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Please note:

On January 11, 2001, revised Section 106 regulations took effect.

The Section 106 guidance material below is based on previous regulations, but is still generally relevant when assessing a Federal undertaking's impact on historic properties.

1995 NPS Nationwide Programmatic Agreement:
Simultaneous Review of NPS Plans and Section 106 Compliance for Component Undertakings

Note: This programmatic agreement went into effect October 1, 1995, and is a revision to the 1990 NPS Nationwide Programmatic Agreement. It was signed by ACHP, the National Conference of State Historic Preservation Officers, and the National Park Service.

Plan an approach that effectively coordinates plan review with Section 106 compliance for component undertakings.

The development of a project[s]-specific plan, such as a Development Concept Plan, can provide a good opportunity for NPS to meet Section 106 responsibilities not only for the plan, but for the undertaking(s) proposed in the plan as well. Stipulation VI of the 1995 Nationwide Programmatic Agreement (PA) sets forth a process for consultation on plans. In addition, Stipulation V of the Nationwide PA requires that the individual undertaking(s) contained in a plan be reviewed pursuant to ACHP's regulations, 36 CFR Part 800, "Protection of Historic Properties." The only exceptions to this requirement are undertakings programmatically excluded under Stipulation IV of the Nationwide PA or under a separate Park-specific programmatic agreement.

Because consultation in response to a request from NPS for plan review is not mandatory on the part of the State Historic Preservation Officer (SHPO) or ACHP, it is important to indicate at the earliest possible stage that the intent is to integrate Section 106 review with a planning process. This provides an opportunity to the SHPO and ACHP to coordinate with NPS to determine a schedule for completing Section 106 requirements.

NPS notification to SHPO and ACHP of initiation of planning process

The timing of compliance with 36 CFR Part 800 on component undertakings should be decided at the outset of the planning process by NPS, based on: 1) when implementation is likely to take place; and 2) whether adequate information about historic properties and effects is available. For any of the plan's undertakings whose implementation is imminent, ACHP's regulations should be consulted to ensure that those requirements are met during the planning process for those undertakings.

NPS "requests for comments" regarding NPS plans

Stipulation VI(D) of the PA: NPS requests comments concerning relevant issues "...such as management objectives, identification and evaluation of historic properties, and the potential effects of individual undertakings and alternatives on historic properties."

If identification and evaluation is in the early stages when plan review is initiated, NPS should first work with the SHPO to establish the area of potential effect and to locate, identify and evaluate historic properties in the area of potential effect, under the applicable section of ACHP's regulations (Section 800.4), which takes place in consultation with the SHPO. It is understood that these steps will have a direct bearing on the subsequent steps in the review process; nonetheless, ACHP need not be involved in the specific steps leading to determinations of National Register eligibility. However, Section 800.4(a)(iii) of the regulations is applicable at this time, and states that "[the Agency Official shall]...[S]eek information in accordance with agency planning processes from local governments, Indian tribes, public and private organizations, and other parties likely to have knowledge of or concerns with historic properties in the area." For greatest efficiency, such efforts should probably coincide with the scoping process and with Stipulation VI(D) of the Nationwide PA.

Effect Determinations

Once the identification and evaluation process has been completed, NPS should, in consultation with the SHPO, make a determination of effect for each of the undertakings in the plan. For maximum efficiency, the plan would then be drafted to satisfy the documentation requirements for Section 106 purposes (in addition to any other content appropriate for NPS plans, including those required by (NEPA). Where a plan encompasses multiple undertakings, these should be listed as follows:

  • Undertakings requiring subsequent Section 106 review: These would include undertakings whose effects to historic properties cannot be fully assessed because sufficient information about the properties is not available and is not contained in the text of the plan. In addition, if a long time period is expected to lapse before implementation, Section 106 review concurrent with plan review may not be the most efficient approach, because properties and effects may be expected to change over time, necessitating reopening of the Section 106 process in the future on that basis. [Reference: Nationwide PA—Stipulations IV(A), V, VI(C), VI(E)].

  • Adverse effect determinations: Any undertakings that could have an adverse effect on historic properties will require the comment of both the SHPO and ACHP. [Reference: Nationwide PA—Stipulation V; 36 CFR Section 800.5(e)].

  • No adverse effect and no effect determinations: Undertakings that do not adversely affect historic properties may be divided into three categories: [Reference: Nationwide PA—Stipulation V; 36 CFR Section 800.5(b),(c),(d)].

    1. undertakings that will not affect historic properties; [Reference: 36 CFR Section 800.5(b)].

    2. undertakings that will not adversely affect historic properties, but which are identified as programmatic exclusions in the Nationwide PA or a Park-specific programmatic agreement; [Reference: Nationwide PA—Stipulation IV, V(B)].

    3. undertakings that will not adversely affect historic properties, but which are not identified as programmatic exclusions in Stipulation IV or a Park-specific programmatic agreement. [Reference: 36 CFR Section 800.5(c), (d)]

      NPS should, in consultation with the SHPO, categorize each group of undertakings in the draft plan, so that it is clear which undertakings are subject to review within the National Park Service only; which must be reviewed by the SHPO only; which must be reviewed by both the SHPO ACHP; and which shall be subject to future Section 106 review. [Reference: Nationwide PA—Stipulation VI(E)]. Only in the case of a dispute between NPS and the SHPO concerning the appropriate category of review, would ACHP become involved in commenting on NPS decisions regarding category of review. However, ACHP will provide guidance if requested. [Reference: Nationwide PA—Stipulation XI, "Dispute Resolution"].

      Products evidencing that Section 106 responsibilities have been met

      In addition to the form, "Assessment of Actions Having an Effect on Historic Properties" and documentation contained in the text of the plan, tangible products of Section 106 compliance will be developed in the course of the review of specific undertakings. Letters of concurrence on eligibility and effect determinations or Memoranda of Agreement will typically serve as evidence that NPS has complied with Section 106 and ACHP's regulations for the projects referenced in these letters or memoranda. A plan, in itself, would not demonstrate that Stipulation VI had been followed, unless correspondence included in the plan contains language that clearly confirms such adherence to the applicable portions of the Nationwide PA.

      Updated April 26, 2002

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