How does Section 106 consultation interact with NCPC review on a single project in Washington, D.C.?
Executive summary
Section 106 is a statutory consultation process under the National Historic Preservation Act that requires federal agencies to identify and consider effects on historic properties and to consult with State Historic Preservation Officers, tribes, and other consulting parties; in Washington, D.C., the National Capital Planning Commission (NCPC) cannot approve a federal undertaking until Section 106 review is completed with the SHPO and the Advisory Council on Historic Preservation (ACHP) as required by law [1] [2]. NCPC’s review process is coordinated with Section 106: NCPC must both comply with Section 106 when it has approval authority and typically documents whether Section 106 consultation has been completed in its Coordinating Committee and Executive Director’s Recommendation [3] [4].
1. Legal gatekeeper: NCPC approval depends on Section 106 completion
NCPC does not operate in parallel to Section 106 as an independent substitute; instead, it functions as a gatekeeper—NCPC lacks authority to approve a federal undertaking in the District of Columbia until the Section 106 process has been carried through with the SHPO and the ACHP, meaning Section 106 is a prerequisite to NCPC final approval [2] [3].
2. Distinct but overlapping roles: who does what
Section 106 obligations rest with the federal agency that is carrying out, funding, permitting, or approving the project, which must identify consulting parties, assess effects on historic properties, and explore avoidance, minimization, or mitigation; NCPC’s role is planning review for consistency with the Comprehensive Plan and coordination among federal and District agencies, and when NCPC holds approval authority it must ensure NEPA and Section 106 compliance in its review package [1] [3].
3. Sequencing and coordination: timing matters early and often
The regulatory guidance and NCPC practice both stress early consultation: agencies should decide whether Section 106 applies and identify consulting parties at the outset so options and alternatives remain open, while NCPC’s Coordinating Committee reviews projects at multiple stages and includes statements about whether the project has been coordinated with represented agencies—NCPC staff incorporates that coordination statement into the Executive Director’s Recommendation [1] [3] [5].
4. Mechanisms for integration: MOAs, PAs, and the record
When effects cannot be avoided, agencies and consulting parties frequently memorialize agreed mitigation measures in Memoranda of Agreement (MOAs) or Programmatic Agreements (PAs) that implement Section 106 commitments; NCPC project files show MOAs and PAs executed among NCPC, the SHPO, and project proponents as the way to satisfy Section 106 before NCPC final action [6] [7] [4].
5. Participation and limits: public, tribes, and consulting parties
Section 106 requires identifying and involving consulting parties—including SHPO, tribes, applicants, local governments, and other stakeholders—and provides public participation opportunities, but the federal agency retains responsibility for the formal findings and is not legally obligated to adopt every suggestion from consulting parties; NCPC’s public hearing and testimony processes operate alongside Section 106 consultation but do not replace statutory consultations [8] [9] [3].
6. Practical implications for a single project in D.C.
For a single federal project in Washington, D.C., the practical workflow is: the lead federal agency initiates Section 106, identifies the Area of Potential Effects and consulting parties, completes consultation and any required NHPA documentation or an MOA/PA, and documents the outcome for NCPC; NCPC’s Coordinating Committee will review coordination and include Section 106 status in its recommendation, and NCPC will not grant final approval until the Section 106 process is completed or appropriately resolved through ACHP concurrence or an MOA/PA [1] [3] [6]. If questions remain in the public record or consulting parties dispute effects, those issues can delay NCPC action because Section 106 is a legal predicate to NCPC approval rather than a mere parallel comment period [2] [4].