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Construction on federal property can trigger a mandatory historic-preservation review before an agency approves, funds, permits, or carries out the work. Section 106 of the National Historic Preservation Act (NHPA), implemented by 36 CFR Part 800, requires the responsible federal agency to identify historic properties that could be affected, consult interested parties, consider ways to avoid or reduce harm, and document its decision.
The review does not automatically stop construction or require a building to be preserved in place. It can, however, change a project’s site, design, demolition or rehabilitation plan, archaeological controls, construction sequence, documentation, mitigation commitments, and schedule. The exact obligations depend on the federal connection, the property and its surroundings, the agency, and the project’s potential effects.
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When does historic-preservation review apply?
The first question is not simply whether a building is old. It is whether a federal undertaking could affect a historic property.
Federal involvement creates the reason to investigate
Section 106 covers an undertaking carried out by or on behalf of a federal agency, funded in whole or in part through federal assistance, or requiring a federal permit, license, or approval. Examples of federally owned or controlled places include military bases, national parks, forests, office buildings, post offices, and courthouses. Work can include new construction, rehabilitation, alteration, demolition, utilities, roads, bridges, site work, and other ground-disturbing infrastructure.
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Federal ownership is a strong signal to contact the responsible agency early, but it does not answer every legal question by itself. The agency must determine whether it has Section 106 responsibility and whether the undertaking has the potential to affect historic properties. A project on nonfederal land can also be covered if federal funding, approval, licensing, or permitting supplies the federal nexus.
Listed and eligible properties both matter
The process considers properties listed in, or eligible for, the National Register of Historic Places. A property does not have to be a National Historic Landmark, already listed, or previously identified as important to require consideration. The agency must make a reasonable and good-faith effort to identify properties that may be affected. That can include buildings, districts, structures, objects, archaeological sites, and properties of religious or cultural significance to tribes or Native Hawaiian organizations.
Section 110 adds continuing stewardship
Section 110 of the NHPA complements a project-specific Section 106 review. It requires federal agencies to establish preservation programs and to consider, identify, evaluate, protect, manage, and maintain historic properties under their jurisdiction or control. Those continuing duties can influence long-range asset management, facilities planning, maintenance standards, and capital decisions even when no single construction project is being resolved.
How the Section 106 process works
The responsible agency leads the process. An applicant or contractor may prepare information and, when authorized, conduct parts of the consultation, but the agency retains responsibility for findings, determinations, and compliance.
1. Define the undertaking and area of potential effects
The agency first defines the federal action and its area of potential effects (APE). The APE includes locations where the undertaking may directly or indirectly alter the character or use of historic properties. It is not necessarily the same as the construction footprint: a tall structure may affect views, a vibration-producing project may affect nearby resources, and excavation may reach archaeological deposits outside the main building pad.
Applicants should give the agency a clear project description, conceptual plans, site and utility maps, construction methods, anticipated ground disturbance, staging areas, access routes, demolition details, and a list of other federal approvals. Identify federal lands, funding, permits, licenses, and likely consulting parties before design decisions become difficult to change.
2. Identify and evaluate historic properties
Within the APE, the agency researches and surveys properties that are listed in or may be eligible for the National Register. It consults the State Historic Preservation Officer (SHPO), Tribal Historic Preservation Officer (THPO) where applicable, tribes, Native Hawaiian organizations, local governments, applicants, and other parties with a demonstrated interest.
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If no historic properties are identified, ACHP guidance describes documenting that finding and seeking SHPO or THPO concurrence. The guidance describes a 30-day review period for that concurrence path. That 30 days is not a guaranteed duration for the entire Section 106 process, nor does it apply automatically to every project.
3. Assess effects
When a listed or eligible property could be affected, the agency assesses the nature and extent of the effect and invites consulting-party views. The analysis can address physical changes, demolition, alterations to character-defining materials, changes in setting or views, archaeological disturbance, noise and vibration, access, and temporary construction effects. Alternatives are considered in light of the project’s purpose and need, not as an abstract preservation exercise.
