OBJECTIVES
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:
ORIENTATION
Two statutes that are independent from, but related to, Section 4(f)
must be considered during Section 4(f) compliance—Section 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.
SECTION 106
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.
Relevance
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.
Differences
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.
SECTION 6(f)
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.
Relevance
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.
Differences
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
comparison chart.
