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What is Section 106?

Section 106 of the National Historic Preservation Act (NHPA) of 1966 requires federal agencies to consider the effect their activities may have on properties listed in or determined eligible for the National Register of Historic Places. These activities, or “undertakings,” include any projects that are federally funded, permitted or licensed. In many instances, a federal agency may delegate responsibility for initiating a Section 106 project review to the applicant (e.g., the state agency, city, utility or developer who is receiving federal funds or applying for a federal permit or license). As spelled out in 36 CFR Part 800, the process does not guarantee that historic properties or archaeological resources will not be impacted by an undertaking, but it does provide the opportunity for potential adverse effects to be considered and alternatives to minimize them to be evaluated. 

It should be noted that the Section 106 consultation process is one of compromise. In addition to submitting projects for review to the State Historic Preservation Office, federal agencies must also provide the Advisory Council on Historic Preservation (ACHP) an opportunity to comment. Other consulting parties may also include federally recognized Native American tribes, owners of other properties that may be adversely affected by an undertaking, local governments, and interested parties. Follow this link to learn more about consulting parties.

The sooner the Section 106 process is initiated, the better. By submitting a project for state review in the early stages, an agency or applicant can avoid unnecessary project delays. Early coordination may also allow a project to be redesigned to minimize adverse effects to historic structures and archaeological resources. 

Section 106 Goals

The three main goals of the Section 106 review and compliance process are:

  1. To identify historic properties or archaeological resources listed in or eligible for listing in the National Register of Historic Places that may be adversely affected by a project. This is accomplished by a review of site inventories maintained by the Kentucky Heritage Council and the Kentucky Office of State Archaeology, and by undertaking archaeological and historic structure surveys; 

  2. To identify the effect an undertaking will have on historic properties or archaeological resources located within the Area of Potential Effect (APE). The staff of the Kentucky Heritage Council may consult with the agency, applicant, and consulting parties during its review of the project. KHC makes its assessment based on criteria found in the council's regulations:
    • No effect: the undertaking will not affect historic properties or archaeological resources; 
    • No adverse effect: the undertaking will affect one or more historic properties, but the effect will not be harmful;
    • Adverse effect: the undertaking will harm one or more historic properties or archaeological sites.

  3. To find ways to avoid or minimize adverse effects on  significant historic properties or archaeological resources. If through consultation with all involved parties this cannot be accomplished, Kentucky Heritage Council staff will work with the federal agency, applicant, and other consulting parties to develop a Memorandum of Agreement (MOA) that outlines how the adverse effects to these properties will be addressed.

For more information,  see the ACHP publication Protecting Historic Properties: A Citizen's Guide to Section 106 Review.

If you think your project may require federal involvement, email Nick Laracuente, KHC's Site Protection Program Manager, for guidance, or call 502-564-7005, ext. 4566.

Frequently Asked Questions

When must a Section 106 review take place?

The Section 106 process must be completed "prior to the approval of the expenditure of any federal funds on the undertaking or prior to the issuance of any license… The Agency Official shall ensure that the Section 106 process is initiated early in the undertaking’s planning, so that a broad range of alternatives may be considered during the planning process for the undertaking (36 CFR 800.1)."

What is a project's "area of potential effects" (APE)?

The area of potential effects is "the geographic area or areas within which an undertaking may directly or indirectly cause changes in the character or use of historic properties, if any such properties exist. The area of potential effects is influenced by the scale and nature of an undertaking and may be different for different kinds of effects caused by the undertaking (36 CFR 800.16d)."

What is considered a "historic property"?

A historic property is "any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register of Historic Places, maintained by the Secretary of the Interior (36 CFR 800.16l)."  Generally, the National Register of Historic Places defines historic buildings or sites as being 50 years of age or older, although there are considerations given for significant resources less than 50 years of age as well.

What is an adverse effect?

An adverse effect is identified when "an undertaking may alter, directly or indirectly, any of the characteristics of a historic property… in a manner that would diminish the integrity" of the property. Examples of an adverse effect include:

  • Physical destruction or damage to all or part of the property.
  • Alteration of a property.
  • Removal of property from its historic location.
  • Introduction of visual, atmospheric, or audible elements that diminish the integrity of the property’s significant historic features.

Who participates in the Section 106 process?

The main participants in the Section 106 review process include federal agencies, the Advisory Council on Historic Preservation (ACHP), and the State Historic Preservation Office. Additional participants such as Tribal Historic Preservation Offices, Native American tribes, and local governments can also contribute and be instrumental to the process.

Under 36 CFR 800, "It is the statutory obligation of the federal agency to fulfill the requirements of Section 106 and to ensure that an agency official with jurisdiction over an undertaking takes legal and financial responsibility for Section 106 compliance."

Who is the State Historic Preservation Officer (often referred to as "SHPO")?

The term SHPO refers to the State Historic Preservation Officer. Under Section 101(b) of the NHPA, the SHPO is appointed by the Governor to administer the state historic preservation program and to reflect the interests of the state and its citizens in the preservation of their cultural heritage. In Kentucky, the SHPO also serves as the executive director of the Kentucky Heritage Council. Kentucky's current SHPO is Craig Potts.

The term "SHPO" is also used informally to refer to the State Historic Preservation Office. The office's professional staff has expertise in archaeology, history, architectural history, and historic preservation.

The National Park Service must approve the historic preservation plan adopted by each state program. In addition to Section 106 review responsibilities, the SHPO also administers the National Register of Historic Places program for the state; provides grants to local governments; maintains the inventory of historic buildings, sites and structures and archaeological resources; administers federal and state historic rehab tax credit programs; and provides educational and technical assistance on historic preservation issues.

What is the Advisory Council on Historic Preservation?

The Advisory Council on Historic Preservation (ACHP) is an independent federal agency that promotes the preservation, enhancement and productive use of our nation's historic resources, and advises the President and Congress on national historic preservation policy. The ACHP also issues regulations (36 CFR 800) to implement Section 106 of the NHPA, and oversees the federal Section 106 review process.

What makes a historic property "significant"?

The National Register of Historic Places has outlined four main criteria against which historic properties are assessed for significance. These criteria are the basis for which historic properties are evaluated in the Section 106 process. They are:

  • Criterion A: Properties that are associated with events that have made a significant contribution to the broad patterns of our history.
  • Criterion B: Properties that are associated with the lives of persons significant in our past.
  • Criterion C: Properties that embody the distinctive characteristics of a type, period, or method of construction, or properties that represent the work of a master, or properties that possess high artistic values, or properties that represent a significant and distinguishable entity whose components may lack individual distinction.
  • Criterion D: Properties that have yielded, or may be likely to yield information important in prehistory or history.

Learn more about the National Register program in Kentucky.

How is the Section 106 process initiated?

To initiate the Section 106 process, a hard-copy letter must be mailed or delivered to Craig Potts, KHC Executive Director and State Historic Preservation Officer, at the KHC office located at the Barstow House, 410 High Street, Frankfort, KY 40601. This letter should explain the nature of the project and include photographs of the site and a topographic map, with the site indicated on the map. Details are outlined in the Specifications for Field Work and Cultural Resource Assessment Reports.

How long does the Section 106 process take?

The Kentucky Heritage Council reviews all projects within 30 days. However, due to the large number of projects the agency reviews each year, sometimes this can take a bit longer. In order to expedite the process, please make sure your package is as complete as possible, including all relevant photographs, maps, and other information.

For Information:

Nick Laracuente
Site Protection Program Manager
(502) 564-7005, ext. 4566