Owning a listed property

Section 106 review: when federal money or permits trigger it

John HarrisonUpdated October 2026

Section 106 of the National Historic Preservation Act requires a federal agency, before it approves spending federal money or issues a licence for an undertaking, to take into account the effect on any property listed in or eligible for the National Register and to give the Advisory Council on Historic Preservation a reasonable opportunity to comment. It is a consultation duty on the agency, not a veto, and it is triggered by federal involvement, not by ownership. Facts are as of October 2026.

What Section 106 says

The provision, now codified at 54 U.S.C. 306108, dates from the 1966 Act. The implementing regulations are the Council’s at 36 CFR Part 800, which 36 CFR 800.1 says exist to define how agencies meet the statutory duty. The stated goal is to identify historic properties that may be affected, assess the effects and seek ways to avoid, minimize or mitigate adverse effects, through consultation that starts early in planning. The regulation also fixes the timing: the agency must complete the process before approving the expenditure of federal funds or issuing any licence.

“Historic property” is defined in 36 CFR 800.16 as any district, site, building, structure or object included in, or eligible for inclusion in, the National Register, which is kept by the National Park Service. Eligibility is enough; the Citizen’s Guide notes that a consensus determination of eligibility between the agency and the SHPO is sufficient to move forward.

What triggers it: the undertaking

36 CFR 800.16 defines an undertaking as a project, activity or program funded in whole or in part under the direct or indirect jurisdiction of a federal agency, including those carried out by or on behalf of the agency, those carried out with federal financial assistance, and those requiring a federal permit, licence or approval. The Council’s shorter version: projects a federal agency carries out, assists, funds, permits, licenses or approves.

Obvious cases are federal construction, federally funded highways, and the management of federal buildings and lands. The Citizen’s Guide gives less obvious ones: a boat dock or housing development that affects wetlands and needs a U.S. Army Corps of Engineers permit, or a cellular tower that needs a Federal Communications Commission licence. For a private owner, the common triggers are a federal grant, a federally insured or guaranteed loan, or a federal permit. If none is present, Section 106 does not apply, whatever the property’s status; see renovating or demolishing a listed building for the rules that do.

Who does what

The agency official runs the process and makes the findings; applicants often prepare the documentation, but the duty stays with the agency.
The State Historic Preservation Officer (SHPO) advises and assists the agency and, under 36 CFR 800.2, reflects the interests of the state and its citizens. Contacts are in the SHPO directory.
The Tribal Historic Preservation Officer (THPO) takes the SHPO’s role on tribal lands where the tribe has assumed that function. Tribes and Native Hawaiian organizations that attach religious and cultural significance to a property must be consulted wherever it is located.
The Advisory Council on Historic Preservation (ACHP) writes the regulations, may join consultation, and issues formal comments when consultation fails. The Citizen’s Guide says most adverse effects are resolved without it.
Consulting parties, under 36 CFR 800.2(c), include the SHPO/THPO, tribes, local governments, applicants for federal assistance or permits, and others with a demonstrated legal, economic or preservation interest in the undertaking or the affected properties.
The public. 36 CFR 800.2(d) requires the agency to provide information and seek and consider public views, except where confidentiality is warranted.

The four steps in 36 CFR 800

1. Initiate (800.3)

The agency decides whether the action is an undertaking and whether it is the type of activity that could affect historic properties. If it has no potential to cause effects, the process ends there. Otherwise the agency identifies the right SHPO or THPO, begins consultation, plans public involvement and identifies other consulting parties, coordinating with other reviews such as the National Environmental Policy Act.

2. Identify historic properties (800.4)

In consultation with the SHPO/THPO, the agency defines the area of potential effects, reviews existing information, gathers information from consulting parties and tribes, and makes what the regulation calls a reasonable and good faith effort to identify historic properties, which may include background research, field survey and oral history. Properties not already evaluated are tested against the National Register criteria.

3. Assess adverse effects (800.5)

An adverse effect exists when the undertaking may alter, directly or indirectly, any characteristic that qualifies the property for the Register in a way that diminishes its integrity of location, design, setting, materials, workmanship, feeling or association. The regulation’s examples include physical destruction or damage; alteration, including rehabilitation, repair, hazardous-material remediation and accessibility work, that is not consistent with the Secretary of the Interior’s Standards; moving the property; changing its use or setting; visual, atmospheric or audible intrusions; neglect; and transfer out of federal ownership without enforceable preservation conditions. If effects do not meet the criteria, or the project is modified to avoid them, the agency proposes a finding of no adverse effect.

4. Resolve adverse effects (800.6 and 800.7)

Where there is an adverse effect, the agency notifies the Council and consults with the SHPO/THPO and other consulting parties on alternatives that avoid, minimize or mitigate the harm. The Council must be invited when the agency wants it, when a National Historic Landmark is adversely affected, or when a programmatic agreement will be prepared; any consulting party may ask it to join. The usual outcome is a memorandum of agreement, which the Citizen’s Guide calls a legally binding agreement on how the adverse effects will be handled. If consultation is terminated, 36 CFR 800.7 sends the matter to the Council for formal comment, which the head of the agency must consider and document in the final decision.

