This portion of the document will acquaint you with Section 106 of the National Historic Preservation Act (NHPA) and Section 6(f) of the Land and Water Conservation Fund Act (LWCFA). When you have finished, you should have a basic understanding of the following:
Two statutes that are independent from, but related to, Section 4(f) must be considered during Section 4(f) complianceSection 106 of the NHPA of 1966, and Section 6(f) of the LWCFA. Section 106 applies to cultural resources; Section 6(f) applies to recreational resources.
The purpose of Section 106 is to protect cultural resources that are on or eligible for the National Register of Historic Places (NRHP) and that may be affected by federal undertakings. It requires federal agencies to consider the effects of their projects on these resources and seek ways to avoid, minimize or mitigate those that are considered adverse. The process involves consultation with other parties in the Section 106 process, including the State Historic Preservation Office (SHPO) and the Advisory Council on Historic Preservation (ACHP). For more information on the ACHP, visit www.achp.gov.
So how is Section 106 relevant to Section
4(f)? Section 4(f) stipulates that in order for a cultural resource to be granted protection, it must be considered significant. The Section 106 process is the method by which a cultural resource's significance is determined. Therefore, Section 106 is an integral part of Section 4(f) whenever cultural resources are involved.
Sections 106 and 4(f) are similar in that they both mandate consideration of cultural resources in the planning of a federal undertaking. But despite their similarities, the two statutes have some key differences. One of the most important distinctions between them is this: Whereas Section 106 requires that consideration be given to the effects a project has on cultural resources, Section 4(f) requires that a special effort be made to avoid the use of cultural resources. Under Section 4(f), the Department of Transportation (DOT) must include all possible planning to minimize harm to historic sites (and other resources types) resulting from use of the resources by the project. Essentially, Section 4(f), supported by stronger case law, is viewed as a more powerful statute than Section 106.
Here are some other differences that you should be aware of:
Section 4(f) applies only to programs and policies undertaken by agencies of the DOT, while Section 106 applies to programs and policies of any federal agency.
Section 4(f) applies to the actual use or occupancy of a historic site, while Section 106 involves an assessment of adverse effects of an action on historic properties. There is no direct correlation between "use" in the Section 4(f) context and "effect" in the Section 106 context.
The Section 106 process is integral to the Section 4(f) process when cultural resources are involved. The Section 4(f) process is not integral to the Section 106 process.
The Section 4(f) process applies a more stringent analysis with respect to totally avoiding cultural resources than does the Section 106 process.
State and local governments often obtain grants through the LWCFA to acquire or make improvements to parks and recreation areas. Section 6(f) of this act prohibits the conversion of property acquired or developed with these grants to a nonrecreational purpose without the approval of the Department of the Interior's (DOI) National Park Service (NPS). Section 6(f) directs DOI to assure that replacement lands of equal value, location and usefulness are provided as a condition of such conversions. Consequently, where conversions of Section 6(f) lands are proposed for highway projects, replacement lands are required.
So how is Section 6(f) relevant to Section 4(f)? Because it is not uncommon for recreational resources to receive the LWCFA funding, Section 6(f) may be an integral part of Section 4(f) when recreational resources are involved. When you're dealing with Section 4(f) parks and recreation areas, it is critical to determine if the resources were funded by the LWCFA funds.
While Section 6(f) is similar to the and recreation-related provisions of Section 4(f), there are some key differences:
Whereas Section 4(f) applies only to programs and policies undertaken by the DOT, Section 6(f) applies to programs and policies of any federal agency.
Mitigation opportunities are more flexible under Section 4(f) and may or may not include replacement lands. Section 6(f) directs the NPS to assure that replacement lands are of equal value, location and usefulness as impacted lands.
For a quick comparison of Sections 4(f), 106 and 6(f), see the