Federal Historic Preservation Case Law, 1966-1996

III. Section 106 Implementing Regulations

The National Historic Preservation Act authorizes the Council to issue regulations‹as opposed to guidelines‹to implement Section 106. {61} These regulations structure a process through which Federal agencies must take into account the effects of their undertakings on historic properties and afford the Council an opportunity to comment. The Council has revised its regulations once (in 1986) since their first promulgation in 1979 and is currently revising them again. Following the regulations, Federal agencies collect information regarding the impacts of their actions and decisions on historic properties; consult with stakeholders to seek ways to mitigate or avoid any adverse effects; and resolve the adverse effects through consultation that considers the interests of the stakeholders.

A. Current Regulations

In 1986 the Council promulgated its most recent regulations. The regulations provide that when a Federal agency determines that its actions will fall within the definition of an undertaking as defined by NHPA and the Council's regulations, {62} it must first consult with the State Historic Preservation Officer from the State(s) in which the undertaking will have an effect. This step helps the agency identify all properties listed in or eligible for the National Register that may be affected by its undertaking. {63} Eligible properties include all properties that meet the criteria of eligibility{64} for the National Register, even if the properties have not been formally determined eligible by the Secretary of the Interior or other official. {65} As part of the identification effort, the Federal agency must solicit the views of public and private organizations, Native Americans, local governments and others likely to have knowledge of, or concerns with, the historic properties. {66} Agencies may pursue identification through a variety of means, including literature searches and field surveys. {67} The agency, in consultation with the SHPO, applies the National Register criteria to assess the eligibility of identified properties. The agency and the SHPO can agree or stipulate that the property is eligible and continue the Section 106 process. {68} Alternatively, if there is disagreement, the agency must ask the Secretary of the Interior to make a formal determination of the property's eligibility. {69}

The agency, in consultation with the SHPO, must next determine the nature of the effect its undertaking will have on any historic properties it has identified. {70} If there is no effect, the agency may proceed with the project after notifying the SHPO and receiving no objection within 15 days of notification. {71} If there is an effect but it is not adverse, the agency makes a determination of no adverse effect and either obtains the SHPO's concurrence and advises the Council of its finding, with supporting documentation, or advises the Council of its finding, with supporting documentation, and notifies the SHPO. Providing the Council does not object, the agency is deemed to have satisfied its Section 106 responsibilities and may proceed with the undertaking. {72} If there will be an adverse effect on the historic properties, the agency notifies the Council and enters into a consultation process with the SHPO and, where appropriate, the Council. {73}

Under this consultation process, the agency, the Council, if participating, and the appropriate SHPO(s) negotiate to reach agreement on means to avoid or mitigate the adverse effects of the undertaking. {74} If they are successful, they execute a Memorandum of Agreement (MOA), {75} a written agreement among the parties that sets out the agreed-upon measures. The MOA is analogous to a binding, enforceable contract, and it governs implementation of the undertaking. {76}

When entire Federal programs are involved or when a project is complex, an agency may choose to negotiate a Programmatic Agreement (PA). {77} A PA covers ongoing and future activities undertaken as part of the program it addresses, affording a Federal agency flexibility in adapting the normal Section 106 procedures to its specific needs. When an activity falls within the scope of a PA, the agency is not required to seek additional comments from the Council before proceeding, since a PA signed by the Council governs implementation of the program. {78}

The Council resolves the vast majority of undertakings it reviews through negotiation, reaching solutions that have no adverse effect on historic properties or agreements detailing how adverse effects will be avoided, mitigated, or accepted. In the unusual event that the parties cannot reach an agreement, the Federal agency must request formal comments from the Council, prior to making its decision. The Council membership then reviews the case and issues advisory comments on the undertaking within 60 days. {79} The agency considers the Council's comments and reaches a final decision on the undertaking. The head of the Federal agency must document the decision, and may not delegate this responsibility. {80}

B. Proposed Regulations

On September 13, 1996, the Council published in the Federal Register proposed regulations to streamline the Section 106 process and implement the 1992 amendments to the National Historic Preservation Act and the Administration's "Reinventing Government" initiative. The proposed regulations would change the overall Section 106 process by removing the effect determination step and proceeding directly to an assessment of adverse effects on historic properties; providing alternative procedures for Federal agencies to follow under certain circumstances; and withdrawing the Council from routine case-by-case review. In general, the proposed regulations would delegate more discretion and flexibility to Federal agencies and SHPOs to work out agreements under Section 106. The proposal would allow for more tailoring of Section 106 obligations based on the project's importance, the historic property's significance, and the nature of the impact. The process would be streamlined through the use of standard treatments for adverse effects, categorical exemptions, programmatic comments, flexible identification requirements, and Programmatic Agreements. The proposed regulations would also encourage better coordination with the environmental review process conducted under the National Environmental Policy Act. In fulfilling documentation requirements, Federal agencies could use environmental assessments and environmental impact statements for Section 106 purposes, as long as certain criteria are met. The proposed regulations also include a new section on Native American involvement in the Section 106 process, which implements the 1992 amendments by setting forth the rights of Native Americans and the duties of Federal agencies to seek Native American participation.

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