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Section 106 Applicant Toolkit
The Advisory Council on Historic Preservation (ACHP) has developed this toolkit to provide information and guidance on the Section 106 process to parties who are the recipients of, or are applying for federal licenses, permits, assistance, or approvals. Because many federal agencies require applicants to assist in complying with the initial steps of the Section 106 process, applicants will benefit from these tools and access to resources necessary to be effective in this role. By better understanding the requirements of Section 106, applicants can make informed decisions about how they can best facilitate Section 106 reviews, avoid project delays, and improve outcomes. The toolkit provides an overview of the Section 106 process and information on the four-step process, consulting with states and Indian tribes, engaging stakeholders, and avoiding inadvertent activities that may adversely affect historic properties.
In the National Historic Preservation Act of 1966 (NHPA), Congress established a comprehensive program to preserve the historical and cultural foundation of the nation as a living part of community life. Section 106 of the NHPA is a crucial part of that program that requires consideration of historic preservation in the many projects with federal involvement that take place every day across the nation.
Tip: Section 106 of the NHPA requires federal agencies to consider the effects on historic properties of projects they carry out, assist, fund, permit, license, or approve.
All federal agencies under the executive branch of the U.S. government are subject to the requirements of Section 106, including independent regulatory agencies. Complying with Section 106 is a federal agency responsibility and, while applicants may be asked to carry out some of the tasks for completing a Section 106 review, the federal agency remains responsible for all findings and determinations. Only when authorized by federal statute may non-federal entities be delegated legal responsibility for Section 106 compliance. For example, Congress authorized the Department of Housing and Urban Development (HUD) to delegate certain federal environmental duties, including Section 106 compliance, to a state, tribal, or local government through the Housing and Community Development Act of 1974. In certain instances, where an approved Section 106 program alternative is in place, a federal agency may authorize an applicant or other non-federal entity to undertake specified review responsibilities. The Federal Communications Commission has done so through its nationwide Programmatic Agreement, executed in 2004. Read the PA here.
Section 106 requires federal agencies to consider the effects on historic properties of projects they carry out, assist, permit, license, or approve (undertakings). Federal agencies must also provide the ACHP a reasonable opportunity to comment on such undertakings before the approval of the expenditure of any federal funds on the undertaking or before the issuance of any license. Agencies comply with Section 106 through the process in the implementing regulations, “Protection of Historic Properties” (36 CFR Part 800). The regulations implementing Section 106 can be found on the ACHP’s Web site at http://www.achp.gov/regs-rev04.pdf. A fundamental goal of the Section 106 process is to ensure that federal agencies consult with interested parties to identify and evaluate historic properties, assess the effects of their undertakings on historic properties, and attempt to negotiate an outcome that will balance project needs and historic preservation values.
Section 106 review encourages, but does not mandate, a preservation outcome and recognizes that sometimes there is no way for a project to proceed without affecting historic properties. Based on the information gathered through the Section 106 process, a federal agency may make an informed decision to approve, change, or deny a project. Therefore, the outcome of Section 106 reviews can range from avoidance of historic properties to the acceptance of extensive adverse effects to historic properties. The Section 106 process ensures that a federal agency assumes responsibility for the consequences of its undertakings on historic properties.
Although the Section 106 regulations do not mandate a timeframe within which a federal agency must complete its review, the federal agency should plan for the time needed to consult to resolve adverse effects to historic properties at the beginning of the project planning process. Depending on the circumstances and the consultation process, a federal agency may conclude its Section 106 review with a finding of “no historic properties affected” or “no adverse effects to historic properties.” Should the proposed undertaking pose adverse effects to historic properties, the agency must consult to attempt to reach an agreement on how to resolve those adverse effects. Consulting parties participate with the federal agency in the preparation of an agreement document, typically a Memorandum of Agreement (MOA) or Programmatic Agreement (PA), which establishes the agreed upon measures to resolve the adverse effect and the roles and responsibilities of the agency and the consulting parties. If the signatories cannot come to an agreement, the agency must request and consider ACHP comments. If an agreement is reached, the agency must implement all agreed upon measures set forth in the resulting MOA or PA.
Tip: When defining the undertaking, the applicant should supply a project description, conceptual plans, and maps. An applicant should consider conducting background research on the potential historic properties that may be located in the project’s area of potential effects (APE) and identifying interested parties, including Indian tribes, that may have an interest in the project’s effects on historic properties. An applicant should discuss with the federal agency any other potential federal agency approvals needed for their project so that the agency can better plan for and coordinate with other agencies on Section 106 review responsibilities.
The first step in the Section 106 review process requires the federal agency to determine whether the proposed project is an undertaking and, if so, whether it is a type of activity that has the potential to cause effects on historic properties. If the answer to either of these questions is no, no further Section 106 review is required. An undertaking is defined as “a project, activity, or program funded in whole or in part by a federal agency, including those carried out by or on behalf of a federal agency, those carried out with federal financial assistance, and those requiring a federal permit, license, or approval.” Once a federal agency determines it has an undertaking, it must determine whether that undertaking is a type of activity that has the potential to affect historic properties, assuming such properties are present. The following questions can help an agency determine whether it has an undertaking that may require Section 106 review.
