2003); Sheridan Kalorama Historical Association v. Christopher, 49
F.3d 750 (D.C. Cir. 1995).
20 See Business and Residents Alliance of East Harlem v. Jackson, 430 F.3d 584 (2d Cir. 2003) (holding that $5 million
in federal funding did not make block grant a federal undertaking under NHPA because the federal agencies did not
have jurisdiction or control over the project).
21 NHPA defines SHPO as the State Historic Preservation Officer, while the National Park Service uses the term as
meaning the State Historic Preservation Office. See NPS, National Register of Historic Places Fundamentals, at
http://www.nps.gov/nr/national_register_fundamentals.htm. This distinction does not appear to be material.
22 36 C.F.R. §800.2(c)(1).
23 P.L. 89-665, §101; 16 U.S.C. §470a(b). State is defined for the purposes of a SHPO as the 50 states, the District of
Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, American Samoa, and the Commonwealth of
the Northern Mariana Islands. See 16 U.S.C. §470w(2).
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Advisory Council on Historic Preservation
NHPA created the Advisory Council on Historic Preservation (ACHP or the Council), which is an
independent agency consisting of federal, state, and tribal governments members, as well as
experts in historic preservation and members of the general public.24 The ACHP has many
responsibilities,25 some of which relate to the Section 106 process. NHPA authorizes the Council
to promulgate rules on the Section 106 process,26 including when projects are exempt from
review.27 While all agencies follow ACHP regulations, agencies may have additional regulations
that are more specific to their missions. The law requires that the ACHP have the opportunity to
comment on undertakings,28 but does not require it to comment. According to the NTHP Report,
formal comments by the Council are issued in less than 0.01% of all projects.29 Where the federal
agency and the SHPO or any consulting party dispute the historicity of a site or the effects of an
undertaking, the agency may refer the matter to the ACHP for review.30
To facilitate project review, federal agencies provide funding for almost one-third of the ACHP’s
review staff. The agencies providing this funding are (1) Natural Resources Conservation Service
of the Department of Agriculture; (2) Department of Veterans Affairs; (3) Department of the
Army; (4) Department of Energy; (5) Bureau of Land Management of the Department of the
Interior; (6) Federal Highway Administration of the Department of Transportation; and (7) the
General Services Administration.31 While such arrangements may aid efficiency by increasing the
number of reviewers, some may worry that they could create conflicts of interest between the
reviewer and the funding agencies, potentially affecting the integrity of the process.
National Register of Historic Places
The National Register of Historic Places (sometimes known as the National Register) is a list of
“districts, sites, buildings, structures, and objects significant in American history, architecture,
archeology, engineering, and culture.”32 The National Park Service (NPS) maintains the National
Register, with the Keeper of the National Register as the official custodian. Properties may be
placed on the register in five different ways:
• acts of Congress or executive orders creating historic areas administered by NPS;
• properties declared by the Secretary of the Interior to be of national significance
and designated as a National Historic Landmark;
• properties nominated by SHPOs and approved by NPS;

24 P.L. 89-665, §201; 16 U.S.C. §470i.
25 See P.L. 89-665, §202; 16 U.S.C. §470j.
26 P.L. 89-665, §211; 16 U.S.C. §470s.
27 See 36 C.F.R. part 800.
28 P.L. 89-665, §106; 16 U.S.C. §470f.
29 NTHP Report, p. 3.
30 36 C.F.R. §§800.4(d)(1)(ii), 800.5(c)(2).
31 Ralston Cox, Director, Office of Administration, Advisory Council on Historic Preservation, via e-mail to the author
(April 23, 2012).
32 P.L. 89-665, §101; 16 U.S.C. §470a(a)(1)(A).
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• properties nominated by any person or local government in a state without an
SHPO and approved by NPS; and
• federal properties nominated by federal agencies via the Federal Preservation
Officer (http://www.achp.gov/fpo.html) and approved by NPS.33
NPS established the criteria for eligible properties.34 In general, eligible property must be at least
50 years old, have historic integrity, and have distinctive or significant characteristics of its era.
The full criteria are provided in the Appendix to this report.
Consultation
Consultation is the backbone of the Section 106 process. It is an interactive process in which an
agency evaluates an undertaking’s effects on a historic site with input from consulting parties.
Consulting parties include the SHPO; the THPO; applicants for the relevant license or permit;
representatives of local government; affected Indian tribes or Native Hawaiian organizations; and
parties with a demonstrated interest in the undertaking.35 Consultation is a process where all
parties share information so that a well-informed decision regarding the project may be made. It
ends with an agreement among the interested parties, or when terminated by the agency, SHPO,
or THPO. The Council assumes a role in completing the Section 106 process when termination
occurs.36 Additionally, the agency is required to seek the views of the public during a Section 106
review. According to the regulations, “the views of the public are essential to informed Federal
decision-making in the section 106 process. The agency official shall seek and consider the views
of the public.”37
The Section 106 Process
Commencing the Section 106 Process
When a federal agency finds its project is an undertaking under NHPA, it begins the Section 106
review process by identifying the consulting parties, the area of potential effects, and the historic
properties within that area.
Identifying Consulting Parties
To begin consultation, the agency must identify the appropriate consulting parties, which are
described within 36 C.F.R. Section 800.2. The SHPO/THPO is a key party, meaning an agency
cannot continue consultation without the SHPO/THPO’s participation absent the ACHP’s
involvement.38 Other parties entitled to participate are the applicant, tribes,39 and local

