A Proposal Fit for a “King”: Evaluating the Replacement of Section 106 of the NRHP with NEPA

Abstract

In 1994, Thomas F. King considered the consequences should Section 106 of the National Historic Preservation Act (NHPA) be eliminated. King has recommended a proactive approach to simultaneously protecting historic preservation regulations while also reforming them, namely by jettisoning Section 106 of the National Historic Preservation Act (NHPA) for stronger provisions found within the National Environmental Policy Act (NEPA). In this paper I evaluate King’s proposal in the following areas. First, in general terms, the merits of the idea of replacing Section 106 with NEPA compliance are sound if considered from the perspective of the purposes of each Act. Second, some adjustments need to occur amongst practitioners of NEPA to make this a suitable replacement for the Section 106 process. Relatedly, short of amending NEPA or Council on Environmental Quality (CEQ) regulations , an adjustment to typical NEPA practices could vastly improve Section 106 compliance when performed in NEPA related cases, but will not address King’s concerns about Section 106 policy and practice. Any alterations, from full acceptance of King’s proposal to shifts in the ways Section 106 is incorporated into NEPA practices, will have a positive impact on the way historic preservation is performed in this country.