Considering "Reasonable Assurance" in Section 106 Compliance and NEPA Decision Making

Focus Area

Historic Preservation/Cultural Resources


Community & Cultural Concerns






Under 1 year

Research Idea Scope

Highway projects often impact historic buildings and archeological sites, that when funded with Federal-aid funds, triggers Section 106 of the National Historic Preservation Act (NHPA). But those projects develop within a broader context of environmental review required by the National Environmental Policy Act (NEPA). NEPA is a law that requires Federal agencies to, as part of their agency’s mission and policies, to be a trustee of the environment, to not degrade the environment, risk safety, or lead to undesirable or unintended consequences, to preserve important historic, cultural, and natural aspects of our national heritage. These environmental policies are achieved through the NEPA process, which is a systematic and interdisciplinary approach, to assure environmental resources are given appropriate consideration in decision making, along with technical and economic considerations. Alternatively, the Section 106 of the NHPA requires Federal agencies to consider the impact of their actions on historic properties and provide requires Federal agencies to the Advisory Council on Historic Preservation with an opportunity to comment on projects before implementation. Where NEPA is a law where project decision making must adhere to environmental policies, Section 106’s focus is on gaining information on historic properties and on consultation. The Federal Highway Administration (FHWA) applies these policies to the consideration of historic resources through both NEPA and Section 106. But with increasing pressure for environmental reviews to be more streamlined, the compliance with Section 106 has become more “streamlined” with the effect of deferring full identification and consideration of historic properties until after a NEPA decision has been made. FHWA allows this deferral of Section 106 compliance only if there is “reasonable assurance” that the Section 106 requirements would be met. “Reasonable assurance” in this case means that the project decision makers have sufficient information about the presence of historic properties and project effects to those properties to complete the NEPA process, (that is the basis for developing a highway infrastructure project), even though the Section 106 process has not completed. The Problem: NEPA requires informed decision making in order to implement highway projects where the considerations for building safe and effective infrastructure are balanced with the consideration of project impacts, including impacts to historic properties. But deferring Section 106 identification and consideration of historic properties until after the NEPA decision has inhibited appropriate consideration of highway construction effects on historic properties. A project’s NEPA approval marks the point where a project’s location and concept have been decided upon and may proceed to final design and construction with Federal-aid funding. The reason why this consideration is inhibited is because Section 106 allows for the phased identification and consideration of historic properties through program alternatives (i.e., project specific programmatic agreements) that serve to defer the complete identification and consideration of historic properties until after a project’s location and concept have already been established. If sufficient information about the presence of historic properties and project effects to those properties are not adequate at the time of NEPA approval, then their consideration is not part of decision making on a project’s location and concept. This has the outcome of “treating” (or “resolving” in Section 106 parlance) the project effects to historic properties rather than “considering” those effects in deciding a project’s location and concept. The problem is that the detail and variety of information that constitutes reasonable assurance for Section 106 compliance is currently undefined. It also is true that the “reasonable assurance standard” may be applied where information on historic properties is inadequate perhaps not even evaluated. This research proposal will gather relevant information from subject matter experts to better define both the variety of information and its level of detail necessary to meet the reasonable assurance standard. Because the requirements for the consideration of natural resources and project impacts to those resources are often deferred by applying the same “reasonable assurance standard” this proposal has the potential to inform on the application of this “standard” to a variety of community, cultural, and natural resources.

Urgency and Payoff

The research would better define to what extent Section 106 determinations and decisions can be deferred without jeopardizing the associated NEPA decisions (Opperman).

Suggested By

Owen Lindauer FHWA

[email protected]