33 36 C.F.R. §60.1(b).
34 36 C.F.R. §60.4.
35 36 C.F.R. §800.2(c). While the agency may continue consultation if Indian tribes and Native Hawaiian organizations
that are invited choose not to participate, if a native group submits a written request to be a consulting party, it must be
made one. 36 C.F.R. §800.2(f)(2).
36 For more on termination, see “No Effects on Historic Properties Found—Termination,” below.
37 36 C.F.R. §800.2(d).
38 36 C.F.R. §800.22(c)(1). If the SHPO/THPO refuses to participate or if that office does not exist, the regulations
(continued...)
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government officials.40 The agency must invite these potential participants, although the
consultation may proceed without their input.41 Additionally, members of the public with an
interest in the project may request to participate in the consultation and are allowed at the
discretion of the agency in further consultation with the SHPO/THPO.42 Under the regulations, a
member of the public has two ways to demonstrate an interest in the project: (1) a legal or
economic relationship to the undertaking or affected properties; or (2) concern with the
undertaking’s effects on historic properties.43 For interested parties, becoming a consulting party
increases their influence over the Section 106 process, allowing them to comment on proposals
early in the process, and possibly conferring standing to enforce any agreement reached.44
Identifying the Area of Potential Effects
The next step is for the agency to identify the area that may be affected by the project, known as
the area of potential effects (sometimes abbreviated as APE). The regulations define area of
potential effects as “the geographic area or areas within which an undertaking may directly or
indirectly cause alterations in the character or use of historic properties.”45 Identification of the
APE is done in consultation with the SHPO.46 This initial determination is significant, as it
provides the scope of the Section 106 review. Only those properties within the APE are evaluated
for project impacts.
The size of the APE is related to the federal undertaking, and not to a project as a whole, although
sometimes that distinction is blurry. According to the regulations, the area of potential effects “is
influenced by the scale and nature of an undertaking and may be different for different kinds of
effects caused by the undertaking.”47

