3.4.1 SECTION 106 REVIEW PROCESS
Section 106 of NHPA granted legal status to historic preservation in Federal planning, decision-making, and project execution. Section 106 requires all Federal agencies to take into account effects of their actions on historic properties, and provide the Council with a reasonable opportunity to comment on those actions and manner in which Federal agencies are taking historic properties into account in their decisions.
Section 106 of the NHPA specifically directs federal agencies with direct or indirect jurisdiction over a federal or federally funded undertaking, to take into account the effect of the undertaking on any district, site, building, structure or object that is included in or eligible for inclusion in, the National Register of Historic Places. The NHPA regulations also require agencies to consult with the State Historic Preservation Officer (SHPO) and the Tribal Historic Preservation Officer (THPO) and the Advisory Council on Historic Preservation. In accordance with Section 101(b)(3) of the act, the SHPO advises, assists and cooperates with the Federal agencies in carrying out the Section 106 responsibilities. The consultation process needs to be completed as part of the environmental review process, prior to RD approval of an applicant’s proposal.
Tribal
In 1992, the U.S. Congress adopted amendments to the National Historic Preservation Act (PL 102-575) that allow federally recognized Indian tribes to take on more formal responsibility for the preservation of significant historic properties on tribal lands. Specifically, Section 101(d)(2) allows tribes to assume any or all of the functions of a State Historic Preservation Officer (SHPO) with respect to tribal land. The decision to participate or not participate in the program rests with the tribe.
As a formal participant in the national historic preservation program, a tribe may assume official responsibility for a number of functions aimed at the preservation of significant historic properties. Those functions include identifying and maintaining inventories of culturally significant properties, nominating properties to national and tribal registers of historic places, conducting Section 106 reviews of Federal agency projects on tribal lands, and conducting educational programs on the importance of preserving historic properties.
The Federal agency must consult a designated representative of the tribe in addition to the SHPO during review of projects occurring on, or affecting historic properties on, their tribal lands. The designated representatives of these tribes are included within the term “THPO” in the Council’s regulations. The Bureau of Indian Affairs and the National Park Service can provide initial contact information for these tribes.
Federal agencies must also consult with Indian tribes that attach religious and cultural significance to historic properties, regardless of their location. The Native American Consultation Database (NACD) is a useful tool for identifying consultation contacts for each Indian tribe, Alaskan Native corporation, and Native Hawaiian organization. http://home.nps.gov/nacd/
Delaware and Maryland have no federally recognized tribes or tribal land. However, during the consultation with SHPO, a reasonable and good-faith effort will be made to identify historic properties of religious and cultural significance to Indian Tribes, which may be potentially impacted by Rural Development (RD) process, services or applicant activities. Consultation with THPO and Indian tribes interested in the process will be initiated for an applicant's proposal that has the potential to affect historic properties to which a tribe may attach religious or cultural significance. Remember that these tribes are sovereign nations.
CONSULTATION PROCESS
The following decision making process will assist in ensuring compliance with NHPA and Rural Development policies regarding cultural and historic properties and appropriately complete the consultation process:
The preparer must determine whether the proposed Federal action is an undertaking requiring review under Section 106. All RD actions are normally an “undertaking” as defined in 36 CFR 800.16(y) and require review under Section 106. Then determine whether the undertaking has the potential to affect historic properties by determining the scope of efforts needed to identify historic properties and evaluate their historic significance, if any. To do this, the agency first reviews background information and consults with the State Historic Preservation Officer and others who may know about historic properties in the area. The consultation process with the SHPO/THPO must begin as early as practicable during the environmental review process and will help to identify the Area of Potential Effect (APE), potential historic properties and those with significance to Native American Tribes. Plan to adequately involve the public. Identify other potential consulting parties.
Identify Historic Properties:
Determine the scope of effects to historic properties.
