Five National Historic Preservation Act Compliance Basics Every Land Developer Needs to Know

Land developers, whether they are public agencies or private companies, spend a considerable amount of time learning how to comply with federal regulations to successfully complete their projects. Section 106 of the National Historic Preservation Act (NHPA) is one of the federal regulations that most commonly affects development projects.

Every land developer needs to be familiar with these five concepts to minimize risk. This post is the first of a five part series covering the basics of Section 106 compliance.

Does Section 106 of the NHPA apply to your project?

Section 106 of the NHPA requires land developers to take into account the effects of their projects on historic properties. The Section 106 process seeks to accommodate historic preservation concerns with the needs of land development. The goal of this process is to identify historic properties potentially affected by the project, assess the project’s effects on those properties, and seek ways to avoid, minimize or mitigate any adverse effects on those historic properties.

Your project will be subject to the Section 106 process if the project, activity, or program is funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including:

1) those carried out by or on behalf of a Federal agency;

2) those carried out with Federal financial assistance (ex. HUD funding); or

3) those requiring a Federal permit, license or approval (ex. Section 404 of the Clean Water Act permit).

If you’ve determined that Section 106 does apply to your project, your project is considered to be an “Undertaking” and the next step is to identify any historic properties potentially affected by your project.

Refer to 36 CFR §800. 1 to 800.3 for more considerations regarding your Undertaking and initiation of the Section 106 process.

The next few posts in this series will focus on the following:

2. Identifying historic properties potentially affected by your project
3. Assessing adverse effects to historic properties by your project
4. Resolving adverse effects to historic properties by your project, and
5. Other Section 106 considerations