Timelines written into the regulation

Step	Clock in 36 CFR 800
SHPO/THPO response to a request to review a finding or determination	30 days from receipt; the agency may proceed or consult the Council if there is no reply (800.3(c)(4))
Consulting-party review of a proposed finding of no adverse effect	30 days from receipt for the SHPO/THPO; the agency may proceed after that if no one objects (800.5(c))
Council decision on whether to join consultation on adverse effects	15 days from receipt of the notice or request (800.6(a)(1)(iii))
Council comments after consultation is terminated	45 days from receipt of the request, unless the agency agrees otherwise (800.7(c)(2))

Days are calendar days (800.16). The regulation sets no overall deadline; a simple project with no adverse effect may clear in one 30-day cycle, while a contested one can run for months of consultation.

What Section 106 can and cannot do

The Council’s own guide is direct: Section 106 review encourages but does not mandate preservation, and it does not mandate the approval or denial of projects. What it does is force the agency to identify what it is affecting, consult the people who care, consider alternatives, and record its decision. 36 CFR 60.2 says the same from the Register’s side: once the Council has had its opportunity to comment, program decisions rest with the agency. For a National Historic Landmark, 36 CFR 65.2 adds Section 110(f): the agency must, to the maximum extent possible, plan and act to minimize direct adverse harm.

In practice the leverage lies in the memorandum of agreement, whose mitigation terms are enforceable, and in the risk to an agency that skips the process.

How owners and neighbours take part

If you own or live near a property that a federally involved project may affect:

Confirm federal involvement. The Citizen’s Guide says this is critical and often not obvious. Ask the sponsor which agency is funding, permitting or licensing the project, and ask that agency whether Section 106 has started. If you cannot verify involvement, the Council says you can ask it to investigate.
Ask to be a consulting party. Write to the agency explaining your legal, economic or preservation interest and copy the SHPO or THPO, who help the agency decide. Status entitles you to receive the documentation, offer views and take part in developing solutions. A refusal can be referred to the Council, though the agency decides.
Comment as a member of the public. Even without consulting-party status, the agency must provide information and seek your views.
Escalate if the rules are not followed. The Council can advise an agency to reconsider its findings and can be asked to look into an agency that has not met its obligations.

Applicants for federal money or permits should expect to supply the survey and documentation, and should talk to the SHPO before design is fixed.

Examples from the database

Federal agencies are also owners, and their own buildings go through Section 106 whenever they are altered, leased or sold. Four federally built properties on this site show the kind of stock involved:

Lubbock Post Office and Federal Building, Texas, 1931 to 1932, designed under Supervising Architect James A. Wetmore.
U.S. Post Office, Modesto, California, 1932 to 1933, by the Treasury Department’s Supervising Architect’s office.
Charles R. Jonas Federal Building, Charlotte, a 1915 post office enlarged in 1934.
Point Allerton Lifesaving Station, Hull, Massachusetts, built in 1889 by the U.S. Corps of Engineers.

For any property, start with the address lookup to confirm whether it is listed, then read the nomination for its qualifying characteristics. The guide to the four criteria and seven aspects of integrity explains the terms the adverse-effect test uses.

Frequently asked questions

Does Section 106 apply to work I pay for myself on my listed house?

No. It applies only to undertakings carried out, funded, permitted, licensed or approved by a federal agency. Private work with private money and no federal permit is outside it, though local ordinances may still apply.

Can Section 106 stop a project?

Not by itself. The Advisory Council on Historic Preservation says review encourages but does not mandate preservation and does not mandate approval or denial of projects. The agency must consult and consider the Council's comments; the final decision stays with the agency.

Does my property have to be listed for Section 106 to cover it?

No. The regulations define a historic property as one included in or eligible for the National Register, so an unlisted building the agency and SHPO agree is eligible is treated the same way.

How long does Section 106 take?

The regulation sets clocks for individual steps, not for the whole process: the SHPO or THPO has 30 days to respond to a finding, the Council has 15 days to decide whether to join consultation, and 45 days to issue comments if consultation fails. Overall length depends on the project.

How do I become a consulting party?

Write to the federal agency explaining your legal, economic or preservation interest in the project, and copy the SHPO or THPO. The agency decides; if it refuses, you can ask the Council to review the denial, though the agency makes the final call.

What does Section 106 produce at the end?

Usually a finding of no historic properties affected, a finding of no adverse effect, or a memorandum of agreement setting out how adverse effects will be avoided, minimized or mitigated. If the parties cannot agree, the Council issues formal comments that the agency head must consider.

Sources

General information, not legal or tax advice. Researched from the sources above and drafted with AI assistance; published under the editor's name, corrections welcome. See the editorial policy.