Identify historic properties (listed on the NRHP or eligible). If properties, that is, districts, sites, buildings, structures, or objects, are found that may be eligible for inclusion in the National Register of Historic Places, but have not yet been included in the Register, the agency evaluates them against criteria published by the National Park Service, which maintains the Register. This evaluation is carried out in consultation with the SHPO, and if questions arise about the eligibility of a given property, the agency may seek a formal determination of eligibility from the Secretary of the Interior. If a property has already been included in the National Register, of course, further evaluation is not ordinarily necessary. Section 106 review gives equal treatment to properties that have already been included in the Register and those that are eligible for inclusion.
Evaluate historic significance:
National Register criteria for evaluation: “The quality of significance in American history, architecture, archaeology, engineering, and culture is present in districts, sites, buildings, structures, and objects that possess integrity of location, design, setting, materials, workmanship, feeling, and association and
(a) that are associated with events that have made a significant contribution to the broad patterns of our history; or
(b) that are associated with the lives of persons significant in our past; or
(c) that embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or
(d) that have yielded, or may be likely to yield, information important in prehistory or history.”
Exceptions to National Register criteria:
(a) A religious property deriving primary significance from architectural or artistic distinction or historical importance.
(b) A building or structure removed from its original location but which is significant primarily for architectural value, or which is the surviving structure most importantly associated with a historic person or event.
(c) A birthplace or grave of a historical figure of outstanding importance if there is no appropriate site or building directly associated with his productive life.
(d) A cemetery which derives its primary significance from graves of persons of transcendent importance, from age, from distinctive design features, or from association with historic events.
(e) A reconstructed building when accurately executed in a suitable environment and presented in a dignified manner as part of a restoration master plan, and when no other building or structure with the same association has survived.
(f) A property primarily commemorative in intent if design, age, tradition, or symbolic value has invested it with its own exceptional significance; or
(g) A property achieving significance within the past 50 years if it is of exceptional importance.
Assess Adverse Effects:
Apply the criteria of adverse effect to historic properties:
Physical destruction of or damage to; Alteration of; Removal of; Change of the character of; Change of the setting of; Introduction of visual, atmospheric or audible elements of; Neglect of; and/or Transfer, lease, or sale of out of Federal ownership/control.
Resolve Adverse Effects:
Continue consultation.
d) Classification.
(1) Resource.
(a) National Register of Historic Places, listed property (resource to be protected).
(b) National Register of Historic Places, eligible property (resource to be protected).
(c) Potential property - resource over 50 years old (resource to be considered for protection).
(d) National Historic Landmark: National Historic Landmarks are properties recognized by the Secretary of the Interior as possessing national, as opposed to local or state, significance. All National Historic Landmarks are automatically placed in the National Register of Historic Places
(2) Type of impact:
(a) No historic property found (SHPO and THPO consultation required).
(b) No effect (SHPO and THPO consultation required).
(c) Adverse effect (SHPO, THPO, and ACHP consultation required).
(3) Types of Properties Eligible for the National Register of Historic Places:
(a) Buildings.
(b) Structures.
(c) Sites.
(d) Districts.
(e) Objects.
Key Definitions of Section 106 of the National Historic Preservation Act from 36 CFR Part 800.
-Act The National Historic Preservation Act of 1966, as amended, 16 U.S.C. Parts 470-470w-6. [36 CFR Part 800.16 (a)]
-Advisory Council on Historic Preservation See the definition under “Council”.
