ADVOCACY ALERT: Section 106 Under Threat

What is Section 106?

Section 106 is part of the National Historic Preservation Act, enacted in 1966, that requires any project carried out, funded, or assisted by federal dollars to consider the effects the undertaking will have on historic resources.

The Process

1. Initiate 106 — A federal agency is required to initiate the 106 process. They must identify if the project will affect any historic properties. They will also notify the appropriate State Historic Preservation Office, Tribal Historic Preservation Officer, and any other consulting parties and members of the general public with an economic, social, or cultural interest in the project. Missouri Preservation is often contacted about consulting on these undertakings.
2. Identify Historic Properties — The federal agency and consulting parties will determine all historic (and potentially historic) resources that the project will affect.
3. Assess Adverse Effects — Consulting parties are pivotal in this step. Parties will identify if the proposed undertaking will have any adverse effects on historic properties within the project area. Adverse effects are alterations to the building or site that would damage the integrity and/or character.
   • If it is agreed that there are no adverse effects, the project may proceed with agreed-upon conditions.
   • If adverse effects would occur, the parties must explore ways to prevent, minimize, or mitigate.
4. Resolve Adverse Effects — Once a conclusion is reached on how to overcome the adverse effects, a Memorandum of Agreement (MOA) or Programmatic Agreement (PA) will be created amongst the consulting parties which outlines the measures the federal agency must take in order to prevent, minimize, or mitigate the adverse effects.
   • In the event that an agreement cannot be reached, the Advisory Council for Historic Preservation will step in to review and comment.

While the ideal goal is to save historic properties from adverse effects altogether, on some occasions impact to or loss of the property cannot be avoided. In those events, other mitigation efforts are sought.

The construction of the interchange at US 50 and Lafayette Street in Jefferson City, Missouri, resulted in an Adverse Effect because the last remaining buildings of the historic Foot Neighborhood were demolished. As part of the Section 106 mitigation process, the documentary The Foot: A Community Remembered was created to document and interpret the last of the neighborhood that had been lost. Missouri Preservation awarded this documentary with an Osmund Overby Award in 2025, recognizing it as a unique and effective mitigation option when building loss could not be avoided.

The Risk

The Advisory Council on Historic Preservation (ACHP) is moving toward the most consequential rewrite of the Section 106 regulations since 1986, and the comment window, when it opens, is expected to be just 30 days.

Based on the ACHP’s announced review and reporting on the draft under consideration, the proposal would restructure the 106 process itself:

• State and Tribal comment on national register eligibility is gone. Consultation is replaced by an agency-written “Section 106 Report.” Agencies would determine what is historic, what is affected, and what is adequate mitigation, then circulate their conclusions for comment.
• “Historic property” would be redefined to require built improvements and small areas—excluding landscapes and natural features. Properties important to Native Americans would no longer be considered.
• Changes to a property’s setting will no longer be considered an adverse effect. If a project doesn’t physically touch the resource, the surrounding context that makes it eligible wouldn’t matter.
• Avoidance disappears as the priority. “Avoid, minimize, mitigate” simply becomes “address.” Agencies could easily document that other considerations outweigh preservation needs and move on, creating a unilateral Memorandum of Decision instead of a negotiated Memorandum of Agreement.
• Public participation becomes optional, at the agency’s “exclusive discretion.” The category of consulting party that lets preservation nonprofits (like Missouri Preservation) and concerned citizens at the table would be eliminated.
• Whole classes of federal actions—delegated programs, block-granted funds, “minimal” federal involvement—would no longer be considered undertakings at all.

Section 106 has produced sixty years of negotiated outcomes, documentation, and seats at the table for states, tribes, local governments, and the public. That table is being removed.

What is Next?

The National Trust for Historic Preservation is hosting a webinar this Thursday, July 30th at 12:00 p.m. to talk about the threat. They have also created a one-pager to help summarize the risk.

The National Conference of State Historic Preservation Officers (NCSHPO) put together a helpful timeline on what has happened thus far and what will happen next.

Missouri Preservation is following along closely and will share news regarding the public comment period when it opens. Share your concern with your congressperson and local legislators — this isn’t just a federal threat; the proposed changes affect how states will have a say in protecting their own historic resources! Find your congressperson and state legislators here.

Help Missouri Preservation in our advocacy efforts by becoming a member today!