4. Resolve adverse effects
If the undertaking may adversely affect historic properties, the agency consults with SHPO or THPO and other parties to seek measures that resolve those effects. The result is commonly a Memorandum of Agreement (MOA) or Programmatic Agreement (PA). An agreement specifies commitments, responsible parties, timing, documentation, monitoring, and procedures for unanticipated discoveries or design changes.
Measures may involve avoiding a resource, minimizing the effect, or mitigating an effect that cannot be avoided. If consultation does not produce an agreement, the applicable regulations provide for Advisory Council on Historic Preservation (ACHP) comment and agency consideration. The agency may proceed, modify, or decline the undertaking after completing the required process; ACHP does not have a general veto over a federal project.
What can change in the design and construction plan?
Section 106 does not prescribe one universal mitigation package. The project’s consultation and any agreement determine the commitments. In practice, review can affect the following decisions.
Site, footprint, and alignment
The agency may compare locations, building footprints, road alignments, utility corridors, access points, or staging areas to avoid archaeological sites, historic structures, cultural landscapes, or important views. Moving a foundation, narrowing a corridor, or retaining a contributing building may be considered alongside cost, safety, operations, and constructability.
Rehabilitation, alteration, and demolition
For an existing building, consultation can influence which materials and character-defining features remain, how additions connect to the original structure, where mechanical systems are placed, and whether demolition is complete or selective. A finding of adverse effect does not automatically prohibit demolition, but it can require a documented alternatives analysis and agreed measures before the work proceeds.
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Ground disturbance and archaeological controls
Excavation limits, trenching methods, tree removal, borrow areas, temporary roads, and utility work may be adjusted to protect archaeological resources. An agreement may require monitoring, treatment plans, qualified personnel, discovery protocols, or documentation. Do not assume that a previously disturbed-looking area is archaeologically clear without the agency’s determination.
Construction sequencing and protection measures
Schedules can include preconstruction documentation, protective fencing, vibration monitoring, weather protection, limits on equipment access, or a hold point before demolition or excavation. These requirements can affect procurement, subcontractor scopes, method statements, and inspection plans. Incorporate them into bid documents and daily field controls rather than treating them as informal preferences.
Documentation and mitigation
Commitments may include measured drawings, photographs, archival research, oral-history work, interpretive materials, data recovery, or preservation of materials. The agreement should identify exactly what must be produced, who approves it, when it is due, and how records are retained. Generic promises to “document the building” are not a substitute for project-specific terms.
Can Section 106 delay funding or construction?
It can affect the schedule because surveys, consultation, public participation, negotiations, documentation, and agreed measures take time. The ACHP applicant toolkit states that there is no general regulatory deadline for completing the entire Section 106 review. Timing varies with the property, anticipated effects, complexity of consultation and negotiation, and the level of public interest or controversy.
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There is therefore no reliable universal number of days or weeks to add to a program. A no-historic-properties finding may follow the 30-day SHPO or THPO concurrence period described in ACHP guidance, while a complex project with tribal consultation, archaeological work, multiple alternatives, or an MOA can require substantially more coordination.
Plan the review at the earliest concept stage. Starting after the footprint, demolition method, or procurement package is fixed can force redesign, rebidding, or a change in sequencing. Early coordination also gives the agency time to align Section 106 with environmental review and funding milestones.
Who participates, and who makes the decisions?
Federal agency
The federal agency identifies the undertaking and APE, determines whether historic properties may be affected, makes the findings, invites consulting parties, manages the schedule, signs agreements, and remains accountable for compliance. Delegating tasks does not transfer that legal responsibility.
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SHPO and THPO
The SHPO is the principal state preservation partner. A THPO is the primary preservation partner on tribal lands where a tribe has assumed that role. Tribes and Native Hawaiian organizations may also consult about properties of religious or cultural significance, including properties located outside tribal lands.
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Applicants, local governments, and the public
An applicant can supply plans, maps, architectural-history research, archaeological studies, photographs, and alternatives analysis. The agency may authorize the applicant to initiate consultation and may require the applicant to bear reasonable project-related costs for studies, meetings, travel, or record maintenance. The applicant still does not issue the agency’s official findings.
Local governments, the ACHP, organizations, and individuals with a demonstrated interest may participate when the regulations and project circumstances support their involvement. Participation is most useful when comments address identifiable properties, effects, alternatives, or workable commitments.
