What is Section 106? 

The National Historic Preservation Act (NHPA) was passed in 1966, along with other foundational US environmental laws put into place in the civil rights era. Section 106 of the NHPA requires agencies to consider how development projects involving federal funding or approvals could affect historic and cultural resources.

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In July, the federal Advisory Council on Historic Preservation (ADHP) advanced a sweeping rewrite of the regulations governing Section 106. The proposed changes are being reviewed by the Office of Information and Regulatory Affairs. If that review is completed, a formal public-comment period will begin. Public comments are not yet being accepted, but action is needed now!

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How does Section 106 work?

In short, project applicants consult with Tribal Nations, state and local governments, preservation organizations, property owners, and members of the public to identify potential effects and workable solutions.

Projects that meet the Secretary of the Interior’s Standards for the Treatment of Historic Properties (The Standards) take advantage of a streamlined process (“No Adverse Effect”). While for projects that don’t clearly meet The Standards, potential harm is analyzed and alternatives are considered before final decisions are made. A binding Memorandum of Agreement (MOA) between agencies is signed to avoid or minimize adverse effects to historic properties, like the 2018 MOA between VTA, BART, Native Tribes, California, and Local Governments, to minimize harm to historic properties in the BART Silicon Valley Extension Project.

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What would change?

Here are some of the most significant and troubling changes:

 

The draft removes the heart of Section 106 – consultation with State Historic Preservation Offices, Tribal Historic Preservation Offices, and local governments as a required step for every undertaking.

 

The draft adds new qualifying “geographically compact” and “built structure” language to the definition of “historic property,” potentially writing out consideration of rural historic districts, cultural landscapes and viewsheds, and traditional cultural properties such as sacred lands. 

The draft would erase the long-standing use of Binding Memoranda of Agreement between interested parties to decide how to address potential harm, and vest all of the responsibility with the approving federal agency.

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Why does it matter?

The consultation process has helped communities meet transportation, housing, energy, broadband, infrastructure, and disaster-recovery needs – without losing the historic fabric that they are built on.

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While thoughtful improvements can make federal project review clearer and more predictable, efficiency does not require eliminating meaningful consultation, weakening public participation, or concentrating decision-making and mitigation in the federal agency issuing the funding or permits.

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Our historic landmarks, archaeological sites, neighborhoods, and cultural landscapes deserve a fair review process – and our native tribes, state and local governments, and preservation organizations deserve a meaningful voice in federal decisions that affect its historic and cultural resources.

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How can you help?

In recognition of our nation’s 250 years—the National Trust for Historic Preservation is setting an ambitious goal of sending 250,000 letters to our elected officials. A short, personal message about historic places in San Jose, such as Diridon Station, Alviso, the Downtown Historic District, or  Little Italy can be more persuasive than a form letter. Each of these places has benefitted from the Section 106 process in the past, or could be radically altered without Section 106 in the future.

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Contact Governor Newsom and the California congressional delegation today. Tell them that Section 106 is not a road block, but an integral safeguard for good development. Ask them to maintain these key principles:

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Maintain the definition of historic property

Oppose the proposal to add new qualifying “geographically compact” and “built structure” language to the definition. Don’t write sacred mountains, waters, and cultural landscapes out of the definition of historic property.

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Maintain required consultation

Maintain required consultation with State Historic Preservation Offices, Tribal Historic Preservation Offices, and local governments as a required step for every undertaking.

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Maintain required memoranda of agreement

Maintain the long-standing use of Binding Memoranda of Agreement between interested parties to decide how to avoid or address potential harm. It doesn’t make sense to vest all of the responsibility with the approving federal agency.