Although these questions can assist in determining whether an undertaking exists, an applicant should remember there are many other examples and types of projects that are undertakings that have the potential to affect historic properties.
Tip: A federal agency should identify the applicant for the consulting parties and indicate the extent to which the applicant is available to engage in the Section 106 review.
The spectrum of applicants is diverse, from private property owners to large corporations, which may participate in the Section 106 process in various capacities consistent with the scale of their involvement in the undertaking. Each applicant should have an understanding of the Section 106 process and what its potential participation and responsibilities might involve. An applicant seeking federal funding, permits, licenses, or approvals is encouraged to actively participate in the Section 106 process. The applicant should contact the federal agency early in project planning to determine which procedures it must follow to obtain federal approvals and which actions it might be required to carry out on behalf of the agency. In some instances, the agency may follow the procedures in the Section 106 regulations that allow it to delegate the initial steps of the Section 106 process to an applicant.
Although the federal agency is ultimately responsible for Section 106 compliance, an applicant may play a vital role in the Section 106 review by completing archaeological studies or other research activities, for example, or by initiating consultation when authorized to do so by the federal agency. A federal agency may ask an applicant in the Section 106 process to pay for the cost of meetings, travel, maintaining the administrative record, or studies to inform the review.
Tip: An applicant should support the engagement of consulting parties early in the Section 106 review so that the consulting parties will understand the project schedule and identify major preservation issues early in project planning.
Many different participants play a role in the Section 106 review. Certain parties are entitled to participate in Section 106 consultation, and these parties must be identified and invited into the process by the federal agency responsible for complying with Section 106.
Other parties may also participate in the Section 106 consultation.
Tip: Expediting the four-step process may not exclude or limit the involvement of consulting parties.
The goal of the Section 106 process is to identify and avoid, minimize, or mitigate adverse effects on historic properties. The process has four basic steps: establish the undertaking, identify and evaluate historic properties, assess effects to historic properties, and resolve any adverse effects. The steps must be carried out sequentially. For example, an agency cannot assess the effects of the undertaking on historic properties until it has identified and evaluated historic properties within the APE. The federal agency must consult with the SHPO; THPO; appropriate state, local, and tribal officials; Indian tribes; NHOs; applicants; and any other consulting parties in identifying historic properties, assessing effects, and resolving adverse effects, and provide for public involvement.
If a project has the potential to alter characteristics that make a property historically significant, that project is considered to have an “adverse effect.” Adverse effects can be direct or indirect, and include all immediate and reasonably foreseeable effects to the property.
Where adverse effects are found, consultation among the agency, applicant, and consulting parties, including the ACHP in some cases, is pursued to develop avoidance alternatives or mitigation measures to resolve adverse effects.
It is important for applicants to understand Section 106 terminology and concepts. When applicants have been authorized to initiate the Section 106 process by the agency (see more information in the following topic area, “Authorization to Initiate Consultation” and Applicants), knowledge of these terms and definitions is critical. Likewise, the applicant should be familiar with the federal agency’s internal guidance, policies, and procedures to fully assist in the Section 106 review.
The following list provides guidance on the applicant’s role in the regular Section 106 process when the applicant has not been authorized by the federal agency to initiate consultation:
Step 1: Establish the Undertaking and Initiate Section 106 Process: Applicant’s Role
Step 2: Identify Historic Properties: Applicant’s Role
TIP: The National Register of Historic Places, administered by the National Park Service, is the nation’s official list of properties recognized for their significance in American history, architecture, archaeology, engineering, and culture. Section 106 requires consideration not only of those properties listed on the National Register, but also of those properties that are eligible for listing.
Step 3: Assess Effects: Applicant’s Role
Step 4: Resolve Adverse Effects: Applicant’s Role
TIP: An applicant authorized to initiate the Section 106 review should remember to develop an administrative record and be diligent in following the process.
The Section 106 regulations recognize that the federal agency may need the assistance of an applicant to coordinate the Section 106 review. The regulations allow a federal agency to authorize an applicant to initiate consultation in a specific project or program, provided that the agency first notifies the relevant SHPO/THPO in writing of the authorization. The agency should also include the ACHP in this notification. While the SHPO/THPO does not approve such authorization, the required advance notice avoids confusion and provides agency contact information. In addition, the notice verifies that the federal agency will be available, if needed, to assist with Section 106 consultation.
Under such an authorization, an applicant may be allowed to consult with the SHPO/THPO to initiate the Section 106 review process, identify and evaluate historic properties, and assess effects. Regardless of the extent of the authorization, the federal agency will remain responsible for participating in the consultation process when:
Moreover, despite these authorizations, the federal agency remains responsible for ensuring that all consultations with Indian tribes are conducted in a sensitive manner respectful of tribal sovereignty and the government-to-government relationship between the federal government and Indian tribes. An agency may not delegate consultation with Indian tribes to an applicant unless the affected tribes have agreed to such an arrangement in advance.
