The Section 106 Process

The purpose of the "Section 106 Process" is to assure that no unnecessary harm comes to historic properties as a result of federal actions.  It is also considered regulatory archaeology. Under Section 106 of the National Historic Preservation Act of 1966 (as amended), federal agencies are required to take into account the effect of their proposed undertakings on properties listed in or eligible for inclusion in the National Register of Historic Places. The federal agencies must allow the Advisory Council on Historic Preservation a reasonable opportunity to comment before proceeding with the project. The federal agencies are required to do this work before the expenditure of federal funds or the issuance of any licenses or permits.  See the User's Guide on the Advisory Council on Historic Preservation web site.

The Advisory Council on Historic Preservation has established procedures for compliance with Section 106. These regulations are presented in 36 CFR Part 800. Once a federal agency has identified that it has an undertaking, the agency must define the undertaking's Area of Potential Effect. The Area of Potential Effect must include areas directly or indirectly impacted by the action. For example, the Area of Potential Effect for a natural gas pipeline would include not only the actual pipeline trench, but also includes the construction right-of-way, compressor stations, meter stations, staging areas, storage yards, access roads, and other ancillary facilities.

The agency needs to consider the full range of effects that might occur. For example, a construction project might cause vibration impacts to historical archaeological sites that contain structural remains. Note, too, that the Area of Potential Effect might be different for aboveground resources subject to visual or audible effects. For example, Effigy Mounds National Monument, with its setting high atop the bluffs, provides a spectacular view into the Mississippi River valley. Undertakings along the river can impact the view from Effigy Mounds; thus, agencies planning undertakings in the valley might need to include this property in the Area of Potential Effect.

Once the agency has defined the undertaking and the Area of Potential Effect, it is ready to begin Section 106 compliance. 

The regulations outline a five-step process.

1. Identify and evaluate historic properties.

2. Assess effects.

3. Enter into consultation.

4. Allow the Advisory Council to comment.

5. Proceed.

In Step 1, the regulations require that the federal agency "make a reasonable and good faith effort to identify historic properties that may be affected by the undertaking and gather sufficient information to evaluate the eligibility of these properties for the National Register." The regulations also specify that "efforts to identify historic properties should follow the Secretary's Standards (which are advisory) and Guidelines for Archeology and Historic Preservation" (36 CFR Part 800.4a(2)). Particularly, the identification efforts should be consistent with the Secretary of the Interior's Standards and Guidelines for Identification.

In accordance with 36 CFR Part 800.4a(1), the agency official shall:

1. Review existing information on historic properties potentially affected by the undertaking, including any data concerning the likelihood that unidentified historic properties exist in the area of potential effects;

2. Request the views of the State Historic Preservation Officer on further actions to identify historic properties that may be affected; and

3. Seek information in accordance with agency planning processes from local governments, Indian tribes, public and private organizations, and other parties likely to have knowledge of or concerns with historic properties in the area.

The Federal agency has ultimate authority in making determinations on proposed undertakings under the National Historic Preservation Act; SHPO acts as a consulting party within the process and has no regulatory authority.

As part of the identification process, an agency may need to have an identification survey (Phase IA Reconnaissance survey or Phase I Intensive survey) conducted in the area of potential effect particularly if no information on historic properties is available for the area of potential effect and there appears to be a potential for historic properties to be located within the area of potential effect. This survey is conducted to identify cultural resources that exist within the proposed project area. The majority of cultural resources found are often determined to not be significant, and thus, no further work is needed on them.

However, Phase I surveys sometimes identify sites that are potentially eligible for listing on the National Register. Such a finding would necessitate additional archaeological investigations in the form of Phase II testing, which involves detailed research to determine the significance and integrity of the sites. If the Phase II testing results in finding National Register-eligible properties, then the project moves to Step 2 in the Section 106 process.

Step 2 involves carefully examining the project to determine whether it will have an effect on the identified historic properties. An effect occurs when "the undertaking may alter characteristics of the property that may qualify the property for inclusion in the National Register." If an effect is found, then the federal agency and the SHPO consult to determine whether the effect is adverse. An undertaking is considered to have an adverse effect when the effect on the historic property may diminish the integrity of the property's location, design, setting, materials, workmanship, feeling, or association.

If there is an adverse effect, then the agency and the SHPO consider ways to minimize the impact of the project on the resource. This is Step 3. A decision should be made about what to do with the historic property. There are various ways to minimize the impact to the identified historic property that are discussed in the Guidelines for Conducting Archaeological Investigations in Iowa. Re-designing the project to avoid the historic property may appear as one way of minimizing the impact but may actually delay the decision about what to do with the historic property.

Once the federal agency and the SHPO have consulted, the project moves to Step 4. At this step, the Advisory Council has the opportunity to comment on the undertaking. Once the Council's comments have been taken into account, the project moves to Step 5 and proceeds.

The federal agency is legally required to see that the Section 106 process is completed. If the agency does not fulfill its responsibilities, then any citizen or organization can pursue legal action to make the agency fulfill the requirements.