(...continued)
allow consultation to continue via the ACHP. 36 C.F.R. §800.3(c)(4).
39 The consulting relationship with tribes changes depending on whether the project is on tribal property (36 C.F.R.
§800.2(c)(2)(i)) or whether the property is culturally significant (36 C.F.R. §800.2(c)(2)(ii)). The regulations require
that the agency “shall make a reasonable and good faith effort to identify” Indian tribes and Native Hawaiian
organizations. 36 C.F.R. §800.3(f)(1).
40 36 C.F.R. §§800.3(f)(1)-(2).
41 The regulations require that the agency “shall invite any local governments” (36 C.F.R. §800.3(f)(1)), and “make a
reasonable and good faith effort to identify [tribal groups].” 36 C.F.R. §800.3(f)(2). See City of Oxford v. Federal
Aviation Administration, 428 F.3d 1346, 1357 (11th Cir. 2005) (finding that NHPA “simply required the [agency] to
identify consulting parties and invite them to participate.... The regulations do not speak to the form and content of
written invitations to meetings with consulting parties”).
42 36 C.F.R. §800.3(f)(3).
43 36 C.F.R. §800.2(c)(5).
44 Courts have held that the ability of an interested party to challenge compliance with a Section 106 agreement
depends on the phrasing of the agreement. See Coalition of 9/11 Families, Inc. v. Rampe, No. 04-civ-6941, 2005 WL
323747 (S.D.N.Y. Feb. 8, 2005) (holding that consulting party status for interested parties could create standing to
enforce a Section 106 agreement only where that agreement provided third-party rights); Tyler v. Cuomo, 236 F.3d
1124, 1135 (9th Cir. 2000) (non-signatories to Section 106 agreement had standing to enforce only those provisions that
granted members of the public the right to be heard).
45 36 C.F.R. §800.16(d).
46 36 C.F.R. §800.4(a)(1).
47 36 C.F.R. §800.16(d).
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In one case related to the size of the APE, the Fourth Circuit criticized the Corps of Engineers for
limiting its review of a fill permit to only the area where the fill was used, rather than considering
how the improved road allowed by the permit would affect eligible property.48 Although the court
did not use the term area of potential effects, it noted that NHPA regulations and the Corps’
regulations required consideration of effects outside the permit area.49
In contrast, in the case of a 2-mile state road project that would require demolition of a historic
home listed in the National Register, the court found that the federal undertaking was limited to
Corps of Engineers’ permits for two stream crossings. The court rejected arguments that those
permits dictated the route of the project and that separating the permits from the rest would be an
illegal segmentation.50 The court held that the permit did not affect the historic home and allowed
the Corps to limit the APE to the right of way approaching the stream and the crossing.51 Thus,
any effects outside that area did not need to be considered in the Section 106 process. The
homeowners filed an appeal.
In another case, a court upheld a variable APE,52 meaning different areas were used for different
impacts from the undertaking. The undertaking was a federal highway project, and the agency
measured effects in areas between 150 feet to 500 feet from the edge of the project roadway,
depending on the effect. For example, where the roadway was not visible from a property, the
APE was smaller. The court found this practice consistent with NHPA.
Identifying Historic Properties
Next, the agency identifies any historic properties in the APE in consultation with the SHPO.
Historic properties include those on the National Register of Historic Places, and those eligible to
be listed on the register.53 While the register should enable the agency to find listed properties,
eligible properties may be harder to identify. Typically, agencies ask the SHPO to identify such
properties. The agency may also consult other parties with regard to such properties.
Simply because something is old, does not mean it is historic under the act. To be eligible for
listing on the National Register, and thus identified as a historic property under NHPA, a property
must also be linked to history via association to significant events or persons, by possessing
distinct characteristics of an era, or by having integrity of location, materials, workmanship, or
association.54 The Council describes the issue of integrity as whether the site “look[s] much the
way as it did in the past.”55 Association means the property is linked to a historic event or has a
culturally significant heritage. Accordingly, a court found that an agency failed to consider the
historicity of a hundreds-year-old oak tree when identifying historic properties.56 However, once

48 Pye v. United States, 269 F.3d 459 (4th Cir. 2001).
49 Id. at 469.
50 McGehee v. U.S. Army Corps of Engineers, No. 3:110CV-160, 2011 WL 2009969 (W.D. Ky. May 23, 2011).
51 Id. at *4.
52 Valley Community Preservation Commission v. Mineta, 373 F.3d 1078 (10th Cir. 2004).
53 P.L. 89-665, §106; 16 U.S.C. §470f. The phrase “or eligible for inclusion in” was amended to the act in 1976. P.L.
94-422. Prior to that, only listed properties were covered.
54 36 C.F.R. §60.4. The entire listing criteria are provided in the Appendix.
55 See ACHP, Protecting Historic Properties: A Citizen’s Guide to Section 106 Review, p. 6, available at
http://www.achp.gov/docs/CitizenGuide.pdf.
56 Hatmaker v. Georgia Department of Transportation, 973 F. Supp. 1047 (M.D. Ga. 1995).
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the historic review was completed, the court upheld the finding that the tree lacked associations of
historic significance and was not eligible for listing.57
Additionally, something historic is not eligible for protection unless it can be identified with some
specificity. For example, a court held that a site was not eligible for the National Register despite
being a culturally significant path of retreat for the Kiks.adi of Alaska because there was no
consensus on the route.58 The court stated that despite extensive efforts of the agency to identify
the site, showing “a general unbounded and imprecisely located area has important cultural
significance is not enough” for NHPA eligibility.59
Finally, when something is historically significant, the age does not matter. Consider the historic
status of the ruins of the World Trade Center towers, for which an agency conducted a Section
106 review.60
While the NHPA regulations require agencies to make a “reasonable and good faith effort” to
identify historic properties,61 what constitutes a “reasonable and good faith effort” is subject to
debate. Questions regarding whether an agency made sufficient efforts to identify eligible
properties frequently arise in the context of identifying cultural resources of Indian tribes, due to
tribal concerns about revealing sacred sites. The NHPA regulations caution agencies regarding
this potential problem, advising that “an Indian tribe or Native Hawaiian organization may be
reluctant to divulge specific information regarding the location, nature, and activities associated
with such sites.”62
At least two different federal courts of appeals have reviewed claims that federal agencies failed
to make reasonable efforts to identify tribal cultural properties. In one case, Pueblo of Sandia v.
United States,63 the agency mailed letters to identified Indian tribes and invited them to meetings.
The Indian tribes did not provide information regarding location and historicity of traditional
cultural sites, and the agency did not include any sites in the APE. The Tenth Circuit found that
the agency did not act reasonably because it had information from reliable sources that culturally
significant sites were in the area.64 Additionally, the court found that the agency did not act in
good faith because it had withheld documentation from the SHPO until after the SHPO issued its
concurrence.
In another case, the Ninth Circuit held that the agency had acted in compliance with NHPA. The
court noted that the agency did not withhold information from the SHPO, made continued efforts
to obtain information from the Indian tribe, and conducted research on its own to identify cultural
properties.65 A district court case compared the actions of the agency to those in Pueblo of Sandia,

