GSA‘s redevelopment of St. Elizabeth’s Hospital in Washington, D.C., for use as the new Department of Homeland Security headquarters, has been more preservation-sensitive through compliance with Section 106. (Photo: Paul Edmondson)

A lynchpin of the landmark 1966 National Historic Preservation Act is known as Section 106. This key mandate essentially requires federal agencies to stop, look, and consider the effects that their activities have on historic properties. And it has proven to be a very effective legal tool for protecting historic and cultural resources under federal law.

Unfortunately, the effectiveness of this cornerstone of federal preservation law has diminished over time. Back to Basics, a report just issued by the National Trust for Historic Preservation, is a wake-up call for all those who care deeply about the unique places that define us as Americans.

In commissioning this report, the National Trust was primarily concerned about preservation battles where we felt the Section 106 process was not correctly followed. In New Orleans, for example, 4,500 units of historic public housing that were not seriously damaged in the floods that followed Hurricane Katrina were needlessly demolished. More recently, the failure of federal agencies to take Section 106 seriously led to the approval of the unnecessary demolition of over 150 historic properties in the city.

But this study goes much deeper than simply examining high-profile, headline-grabbing Section 106 cases. Back to Basics makes specific recommendations for improving the long-term effectiveness of this critical protective mechanism.

The need for robust compliance is especially critical today, given the enormous amount of infrastructure work being generated through economic stimulus and recovery funding. And other federal funding priorities—ranging from military base realignment to disaster assistance programs—will continue to place great pressure on Section 106 review at the state and local levels. As a result, the National Trust is concerned that the pressure to spend federal funds quickly will lead to a tendency for agencies to make decisions first and go through the motions of Section 106 consultation as an afterthought.

Just as important, the National Trust is concerned about the role of public involvement in Section 106 consultation—an issue that is central to the National Trust’s mission, because our congressional charter emphasizes the importance of facilitating public participation in historic preservation. Over the past decade, the Advisory Council has scaled back its involvement in day-to-day Section 106 consultation and narrowed its participation to the more significant and complex cases. The assumption that additional public participation could help to address a reduced Advisory Council role has not been reliable, since consulting parties and the public have not always been welcomed or effectively included by the federal agencies.

The effectiveness of Section 106 as a preservation tool has been demonstrated time and time again. It is only appropriate that we explore every opportunity to ensure that this tool remains an effective means of protecting protect America’s heritage.

Preservation Primer

Section 106…
Requires that agencies consider alternatives and modifications to projects and programs to “avoid, minimize, or mitigate adverse effects on historic properties,” and to consider the views of others—including the federal Advisory Council on Historic Preservation and consulting parties.

But…
Section 106 does not mandate preservation; it merely creates a process to ensure consideration of adverse effects on historic properties. As long as agency officials have “taken into account” those adverse effects “prior to” making their decisions, the agencies have the ultimate authority to balance programmatic and preservation values, and to make the final decision on how to strike that balance.

Still…
It is no coincidence that many thousands of historic places across the country have been protected from harm that would otherwise have been caused by federal projects (and federally funded or licensed projects), because of the Section 106 process; that is what the drafters intended. As long as the process is followed in good faith—and so long as agencies start the process while alternatives can still be considered—consultation often results in historic places being saved.

Learn More:

• Section 106 of the National Historic Preservation Act: Back to Basics
• Part One: 62-Page Summary Report
• Part Two: 185-Page Technical Report
• Summary of the Report's Recommendations

The National Trust for Historic Preservation, a privately funded non-profit organization, works to save America's historic places.

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