A recent federal court decision underscores how a federal agency’s failure to comply with Section 106 of the National Historic Preservation Act can impact construction projects.  

Section 106 is a procedural statute that requires each federal agency to take into account the effect of its “undertakings” on properties listed on or eligible for listing on the National Register of Historic Places. “Undertakings” include federally funded or federally permitted private projects. 

In this case, the district court granted a preliminary injunction that suspended construction on a 700+ megawatt solar project in California. The court found that the BLM, by not adequately consulting with a tribe on the project, failed to comply with Section 106. 

The case is a good reminder that owners and developers should monitor the permitting or funding agency’s approach to Section 106, because the agency’s lack of compliance can derail your project.