57 Hatmaker v. Georgia Department of Transportation, 973 F. Supp. 1058 (M.D. Ga. 1997).
58 Hoonah Indian Association v. Morrison, 170 F.3d 1223 (9th Cir. 1999).
59 Id. at 1232.
60 Coalition of 9/11 Families, Inc. v. Rampe, No. 04-civ-6941, 2005 WL 323747 (S.D.N.Y. Feb. 8, 2005).
61 36 C.F.R. §800.4(b)(1). ACHP has guidance for reasonable and good faith efforts. ACHP, Meeting the “Reasonable
and Good Faith” Identification Standard in Section 106 Review (Nov. 10, 2011), available at http://www.achp.gov/
rgfe_guidance.pdf.
62 36 C.F.R. §800.4(a)(4).
63 50 F.3d 856 (10th Cir. 1995).
64 Id. at 860-61.
65 Muckleshoot Indian Tribe v. U.S. Forest Service, 177 F.3d 800, 807 (9th Cir. 1999).
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and found that, in the case before it, the agency had acted reasonably and in good faith to identify
traditional cultural properties.66 The court held that by conducting interviews and field studies in
addition to requesting information from the tribes, the agency had met its NHPA obligations for
identifying properties.67
Assessing Adverse Effects
Once the agency has identified the affected historic properties, the agency determines whether the
undertaking adversely affects those properties.68 In making this determination, the agency
consults with the SHPO, as well as with any tribal group that attaches religious and cultural
significance to the property.69 Under the NHPA regulations, alterations in “any of the
characteristics of an historic property that qualify the property for inclusion in the National
Register” constitute adverse effects.70 In determining whether the project has an adverse effect,
the agency considers the integrity of the following aspects of the property:
• location,
• design,
• setting,
• materials,
• workmanship,
• feeling, or
• association.71
NHPA regulations clarify that both direct and indirect effects of the project must be considered,72
as well as reasonably foreseeable effects that may occur later in time, at some distance, or are
cumulative.73 A Memorandum of Agreement resolves how an agency will address adverse effects
(see below).
Simply because an undertaking will occur in an area with historic properties does not mean that
those properties will be adversely affected. For example, a plan by the National Park Service to
kill deer in Gettysburg National Military Park was held not to affect the contemplative nature of
the park.74 Another court rejected the claim that construction of a hotel and parking garage in the
view of a historic district in Philadelphia adversely affected the historic area.75 A revised flight