Through such an authorization, the applicant can facilitate the agency’s compliance with several steps in the Section 106 review process. An applicant should ask the federal agency whether it has an authorization letter that covers its program(s) or project(s).
The “authorization to initiate consultation” described above affects the role of an applicant in the regular Section 106 process. Further, if a properly executed PA or other program alternative approved by the ACHP provides an alternate process for complying with Section 106 for a program or project, its terms may define a particular role and responsibilities for the applicant that may differ from those in the regular process.
Finally, as mentioned before, an applicant can be delegated legal responsibility over Section 106 compliance through legislation, such as MAP-21.
Section 106 should be coordinated as appropriate with other applicable federal, state, and local review requirements. Local administrative reviews such as use permits, zoning, variances, or planning commission reviews and approvals may inform the Section 106 review, and are important to the federal agency. Since state and local reviews do not require federal involvement, these reviews are typically completed by the applicant. However, the applicant should keep the federal agency informed of these non-federal reviews, as they may be relevant to the Section 106 process, and the information developed to meet their requirements may be useful for Section 106 compliance.
The agency should outline all required federal review requirements early in project planning with the applicant. As the party responsible for compliance with these other authorities, and because an applicant may be unfamiliar with these federal requirements, the federal agency should be the point of contact for coordinating such related reviews. While compliance with one or more of these other statutes generally does not substitute for compliance with Section 106, a federal agency is authorized to use the process and documentation required for NEPA to substitute for the Section 106 procedures so long as the standards of 36 CFR§ 800.8(c)(1) are met.
Tip: SHPOs and THPOs should be contacted early so they can collaborate on the identification of historic properties and inform the development of alternatives.
NEPA requires that all federal agencies ensure an environmental review is completed when they propose a federal action. Each federal agency develops its own internal NEPA regulations to implement this review process. NEPA covers a broader scope of resources than Section 106; however, federal agencies should coordinate their compliance with NEPA and Section 106 and consider their Section 106 responsibilities as early as possible in the NEPA process. Agencies should plan their public participation, analysis, and review in such a way that they can meet the purposes and requirements of both statutes in a timely and efficient manner. Applicants should remember that consultation under Section 106 is different from public involvement under NEPA and requires more interaction with consulting parties. Applicants need to be familiar with NEPA documents and their possible use for Section 106. When a project is categorically excluded from NEPA review, Section 106 review may still be required. Section 106 must be completed before an agency signs a decision document for NEPA (e.g., a Record of Decision).
Tip: An applicant should always seek updates from a federal agency regarding efficiencies established to expedite Section 106 reviews in emergencies.
As part of project planning, an applicant should be aware of any procedures or PA that the federal agency has established related to disaster or emergency declarations. The emergency situations section of the Section 106 regulations, 36 CFR § 800.12(b), applies only to undertakings that will be implemented in response to the disaster or emergency within 30 days after the disaster or emergency has been formally declared by the appropriate authority or, in the case of another immediate threat to life or property, within 30 days after such an event occurs.
Several federal statutes and programs establish disaster response operations that may influence an agency’s actions and subsequent Section 106 responsibilities, such as the Robert T. Stafford Disaster Relief and Emergency Assistance Act, which directs Federal Emergency Management Agency (FEMA) programs responding to a disaster or emergency declared by the President; see http://www.fema.gov/about/stafacts.htm.
Tip: An applicant should participate in training opportunities on Section 106 and NEPA to ensure he/she understands definitions and concepts related to historic preservation.
The ACHP provides training on Section 106 for federal and non-federal entities. Applicants are encouraged to attend the training which is scheduled in various locations each year. Courses are taught by ACHP staff and are offered to beginners and more advanced practitioners. The ACHP has also added a series of distance learning (webinar) courses, often with specific topics, that enhance the training opportunities offered to applicants.
Many agencies also offer training on Section 106 and environmental reviews, and often include agency-specific policies for compliance with Section 106 in program guidance and Notice of Funding Availability details. Case studies and best management practices posted on agency Web sites provide a good overview about how to complete Section 106 reviews. Likewise, SHPOs offer periodic training taught by their staff regarding Section 106 reviews.
Tip: Section 110(k) of the NHPA prohibits a federal agency from granting a loan, loan guarantee, permit, license, or other assistance to an applicant who, with intent to avoid the requirements of Section 106, intentionally significantly adversely affected a historic property to which the grant would relate, or having legal power to prevent it, has allowed such significant adverse effect to occur, prior to a Section 106 review. This provision is often referred to as the “anticipatory demolition” section and is intended to prevent applicants from damaging a historic property prior to Section 106 review.
Section 106 will work most effectively and efficiently when an applicant: