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NHPA: A Powerful Tool, Unrealized Potential

The National Historic Preservation Act of 1966 (NHPA) is a powerful federal law that guarantees that private citizens and local governments have a voice in federal decisions impacting historic and prehistoric properties, including thousands of archaeological sites on public lands in the West. Passage of the law established:

The federal government’s role would be to provide leadership for preservation, and foster conditions under which modern society and prehistoric and historic resources can exist in productive harmony. An underlying motivation in passage of the act was to transform the federal government from an agent of indifference, frequently responsible for needless loss of historic resources, to a responsible steward for future generations.

Under provisions of Section 106 and Section 110 of NHPA, federal agencies are required to take into account the effects of all undertakings on historic and prehistoric properties that are included on the National Register of Historic Places, “or that meet the criteria for the national register.” Properties with National Register qualities that have not been formally included on the National Register are afforded equal consideration.

The scope of Section 106 compliance lies largely with the federal agency undertaking the action, and the quality of compliance varies greatly among agencies. Each agency determines the level of appropriate identification efforts and then oversees the consultation process. In theory, this process is undertaken through consultation with state historic preservation officers, state and local governments, and members of the public. The Advisory Council on Historic Preservation may participate when there are substantial impacts to important properties, when a case presents important questions of policy or interpretation, and when there are issues of concern to Native Americans. If a federal agency fails to comply with NHPA, the Advisory Council can seek legal remedy through the Department of Justice, although this is rarely done.

As part of the consultation process, federal agencies are required “to seek ways to avoid, minimize or mitigate the adverse effects.” The law outlines a mechanism for resolving disagreements over “adverse effects,” and there is a provision that “consulting parties may agree that no such measures are possible, but that the adverse effects must be accepted in the public interest.” Most importantly, Section 106 specifically recognizes the importance of public participation in the consultation process, and as noted by the Advisory Council, “the views of the public should be solicited and considered throughout the process.”


Section 106 and the Colorado Plateau Archaeological Alliance

The role of CPAA and its cooperative partners is to participate in the Section 106 compliance process through a variety of strategies. It will:

  1. Seek formal involvement in the Section 106 consultation process as an interested public. Federal agencies are specifically required by NHPA to involve the public, including advocacy groups, although this is rarely done with Section 106 compliance. Formal recognition as an interested public in all matters related to historic and prehistoric properties ensures an independent voice for resource protection.
  2. Insist that federal agencies use NHPA, as well as NEPA, not as a process to ratify decisions that have already been made, but as a decision-making tool to formulate sound policy. As the Advisory Council noted, “the consultation process breaks down quickly when decisions have been resolved in favor of a particular course of action prior to conducting a more comprehensive discussion.”
  3. Offer federal agencies independent perspectives on alternate strategies to avoid impacts to cultural and natural resources. As implemented currently, Section 106 compliance efforts are largely focused on direct impacts to cultural resources, rather than indirect ones.
  4. Insist that NHPA consultation involve broader publics.
  5. Review Section 106 compliance documentation to ensure that federal law was satisfied, and solicit intervention from the Advisory Council when it has been violated or when federal agencies are willingly ignoring their preservation responsibilities under NHPA and NEPA.
  6. Nominate historic and prehistoric properties, including archaeological districts, to the National Register as a mechanism to encourage federal agencies to consider the full impact of their decision-making on properties of significance to all Americans.

Note: All quotes are from materials published by the Advisory Council on Historic Preservation (


The Colorado Plateau Archaeological Alliance is a non-profit organization created under the laws of the state of Utah

(Internal Revenue Service 501(c)(3) charitable organization).

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