-Area of potential effects The geographic area or areas within which an undertaking may directly or indirectly cause changes in the character or use of historic properties, if any such properties exist. The area of potential effects is influenced by the scale and nature of an undertaking and may be different for different kinds of effects caused by the undertaking. [36 CFR Part 800.16 (d)]
-Council The Advisory Council on Historic Preservation or a Council member or employee designated to act for the Council. [36 CFR Part 800.16 (g)]
-Criteria of adverse effect An adverse effect is found when an undertaking may alter, directly or indirectly, any of the characteristics of a historic property that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property’s location, design, setting, materials, workmanship, feeling, or association…. [36 CFR Part 800.5 (a) (1)] Adverse effects on historic properties include:
1. Physical destruction of or damage to all or part of the property;
2. Alteration of a property, including restoration, rehabilitation, repair, maintenance, stabilization, hazardous material remediation and provision of handicapped access, that is not consistent with the Secretary of the Interior’s “Standards for the Treatment of Historic Properties” [36 CFR Part 68];
3. Removal of the property from its historic location;
4. Change of the character of the property’s use or of physical features within the property’s setting that contribute to its historic significance;
5. Introduction of visual, atmospheric or audible elements that diminish the integrity of the property’s significant historic features;
6. Neglect of a property which causes its deterioration, except where such neglect and deterioration are recognized qualities of a property of religious and cultural significance to an Indian tribe or Native Hawaiian organization; and
7. Transfer, lease, or sale of property out of Federal ownership or control without adequate and legally enforceable restrictions or conditions to ensure long term preservation of the property’s historic significance. [36 CFR Part 800.5 (a) (2)]
Effect Alteration to the characteristics of a historic property qualifying it for inclusion in or eligibility for the National Register of Historic Places. [36 CFR Part 800.16 (i)] Historic property Any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register of Historic Places which includes both properties formally determined as such by the Secretary of Interior. This term includes artifacts, records, and remains that are related to and located within such properties. The term includes properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization and that meet the National Register criteria. The term, “eligible for inclusion in the National Register”, includes both properties formally determined as such in accordance with the regulations of the Secretary of the Interior and all other properties than meet the National Register criteria. [36 CFR Part 800.16 (l)]
-Indian tribe An Indian tribe, band, nation, or other organized group or community, including a Native village, Regional Corporation or Village Corporation, as those terms are defined in section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians. [36 CFR Part 800.16 (m)]
-Local government A city, county, parish, township, municipality, borough, or other general purpose political subdivision of a State. [36 CFR Part 800.16 (n)]
-National Register: The National Register of Historic Places maintained by the Secretary of the Interior. [36 CFR Part 800.16 (q)]
-National Register Criteria: The criteria established by the Secretary of the Interior for use in evaluating the eligibility of properties for the National Register in 36 CFR Part 60.4:
-National Register criteria for evaluation. The quality of significance in American history, architecture, archaeology, engineering, and culture is present in districts, sites, buildings, structures, and objects that possess integrity of location, design, setting, materials, workmanship, feeling, and association and
(1) that are associated with events that have made a significant contribution to the broad patterns of our history; or
(2) that are associated with the lives of persons significant in our past; or
(3) that embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or
(4) that have yielded, or may be likely to yield, information important in prehistory or history. [36 CFR Part 800.16]
-Programmatic Agreement A document that records the terms and conditions agreed upon to resolve the potential adverse effects of a Federal agency program, complex undertaking or other situations in accordance with 36 CFR Part 800.14 (b). [36 CFR Part 800.16 (t)]
-Section 106 Review The review process established under Section 106 of the National Historic Preservation Act and administered by the Advisory Council on Historic Preservation under its regulations in 36 CFR Part 800. This process requires the head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, to take into account the effect of their undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under Title II of this Act a reasonable opportunity to comment with regard to such undertaking. [16 U.S.C. 470 (f)]
-State Historic Preservation Officer The official appointed or designated pursuant to Section 101(b)(1) of the Act to administer the State historic preservation program or a representative designated to act for the State Historic Preservation Officer. [36 CFR Part 800.16(v)]
-Tribal lands All lands within the exterior boundaries of any Indian reservation and all dependent Indian communities. [36 CFR Part 800.16 (x)]
-Undertaking A project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; those requiring a Federal permit, license or approval; an those subject to state or local regulation administered pursuant to a delegation or approval by a Federal agency. [36 CFR Part 800.16 (y)].
List of United States Department of Agriculture, Rural Development, Proposed Projects, Activities, and Programs Determined Not to be Undertakings:
(1) Loans and grants to organizations solely for purposes of funding technical assistance;
(2) Project management activities relating to invitations for bids and contract awards;
(3) Project management of construction activities;
(4) Project management activities, including financial assistance, solely for the purpose of refinancing debt;
(5) Projects solely involving the purchase of office equipment, public safety equipment, and motor vehicles;
(6) Financial assistance solely for planning purposes, management, feasibility studies, and environmental impact analyses;
(7) Loan closing and servicing activities without consequence to historic properties;
(8) Additional financial assistance that does not alter the purpose, operation, location, or design of an approved project; and
(9) Issuance of regulations and instructions;
Initiate consultation with the SHPO if historic properties may be affected. The preparer should identify and document the APE, that is the geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist.