66 Pit River Tribe v. Bureau of Land Management, 306 F. Supp. 2d 929, 944-45 (E.D. Cal. 2004).
67 Id.
68 P.L. 89-665, §106; 16 U.S.C. §470f.
69 36 C.F.R. §800.5(a).
70 36 C.F.R. §800.5(a)(1).
71 Id.
72 36 C.F.R. §800.16(d).
73 36 C.F.R. §800.5(a)(1).
74 Davis v. Latschar, 202 F.3d 359 (D.C. Cir. 2000) (plaintiffs argued that gunfire would alter the historic nature of the
battlefield).
75 Society Hill Towers Owners’ Association v. Rendell, 210 F.3d 168 (3d Cir. 2000).
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plan that would bring aircraft over culturally significant tribal property was held not to affect
historic properties, not because of a lack of eligible sites, but because there were no effects.76
No Effects on Historic Properties Found—Termination
If no historic properties will be affected by the undertaking (either because no properties are
present or because properties will not be affected), the agency terminates the Section 106 process.
However, the agency does not have unilateral authority over when the process ends.77 The
regulations require the agency to document its decision to the SHPO/THPO and notify all
consulting parties of the decision and the availability of the documentation.78 If the SHPO/THPO
does not comment within 30 days, the consultation is terminated.79
If the SHPO objects to the finding, the agency must attempt to resolve the conflict, either directly
with the SHPO, or by advancing the dispute to the ACHP.80 The Council has 30 days to act. If it
does nothing, the consultation is terminated. If the Council objects to the agency’s finding of no
effect on historic properties, the Council must provide its opinion to the agency.81 However, the
ACHP’s opinion is not binding on the agency.82 While the agency is the ultimate decision maker,
the agency’s decision to terminate consultation must be supported by the documentation. For
example, in a case where the agency ignored the contrary opinions of the ACHP and the Keeper
of the National Register to find that no historic properties would be affected, the court held the
agency had violated NHPA.83 If the agency affirms the finding of no effect, the Section 106
process ends. Otherwise, the agency and consulting parties continue consultation based on the
revised opinion.
Resolving Adverse Effects—Memorandum of Agreement
When historic properties are adversely affected, the agency and the SHPO/THPO enter into a
binding agreement known as a Memorandum of Agreement (MOA). The MOA “govern[s] the
undertaking and all of its parts,” including how the agency will address adverse effects.84
Additional parties that have participated in the consultation, such as the Council, also may sign,
and acquire rights to enforce or alter the agreement.85 The agency provides the MOA and
documentation to the Council.

76 Morongo Band of Mission Indians v. Federal Aviation Administration, 161 F.3d 569 (9th Cir. 1998).
77 See Sayler Park Village Council v. U.S. Army Corps of Engineers, 2002 WL 32191511 (S.D. Ohio Dec. 30, 2002)
(holding that the Corps improperly terminated consultation over the objections of the SHPOs).
78 36 C.F.R. §800.4(d)(1).
79 36 C.F.R. §800.4(d)(1)(i)
80 36 C.F.R. §800.4(d)(1)(ii).
81 36 C.F.R. §800.4(d)(1)(iv)(A).
82 See Vieux Carre Property Owners, Residents and Associates, Inc. v. Brown, 948 F.2d 1436, 1447 (5th Cir. 1991);
Hough v. Marsh, 557 F. Supp. 74 (D. Mass. 1982).
83 Friends of the Atglen-Susquehanna Trail, Inc. v. Surface Transportation Board, 252 F.3d 246 (3d Cir. 2001).
84 36 C.F.R. §800.6(c)(1).
85 36 C.F.R. §800.6(c)(2). See Don't Tear It Down v. Penn Ave. Development Corp., 642 F.2d 527, 531 (D.C. Cir.
1998).
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An agency must consider mitigating adverse effects of an undertaking.86 There is no requirement,
however, that an undertaking avoid harming historic properties. Instead, the agency is directed to
consult “to develop and evaluate alternatives or modifications to the undertaking that could avoid,
minimize, or mitigate adverse effects on historic properties.”87
For example, when an agency knew its undertaking would damage a historic farm, it planned
mitigation to limit the harm and restore the damaged areas. The court held that the agency had
met its NHPA obligations.88 In the case of a large land management project that would affect
areas with religious and culturally significant places, the mitigation would avoid those features
that made the site eligible for listing but not avoid the area altogether. The court upheld that
approach, stating “NHPA requires that the [agency] protect only against adverse effects on the
features of these areas that make them eligible for the National Register.”89 Similarly, where
timber harvesting would adversely affect a culturally significant ceremonial district of the Karuk
Tribe, the agency developed a mitigation plan that would avoid logging in the sensitive areas.90
The court upheld the agency plan for mitigation, but suspended the timber harvest until the
logging company could be made aware of the avoidance plan.91
Adequate mitigation may include documenting a site that will be demolished. The plan to
mitigate effects of removing remnants of the World Trade Center towers following the attacks of
September 11, 2001, involved photographing the site. The court upheld this method of mitigating
“potentially adverse effects to structural remnants.”92 However, where other mitigation would
serve, documentation may not be adequate. In the case of a timber project that would adversely
affect a culturally significant trail, the appellate court rejected the agency plan to mitigate the
effects by mapping the trail and photographing significant points.93 The court suggested that the
project could be moved to avoid the trail.94
The agency is required to provide adequate documentation of its findings regarding adverse
effects, make the documentation available to the public, and provide an opportunity for
comment.95 Specific information must be included whether adverse effects are found or not:
1. A description of the undertaking, specifying the federal involvement, and its area
of potential effects, including photographs, maps, and drawings, as necessary;
2. A description of the steps taken to identify historic properties;
3. A description of the affected historic properties, including information on the
characteristics that qualify them for the National Register;
4. A description of the undertaking’s effects on historic properties;

86 36 C.F.R. §800.6(a).
87 36 C.F.R. §800.6(c).
88 Northwest Bypass Group v. U.S. Army Corps of Engineers, 453 F. Supp. 2d 333 (D.N.H. 2006).
89 Te-Moak Tribe of Western Shoshone of Nevada v. U.S. Department of the Interior, 608 F.3d 592, 611 (9th Cir.
2010).
90 Karuk Tribe v. Kelley, No. 10-02039, 2011 WL 2444668 (N.D. Cal. June 13, 2011).
91 Id. at *14.
92 Coalition of 9/11 Families, Inc. v. Rampe, No. 04-civ-6941, 2005 WL 323747 (S.D.N.Y. Feb. 8, 2005).
93 Muckleshoot Indian Tribe v. U.S. Forest Service, 177 F.3d 800, 809 (9th Cir. 1999).
94 Id.
95 36 C.F.R. §800.6(a)(4).
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5. An explanation of why the criteria of adverse effect were found applicable or
inapplicable, including any conditions or future actions to avoid, minimize, or
mitigate adverse effects; and
6. Copies or summaries of any views provided by consulting parties and the
public.96
The alternative to reaching a MOA is terminating consultation, which is similar to the termination
process at the stage of finding no adverse effects.97 The agency must make its termination
decision and supporting documents available to the public and all consulting parties.98 While the
agency is the ultimate decision maker, it must consider the comments of the Council and all
consulting parties. More time is provided for those comments than for termination at the earlier
stage (45 days rather than 30), and the head of the agency cannot delegate the decision.99
For example, the Secretary of the Interior terminated consultation for a wind turbine project off
the coast of Cape Cod, MA, when no MOA could be reached. In this case, the indirect effects to
viewsheds of historic properties and culturally significant properties could not be mitigated to the
satisfaction of the affected parties.100 In the notice of termination, the Secretary of the Interior
discussed all of the factors supporting the termination, such as the dates of consultation meetings;
the impacts to each property affected; mitigation that the agency would undertake; and mitigation
measures that were proposed but would not be taken. The Secretary of the Interior’s notice of
termination referenced the ACHP statement that the agency “had done the work necessary” and
that “termination would be appropriate” unless the affected Indian tribes agreed to mitigation.101
Effects on National Historic Landmarks
Different standards apply when the undertaking is affecting a historic landmark. Historic
landmarks are designated by the Department of the Interior under the Historic Sites Act (see
above) and have a higher standard for protection than other historic properties. The agency must
“to the maximum extent possible, undertake such planning and actions as may be necessary to
minimize harm to such landmark [that may be directly and adversely affected].”102 Additionally,
where adverse effects are found, the agency is required to request the participation of the ACHP
and the Secretary of the Interior.103 By providing for the Secretary of the Interior’s participation,
the National Park Service becomes a consulting party, which some argue may lead to stronger
advocacy on behalf of preservation in the case of historic landmarks. Otherwise, the consultation
steps outlined above apply.

