Frequently Asked Questions
Section 106 Requirements

What is Section 106?
Section 106 of the National Historic Preservation Act (NHPA) requires federal agencies to take into account the effects that their federally funded activities and programs have on significant historic properties. "Significant historic properties" are those properties that are included in, or eligible for, the National Register of Historic Places. The National Register is a list of districts, sites, buildings, structures, and objects that are significant in American history, architecture, archeology, and culture. The National Register is administered by the National Park Service in conjunction with the State Historic Preservation Offices (SHPOs).

What is the purpose of Section 106?
The purpose of Section 106 is to balance historic preservation concerns with the needs of federal undertakings. This review process ensures that federal agencies identify any potential conflicts between their undertakings and historic preservation and resolve any conflicts in the public interest.

Who participates in the Section 106 review process?
There are several potential participants in the Section 106 review process for projects funded by the National Endowment for the Humanities (NEH):

  • NEH: leads the Section 106 review process and bears the ultimate responsibility to ensure that the requirements of Section 106 are met.
    • NEH Federal Preservation Officer (FPO) coordinates historic preservation activities at NEH and responds to inquiries concerning historic preservation from applicants, award recipients, and members of the public.
    • NEH General Counsel ensures that NEH has satisfied its legal obligations under Section 106.
  • The State Historic Preservation Officer (SHPO) advises and assists NEH in carrying out its Section 106 responsibilities by reviewing project plans and helping NEH determine whether any historic properties or resources will be affected by the proposed project.
  • The applicant participates in the process by providing project plans and documentation to the SHPO and to NEH, by preparing studies and analyses, as required, and by assisting NEH in coordinating public involvement.
  • The public must be consulted throughout the process so that members of the public have an opportunity to comment on NEH's effort to identify historic properties and to express their views on resolving and mitigating adverse effects.
  • Indian tribes and Native Hawaiian organizations must be consulted during the process if the proposed project might affect properties of traditional religious and cultural importance that are listed on or eligible for the National Register.
  • The Advisory Council on Historic Preservation (ACHP) may be involved in the process if an adverse effect is found or if the parties request the ACHP's involvement.

How does the Section 106 review process work?
A federal agency first determines if the proposed project activities are covered by Section 106 of the NHPA. If so, the agency initiates the Section 106 review process. Next, the federal agency gathers information to decide which properties, if any, in the project area are listed in or eligible for the National Register of Historic Places. If no properties in the project area are eligible for listing, then further Section 106 review by the agency is not necessary. If any properties in the project area are eligible, the agency then determines how these historic properties might be affected by the federally supported undertaking. If historic properties will be adversely affected, the agency consults with the other parties and explores alternatives to avoid or reduce harm to historic properties. If necessary, the agency obtains advisory comments from the ACHP. Finally, the federal agency works to reach an agreement with the SHPO (and the Advisory Council on Historic Preservation in some cases) on appropriate measures to deal with any adverse effects to the historic properties.

The Section 106 review process is explained in detail in federal regulations issued by the ACHP. These regulations appear in the U.S. Code of Federal Regulations at 36 CFR Part 800 and can be viewed here.

How are applicants who have been offered or awarded an NEH grant affected by Section 106?
Section 106 requires federal agencies to take into account the effects of their undertakings on historic properties. Section 106 regulations define "undertaking" as a "project, activity or program funded in whole or part under the direct or indirect jurisdiction of a Federal agency . . ." 36 CFR 800.16 (l)(1). This definition covers a broad range of federal activities, including construction, rehabilitation, and repair projects; licenses; permits; loans and loan guarantees; grants; and leases. Thus, if your grant application requests NEH funds to support the construction of a free-standing structure, building renovations, or additions to buildings, Section 106 requirements will apply.

Although the ultimate responsibility to comply with Section 106 rests with NEH, this obligation cannot be met unless grant applicants and recipients cooperate fully with the Section 106 review process. NEH can not release grant funds until its responsibilities under Section 106 have been met.

Do applicants have any responsibilities under Section 106 prior to being offered or awarded an NEH grant?
Yes. Although NEH does not formally initiate the Section 106 review process until an offer or an award of a grant has been approved by the Chairman of NEH, there are many steps an applicant can and should take to ensure that the Section 106 review process moves along smoothly and efficiently.

If your grant application requests NEH funds to support the construction of a free-standing structure, building renovations, or additions to buildings, you should take the following measures prior to receiving notice about whether a grant will be offered or awarded.

  1. Before you submit your application to NEH, contact the relevant State Historic Preservation Office (SHPO) about the proposed project. Once you have initiated contact, please provide the NEH Federal Preservation Officer with the SHPO's contact information and the Section 106 contact person for the project.
  2. The SHPO may request further information for review, such as detailed project plans, site plans, photographs, or other information. You should work with the SHPO and members of the public to identify any historic properties that may be affected by your proposed project. Any information or documentation provided to the SHPO should also be provided to NEH, preferably with the original application for the NEH grant or as soon as practicable thereafter. In the case of a challenge grant application, any information and documentation must be provided the NEH no later than 120 days prior to the date the grant's first certification of gifts would be due.
  3. After reviewing your project plans, the SHPO will issue a written opinion regarding the likelihood that the proposed project will affect historic properties. The SHPO's finding will likely fall under one of the following categories.
    1. No historic properties are located at or near the project location.
    2. Historic properties are located at or near the project, but the project will have no effect on the historic properties.
    3. Historic properties are located at or near the project location, but no adverse effect will occur that results from the proposed project. The SHPO may indicate that certain conditions should be met, but release of federal funds is not contingent upon these conditions.
    4. Historic properties are located at or near the project location, and these properties may be adversely affected by the proposed project. No funds can be released under the grant until measures to mitigate the adverse effects are agreed upon by the SHPO and NEH (and, if necessary, ACHP) as described in a memorandum of agreement signed by the Chairman of NEH. The applicant is also usually included among the signatories to the memorandum of agreement.
If possible, you should obtain the SHPO's written opinion before the application deadline, so that you can include it with the application. If you receive the SHPO's written opinion after the application deadline, you should forward it to the NEH FPO, and you should keep a copy with all other documentation that may be required if and when the NEH initiates the Section 106 review process. For more information on the documentation required by Section 106, please see "What are my Section 106 responsibilities if I am offered or awarded an NEH grant?" below.