Independent reader supportYour contribution helps us test, update, and keep practical guides available for everyone.How Section 106 relates to NEPA
Section 106 and the National Environmental Policy Act (NEPA) can be coordinated so that project descriptions, alternatives analysis, public participation, and schedules support both processes. They are not interchangeable by default. Section 106 consultation has its own focus on historic properties and its own consulting-party relationships.
Under 36 CFR 800.8(c), an agency may use NEPA procedures as a substitute for Section 106 only when it gives advance notice to the SHPO or THPO and ACHP and the environmental documentation meets the required standards, including addressing objections. Completing NEPA automatically does not, by itself, complete Section 106.
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How to compare design or alignment alternatives
When a project has real alternatives, use a documented comparison rather than choosing the least disruptive option by assumption. The following framework organizes the issues the agency and consulting parties will examine.
| Comparison question | What to examine |
|---|---|
| Historic-property effects | Which listed or eligible buildings, districts, structures, landscapes, archaeological sites, or cultural properties could be affected, and how? |
| Avoidance and minimization | Can the alternative meet the project’s purpose while avoiding or reducing physical, visual, archaeological, or setting-related effects? |
| Tribal and cultural resources | Could the alignment disturb properties of religious or cultural significance or require additional tribal consultation? |
| Construction feasibility | What do access, utilities, safety, sequencing, staging, procurement, and schedule look like under each option? |
| Commitments | What documentation, monitoring, mitigation, discovery procedures, or continuing management obligations would each alternative require? |
| Consultation and agency procedures | Which option best supports the agency’s preservation program and provides a clear basis for consultation and decision-making? |
This is a project-management framework, not a regulatory scoring formula. The agency’s findings and any agreement control the final commitments.
What historic-preservation review does not mean
- It does not automatically prohibit construction, require preservation in place, or compel cancellation.
- It is not limited to properties already designated as historic; eligible properties can be considered.
- It does not give ACHP a general veto over the project.
- It does not make the applicant legally responsible for the agency’s findings, even when the applicant prepares studies or conducts authorized outreach.
- The 30-day concurrence period described for a no-historic-properties finding is not a promised overall review time.
- NEPA completion does not automatically satisfy Section 106; substitution requires the notice and documentation conditions in the regulations.
A practical checklist for federal construction teams
- Confirm the federal nexus. Identify the owning or approving agency, federal funding, permits, licenses, and approvals.
- Freeze a fact-based project description. Map the footprint, APE candidates, demolition, utilities, access, staging, excavation depth, and temporary works.
- Ask about existing surveys and agency procedures. Determine whether the property, district, landscape, or archaeological area has been listed, evaluated, or covered by a programmatic agreement.
- Identify consultation interests early. Include SHPO, THPO, tribes, Native Hawaiian organizations, local governments, and other parties the agency may invite.
- Keep alternatives open. Do not commit to a footprint or demolition method before avoidance and minimization options have been considered.
- Budget for studies and commitments. Allow for architectural history, archaeology, documentation, meetings, monitoring, treatment, and records management when the agency requires them.
- Put agreement terms into procurement documents. Flow down protection measures, discovery procedures, reporting duties, hold points, and responsible contacts to contractors and subcontractors.
- Control field changes. Treat an unexpected resource or a proposed design change as a potential compliance issue; notify the agency before proceeding in a way that could alter effects.
When specialist support is useful
A qualified historic-preservation or cultural-resources consultant may help with archaeological surveys, architectural-history research, National Register evaluations, effects assessments, treatment plans, documentation, and consultation support. The need depends on the project’s scope and agency requirements. Specialist work supports the agency’s process; it does not replace the agency’s responsibility for compliance.
Bottom line
For construction on federal property, establish the federal nexus and contact the responsible agency before design and procurement are locked. Section 106 is a structured process of identification, evaluation, consultation, effects assessment, and—when necessary—agreement on avoidance, minimization, or mitigation. It can reshape the project and its schedule, but it is not an automatic stop-work rule. Section 110 adds the agency’s continuing duty to manage historic properties responsibly after the individual review is complete.
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