96 36 C.F.R. §800.11(e).
97 36 C.F.R. §800.7.
98 36 C.F.R. §800.7(c)(4).
99 36 C.F.R. §800.7(c).
100 Department of the Interior, Termination of NHPA Section 106 Consultation for the Cape Wind Energy Project
(undated), available at http://www.boemre.gov/offshore/renewableenergy/PDFs/CapeWind/Tripathi/
Appendix_2_CW106.pdf.
101 Id. at 6.
102 16 U.S.C. §470h-2(j). 36 C.F.R. §800.10(a).
103 36 C.F.R. §§800.10(b)-(c).
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Exception for Emergencies
NHPA provides an exception to the Section 106 requirement in certain emergency situations,
authorizing the Secretary of the Interior to issue regulations waiving all or part of the process “in
the event of a major natural disaster or an imminent threat to the national security.”104 Under 36
C.F.R. Section 800.12 of the regulations, when the President, a tribal government, or a governor
declares a disaster or emergency, an agency may follow its own established procedures, follow
those under Section 800.14 regarding programmatic agreements (discussed below), or follow
Section 800.12.105
If the agency has not established alternative procedures or a programmatic agreement, Section
800.12 waives consultation for immediate rescue and salvage activities, and provides an
abbreviated consultation for any undertakings that will be implemented within 30 days of the
declaration of the emergency or disaster.106 The agency should notify the Council, the
SHPO/THPO, and any affected tribal group of the proposed undertaking.107 Those groups have
seven days to comment. No other Section 106 requirements apply. If there is not time for even
that procedure, the regulations allow agencies to invite comment from the Council, the
SHPO/THPO, and tribal groups in the time available.108
Programmatic Agreements
In some cases, agencies may establish Programmatic Agreements to serve as the Section 106
process for a type of project, thus promoting efficiency by avoiding duplicate consultations. The
agreements may also be established for emergency circumstances in lieu of following Section
800.12. A Programmatic Agreement (PA) establishes procedures and standards for specific
circumstances. Where a PA is in place, the NHPA regulations do not have to be followed. Some
examples of PAs are:
• Bureau of Land Management—Section 106 reviews;
• National Park Service—Section 106 reviews;
• Federal Communication Commission—Section 106 reviews;
• Forest Service—Rangeland Management Activities on National Forest System
Lands; and
• Environmental Protection Agency and others—Emergency Response under the
National Oil and Hazardous Substance Spill Pollution Contingency Plan.109
Under the regulations, a PA may be used for routine management activities and for similar,
repetitive projects.110 The agreements may also be used when the effects of an undertaking cannot

104 16 U.S.C. §470h-2(j).
105 36 C.F.R. §800.12(b).
106 36 C.F.R. §800.13(d).
107 36 C.F.R. §800.12(b)(2).
108 Id.
109 See ACHP, Nationwide Programmatic Agreements in Effect as of June 2007, available at http://www.achp.gov/
palist.html.
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be determined prior to the project’s start, or when a non-federal actor has the major decision
making responsibilities.111
In developing the PA, the agency will consult with the SHPO/THPO, Indian tribes, and members
of the public.112 This makes national PAs difficult—over 500 Indian tribes must be consulted. For
national or multi-state PAs, the National Conference of SHPOs may be consulted as well.
Legislation in the 112th Congress
The 112th Congress is considering legislation that would limit NHPA reviews for certain projects,
such as reconstructing highways or bridges destroyed in a disaster (H.R. 7, §3003; H.R. 2112,
§127 [public print version only, not as introduced or enrolled]; H.R. 3347; S. 1389); and
transferring Bureau of Land Management (BLM) land in the Mohave Valley for a shooting range
(S. 526 [introduced version]). Additionally, the American Energy and Infrastructure Jobs Act of
2012 (H.R. 7) would change NHPA by excluding some properties from consideration under
Section 106, and accepting state procedures for highway projects in place of Section 106 when
they are found to be substantially equivalent.
The highway bills—H.R. 7, Section 3003; H.R. 2112, Section 127; H.R. 3347; and S. 1389—
would allow reconstruction of a road, highway, or bridge destroyed in a natural disaster without
having to undergo a Section 106 review (or review under several other laws). Similarly, H.R. 7,
Section 22911, exempts reconstruction of railroad, tracks, bridges, and other facilities destroyed
in a disaster from NHPA review. Since the regulations already provide for a much-abbreviated
review process for projects that must be executed within 30 days following a disaster, these bills
would appear to expedite only those undertakings having a longer planning schedule. Some may
suggest that since planning was going to take longer, there would be time to conduct a Section
106 review.
As introduced, S. 526, which would transfer BLM land for a shooting range, included language to
exclude the transfer from Section 106 review.113 However, the reported version struck that
language and instead ensured that the conveyance would include “appropriate conditions to
address the impact of the shooting range on cultural resources.”114
H.R. 7, the American Energy and Infrastructure Jobs Act of 2012, includes language to change
the federal aid highway construction process. Two sections of the bill would exclude some types
of property from consideration under Section 106. Section 3010 of H.R. 7 would eliminate
consideration of adverse effects on properties being sold or leased unless they were listed on the
National Register. Under this bill, Section 106 reviews for federal aid highway projects involving
selling or leasing properties would not have to consider the effects on properties eligible for
listing. This would speed the review process for certain highway projects by eliminating the