Please note that if you choose to delay the Section 106 review process until after NEH makes a decision on your application, the process will take significantly longer, thereby delaying the release of any grant funds to you.

What is an adverse effect?
Under Section 106, a project adversely affects a historic property if it alters the characteristics that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property. "Integrity" is the ability of a property to convey its significance, based on its location, design, setting, materials, workmanship, feeling, and association. Adverse effects can be direct or indirect. They include reasonably foreseeable impacts that may occur later in time, be farther removed in distance, or be cumulative. Examples of adverse effects include:

  • physical destruction or damage;
  • alteration inconsistent with the Secretary of the Interior's Standards for the Treatment of Historic Properties;
  • relocation of the property;
  • change in the character of the property's use or setting;
  • introduction of incompatible visual, atmospheric, or audible elements;
  • neglect and deterioration;
  • transfer, lease, or sale out of federal control without adequate preservation restrictions

What are my Section 106 responsibilities if I am offered or awarded an NEH grant?
If you are offered or awarded an NEH grant and your project's activities are covered by Section 106, the NEH Office of Grant Management will request from you any and all appropriate documentation (beyond that already included with the original application) needed to initiate the Section 106 review process. If necessary, the NEH FPO will contact you and/or other interested parties to facilitate further consultation about the proposed project and its possible effect on historic properties. If the SHPO has found that historic properties may be adversely affected by the proposed project, then specific documentation, as required by Section 106 regulations, must be submitted to NEH. The required documentation is set forth in 36 CFR 800.11 and includes:

1. a description of the undertaking, specifying the Federal involvement and the project's 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;
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.

Once NEH receives all required documentation, it will review the materials and, within 30 days, determine whether it concurs with the recommendations of the SHPO. If NEH determines that an adverse effect will result from the proposed project, then NEH will notify the ACHP and invite the ACHP, pursuant to 36 CFR Section 800.6, to participate in consultations to resolve the adverse effect. If the ACHP elects not to participate, then NEH will continue consultations with you, the SHPO, Indian tribes and Native Hawaiian organizations (as applicable), and interested members of the public to find ways to resolve or mitigate the adverse effect. If the NEH and the SHPO agree on how to resolve or mitigate the adverse effect, then they will execute a Memorandum of Agreement. NEH will invite interested parties, including the grant recipient, to sign the Memorandum of Agreement.

Once the Memorandum of Agreement is executed and filed with the ACHP, then NEH is permitted to release grant funds to you.

Why does the public need to be involved in the Section 106 review process?
Section 106 regulations place significant emphasis on involving the public in the review process. Involving the public throughout the process provides an opportunity for members of the public to comment on whether historic properties are affected, and if so, on different ways to avoid or minimize harm. At every step of the Section 106 review process, NEH is required to ensure that the public has had an opportunity to review any appropriate documentation and comment on relevant issues.

Section 106 allows federal agencies considerable discretion in how public notice and comment are conducted. Because proposed federal undertakings vary in scope and size, NEH may approach the public notice requirement differently for each Section 106 review.

It is important that you document any and all public participation in the Section 106 review process. For example, if the public is involved in assessing historic preservation issues during a state-required environmental review process, you should ensure that such involvement is documented so that the documentation can be provided to NEH as necessary.

What happens if construction is already underway on my project at the time I submit a grant application?
Under Section 110(k) of the National Historic Preservation Act, federal agencies are permitted to withhold grants, licenses, approvals, or other assistance to applicants who intentionally significantly and adversely affect historic properties. This provision, known as the "anticipatory demolition" section, is designed to prevent applicants from destroying historic properties prior to seeking federal assistance in an effort to avoid the Section 106 review process. As a result of this provision, NEH encourages all applicants to submit their grant applications early in the project's planning process to avoid any complications from this provision. However, if the project is already underway and you have questions about how Section 110(k) and the Section 106 review process may affect eligibility for NEH grant funds, please contact the NEH FPO.

Where can I find information on historic properties?
Information on historic properties within your state or held by your tribe is available from the SHPO or Tribal Historic Preservation Officer (THPO) and local historical societies, public libraries, or local government archives. Also, the National Park Service, Department of Interior, holds information on every property listed in the National Register of Historic Places. The National Park Service may also have information on many properties that have been determined eligible and that have been nominated for (but not yet listed in) the National Register. For the National Register regulations, see: 36 CFR Part 60.

Where can I find more information about the Section 106 review process?
The Advisory Council on Historic Preservation has very thorough and useful information available on its Web site at www.achp.gov. Additionally, you can contact the NEH Federal Preservation Officer at FPO@neh.gov or (202) 606-8309 if you have any questions about how NEH complies with the requirements of Section 106.