A property is considered potentially eligible for listing in the National Register of Historic Places if it contains a structure 50 years or older. Consultation with SHPO is to be documented if such properties are affected by the undertaking.
The applicant must be informed of the requirement for SHPO review at the earliest possible contact with RD. Involve the applicant in the consultation process and encourage them to provide any necessary information required to expedite consultation with the SHPO.
The preparer, in consultation with SHPO and with assistance from the applicant, review existing information on historic properties within the APE and identify any properties that are listed or may be eligible for listing, in the National Register of Historic Places. Information may also be available with the local/county historical society.
Based on the review and consultation with SHPO and other consulting parties, the preparer shall identify historic properties within the APE and make appropriate findings and select one of the following determinations:
a. No historic properties “listed or eligible for listing” are present within the APE – No historic properties. In the environmental review document, describe the Federal undertaking, identify the APE, include appropriate maps, photographs, and drawings, the steps taken to identify historic properties, and the basis for determining that no historic properties are present or affected.
b. Historic Properties eligible or listed within the APE but the undertaking will have no effect them. - In the environmental review document describe the Federal undertaking, identify the APE, include appropriate maps, photographs, and drawings, the steps taken to identify historic properties, and the basis for determining that no historic properties are present or affected.
c. Historic properties affected, but “finding of no adverse effect”. Normally projects that comply with the Secretary of Interior’s Standards for the Treatment of Historic Properties and applicable guidelines fall in this category. - In the environmental review document describe the Federal undertaking, identify the APE, include appropriate maps, photographs, and drawings, the steps taken to identify historic properties, a description of affected historic properties, the undertakings effect on such properties, and an explanation of why the criteria of adverse effect were found applicable or inapplicable, and any conditions or future actions to avoid, minimize or mitigate adverse effects, summaries of any views provided by parties consulted. Compliance with Secretary’s Standards and obtaining the approval of plans by SHPO or other such requirements shall be included as mitigating measures.
d. Finding of adverse effect on Historic Properties. If there is potential for an “adverse effect” on historic properties, it is time to get the SEC involved. Consultation with the SHPO and other consulting parties (local governments, Indian tribes, property owners, other members of the public, and the Council) will be undertaken to resolve the “adverse effect” or to make the undertaking less harmful. Documentation in the environmental review is the same as c. above: describe the Federal undertaking, identify the APE, include appropriate maps, photographs, and drawings, the steps taken to identify historic properties, a description of affected historic properties, the undertakings effect on such properties, and an explanation of why the criteria of adverse effect were found applicable or inapplicable, and any conditions or future actions to avoid, minimize or mitigate adverse effects, summaries of any views provided by parties consulted. It may be appropriate to consider another course of action that will have no adverse effect on such identified properties, or mitigate potential adverse effects on them.
RD will provide it’s finding to SHPO along with cover letter and supporting documentation as identified above. A copy of RD’s environmental review document (or draft) will also be included. The SHPO has 30 days from the receipt of RD's finding and determination to concur. If there is no objection from SHPO within 30 days of receiving the finding and determination, the Section 106 process is complete. RD will accordingly document the environmental file and proceed with the undertaking.
If SHPO, within 30 days of the receipt of an adequately documented finding, objects to the finding, RD will continue consultation with the SHPO and other appropriate consulting parties to resolve the objection. If objections are raised it is time to get SEC involved. It may be appropriate to consider another course of action or develop mitigating measures to resolve the objection. It may also be necessary to execute a Memorandum of Agreement which will outline the measures agreed upon that the agency will take to reduce, avoid, or mitigate the adverse effect. RD will invite the Advisory Council on Historic Preservation's participation if they are not already participating. The SEC will consult with National Office. In some cases the consulting parties may agree that no such measures are available, but that the adverse effect must be accepted in the public interest.