(...continued)
110 36 C.F.R. §800.14(b)(1).
111 36 C.F.R. §800.14(b)(1).
112 36 C.F.R. §800.14(b).
113 S. 526.IS, §4(b).
114 S. 526.RS, §3.
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search and evaluation of prospective National Register places, but may also lead to the
destruction of historic properties, especially in those areas without active local preservation
groups. H.R. 7, Section 22907, would exempt railroads subject to the Federal Railway
Administration’s safety laws from being considered historic under Section 106, except if the
railway were already operated as a historic site. Individual elements of a railroad, such as depots
and bridges, may still be considered historic at the discretion of the Secretary of Transportation
with input from the Secretary of the Interior.
Under H.R. 7, Section 3015, if the Secretary of Transportation found a state program were
substantially equivalent to NHPA, the project could be evaluated under such state laws instead of
NHPA. H.R. 7, Section 3007, would establish that if a MOA regarding a historic property were in
place under Section 106, no additional MOA would be required. Rather than amending NHPA,
Section 3007 would change the Federal Highway Administration’s obligations under 23 U.S.C.
Section 138 to protect parks and historic places.115

115 Those obligations are required under what is known as Section 4(f) (from P.L. 89-670, §4(f)).
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Appendix. Criteria for Evaluation for the
National Register
Source: 36 C.F.R. Section 60.4.
National Register Criteria for Evaluation
The quality of significance in American history, architecture, archeology, engineering, and culture
is present in districts, sites, buildings, structures, and objects that possess integrity of location,
design, setting, materials, workmanship, feeling, and association, and:
(a) That are associated with events that have made a significant contribution to the broad
patterns of our history; or
(b) That are associated with the lives of significant persons in or past; or
(c) That embody the distinctive characteristics of a type, period, or method of construction, or
that represent the work of a master, or that possess high artistic values, or that represent a
significant and distinguishable entity whose components may lack individual distinction; or
(d) That have yielded or may be likely to yield, information important in history or prehistory.
Criteria Considerations
Ordinarily cemeteries, birthplaces, graves of historical figures, properties owned by religious
institutions or used for religious purposes, structures that have been moved from their original
locations, reconstructed historic buildings, properties primarily commemorative in nature, and
properties that have achieved significance within the past 50 years shall not be considered eligible
for the National Register. However, such properties will qualify if they are integral parts of
districts that do meet the criteria or if they fall within the following categories:
(a) A religious property deriving primary significance from architectural or artistic distinction
or historical importance; or
(b) A building or structure removed from its original location but which is primarily
significant for architectural value, or which is the surviving structure most importantly
associated with a historic person or event; or
(c) A birthplace or grave of a historical figure of outstanding importance if there is no
appropriate site or building associated with his or her productive life; or
(d) A cemetery that derives its primary importance from graves of persons of transcendent
importance, from age, from distinctive design features, or from association with historic
events; or
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(e) A reconstructed building when accurately executed in a suitable environment and
presented in a dignified manner as part of a restoration master plan, and when no other
building or structure with the same association has survived; or
(f) A property primarily commemorative in intent if design, age, tradition, or symbolic value
has invested it with its own exceptional significance; or
(g) A property achieving significance within the past 50 years if it is of exceptional
importance.
This exception is described further in NPS “How To” #2, entitled “How to Evaluate and
Nominate Potential National Register Properties That Have Achieved Significance Within the
Last 50 Years” which is available from the National Register of Historic Places Division, National
Park Service, United States Department of the Interior, Washington, DC 20240.

Author Contact Information

Kristina Alexander

Legislative Attorney
kalexander@crs.loc.gov, 7-8597

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