Can a federal project proceed if it would destroy a historic property?

What the Law Says

The National Historic Preservation Act (NHPA) requires federal agencies to consider the effects of their undertakings on historic properties and provide the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment. This process—known as Section 106 review—is mandatory before a federal project can proceed if it may affect a property listed in or eligible for the National Register of Historic Places.

Under 54 U.S.C. § 300101, Congress declared it national policy to 'use measures, including financial and technical assistance, to foster conditions under which our modern society and our historic property can exist in productive harmony.' The law establishes a framework to protect historic resources from adverse effects caused by federal actions.

The core procedural requirement is found in Section 106 of the NHPA (codified at 54 U.S.C. § 306108), which mandates that a federal agency 'shall take into account the effect of the undertaking on any historic property.' If an undertaking may adversely affect such a property, the agency must consult with the State Historic Preservation Officer (SHPO) or Tribal Historic Preservation Officer (THPO), the ACHP, and other stakeholders to seek ways to avoid, minimize, or mitigate harm.

Importantly, the statute does not prohibit all harm—but it prohibits proceeding without completing this review. Failure to comply renders the agency action legally vulnerable and subject to injunction.

Statutory Text

It is the policy of the United States to … use measures, including financial and technical assistance, to foster conditions under which our modern society and our historic property can exist in productive harmony.

— 54 U.S.C. § 300101 — Historic property preservation

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