If consultation proves unproductive, the agency or the SHPO, or the Council itself, may terminate consultation. The agency must submit appropriate documentation to the Council and request the Council’s written comments.
The Council may comment during the consultation step of the process, by participating in consultation and signing the resulting MOA. Otherwise, the agency obtains Council comment by submitting the MOA to the Council for review and acceptance. The Council can accept the MOA, request changes, or opt to issue written comments. If consultation was terminated, the Council issues its written comments directly to the agency head, as the agency had requested.
If an MOA is executed, the agency proceeds with its undertaking under the terms of the MOA. In the absence of an MOA, the agency head must take into account the Council’s written comments in deciding whether and how to proceed.
NHPA and NEPA are completely distinct statutes. Normally, as stipulated under Section 800.8, RD will complete the NHPA requirements in coordination with the NEPA process. RD will involve the public and comply with the public notice requirements in accordance with the agency’s published NEPA procedures.
A Categorical Exclusion (CE) under NEPA and RD instruction may require review under Section 106 process if there is potential to affect historic or cultural properties. Such CEs will always, according to 1940-G, be elevated to a modified Class I Environmental Assessment. The preparer of the categorical exclusion will use the above listed procedures and documentation to comply with NHPA requirements.
Advisory Council on Historic Preservation –Old Post Office Building
1100 Pennsylvania Avenue, NW,
Suite 809
Washington, DC 20004
Phone: (202) 606-8503/8505
Fax: (202) 606-8647/8672
E-mail: achp@achp.gov
http://www.achp.gov or http://www.achp.gov/index.html
Provides overview and information on ACHP Section 106 review, Federal preservation programs and policies to further preservation. Links to federal, state and tribal programs, as well as information on training offered by the Council.
Laws, Regulations and Standards - http://www.cr.nps.gov/linklaws.htm
Useful page with links to federal preservation laws, regulations, Executive Orders, standards and guidelines.
Link to full text of the National Historic Preservation Act:
http://www.usda.gov/rus/water/ees/toc.htm#Statutes
Link to full text of the Native American Graves Protection and Repatriation Act.
http://www.usda.gov/rus/water/ees/toc.htm#Statutes
Links to the Past - http://www.cr.nps.gov/index.htm
Programs such as Archaeology and Ethnology, historic preservation services and Native American Liaison can be found at this site, as well as links to Cultural Stewardship and Partnerships. The page includes information on grants, tax credits and technical assistance.
NAGPRA and tribal consultation databases - http://www.cr.nps.gov/nagpra/
Searchable page on implementation of the Native American Graves Protection and Repatriation Act and information on tribal consultation.
Federal Agency Assistance Program – http://www.cr.nps.gov/hps/fapa_p.htm
Information on NPS assistance offered to federal agencies in carrying out their preservation responsibilities.
Native American Indian Liaison Office - http://www.cr.nps.gov/ailo/ailohome.htm
Provides information on working with tribes to improve relationships between American Indian Tribes, Alaska Natives, Native Hawaiians, and the agencies through consultation, outreach, technical assistance, education, and advisory services.
National Archaeological Database (NADB) - http://www.cr.nps.gov/archeology/TOOLS/nadb.htm
Searchable database on archaeological “grey” literature - reports from archaeological investigations.
National Register of Historic Places - http://www.cr.nps.gov/nr/
Official list of historic places (maintained by the Secretary of the Interior) worthy of preservation maintenance by the National Park Service. Site includes easy access to the National Register information system, travel with historic places, and all National Register publications.
State Historic Preservation Officers (SHPOs), appointed by Governors, which coordinate preservation programs within States and with Federal agencies.
Tribal Historic Preservation Officers (THPOs), certified tribal equivalents of SHPOs. http://www.achp.gov/shpo.html
and http://www.achp.gov/thpo.html
Advisory Council on Historic Preservation (ACHP) which advises the President and Congress on preservation matters and reviews federally assisted actions.
Bureau of Indian Affairs (BIA) – http://www.doi.gov/bureau-indian-affairs.html
Offers specific information about the BIA, including data on Indian ancestry, tribal services, and lists of BIA area offices.
Department of State
Historic Preservation Office