Home News Interim Guidance for Section 106 Cases Involving “No Historic Properties Affected” and “No Adverse Effect” Findings

On September 18, 2001, a Federal district court upheld the Advisory Council on Historic Preservation’s Section 106 regulations against numerous challenges raised by the National Mining Association and the Cellular Telecommunications and Internet Association.

Nevertheless, the court invalidated two subsections of the Section 106 regulations insofar as they allowed ACHP to effectively reverse a Federal agency’s findings of “no historic properties affected” (Section 800.4(d)(2)) and “no adverse effects” (Section 800.5(c)(3)).

Prior to the court decision, an objection by ACHP or State Historic Preservation Officer/Tribal Historic Preservation Officer (SHPO/THPO) to a “no historic properties affected” finding required the Federal agency to proceed to the next step, where it would assess whether the effects were adverse. A ACHP objection to a “no adverse effect” finding required the Federal agency to attempt to resolve the adverse effects.

ACHP and the Department of Justice are presently studying the possibility of appealing the court’s invalidation of the cited subsections. ACHP will make an announcement on its Web site when a final decision is made regarding such an appeal.

In the meantime, ACHP plans to provide opinions to Federal agencies regarding their “no historic properties affected” findings, pursuant to Section 800.9(a) of its regulations, whenever appropriate. However, such opinions will be advisory and will not require the Federal agencies to continue to the next step in the Section 106 process.

In the event that a SHPO/THPO does not agree with a finding of “no historic properties affected,” the agency official should notify ACHP and seek an advisory opinion. ACHP believes this interim step, while not mandatory, would help resolve disputes and avoid the potential for litigation or other delays.

ACHP will continue reviewing “no adverse effect” disputes referred to it under Section 800.5(c)(2) within the allotted 15 day period. Nevertheless, ACHP’s opinion on such matters will be advisory and will not require agencies to proceed to the next step in the process.

Updated February 24, 2003

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