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Infrastructure and Section 106
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President Issues New Infrastructure Executive Order
On Aug. 15, the President issued the Presidential Executive Order on Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure, with the goal of increasing the coordination, predictability, and transparency of federal environmental review and the permitting process for infrastructure projects. The EO directs federal agencies to complete their environmental reviews of “major infrastructure projects” within an average of two years, guided by a lead agency that coordinates all required federal environmental reviews to result in “one federal decision.” The ACHP anticipates the EO will sharpen the focus on agency planning and decision-making efforts. Read more here.
New Infrastructure Website Offers Resources
The ACHP is working to improve the effectiveness and efficiency of reviews carried out under Section 106 of the National Historic Preservation Act for infrastructure development. Our goal is to help federal agencies, applicants for federal permits and assistance, SHPOs/THPOs, Indian tribes, and other Section 106 participants find ways infrastructure development and preservation of our nation’s important historic places can be accomplished together. The ACHP has compiled news, background information, examples, and other resources on a new web page. Please refer to it as you navigate infrastructure projects.
ACHP And HUD Announce Winner Of Historic Preservation Award
July 21-The U.S. Department of Housing and Urban Development (HUD) and the Advisory Council on Historic Preservation (ACHP) today announced the East Baltimore Historic II project as the recipient of the inaugural ACHP/HUD Secretary’s Award for Excellence in Historic Preservation. Read more here.
Section 3 Report Preparation Guidance Questions Available
June 2-The ACHP today issued updated guidance to federal agencies on how to report on their progress in identifying, protecting, and using historic properties in their ownership or control, consistent with the requirements of Section 3 of Executive Order 13287, “Preserve America” (EO).
The Section 3 advisory guidelines are available here. While we strongly encourage the use of these guidelines, they are not mandatory, and a federal agency with real property management responsibilities can, at its discretion, independently determine how it will report on the progress of its efforts to identify, protect, and use its historic properties.
In order to assist agencies, the ACHP is hosting an open house June 28 during which ACHP staff will be available to discuss the reporting requirements, answer questions about the reporting process, and provide examples of previous agency Section 3 reports for viewing. For more information on that or questions about the report contact Section3@achp.gov.
ACHP Releases Report on Tribal Consultation
The Advisory Council on Historic Preservation today issued a report designed to promote more effective consultation with Indian tribes on decisions by federal agencies on infrastructure projects. Read the report here. It is a companion to a separate report issued in January by the Departments of the Interior and Justice and the Army Corps of Engineers regarding tribal input in infrastructure decisions. That report was prepared in response to a series of consultations held on the issue last fall. Many participants in those sessions–as well as those submitting written comments to the agencies–raised concerns about how Section 106 of the National Historic Preservation Act has been used in recent years to govern consideration of tribal input. Read the press release here. Read more.
Native Youth Newsletter Now Available
The latest edition of the Native Youth in Historic Preservation Newsletter is now available. It includes stories about Native youth getting hands on preservation experience in National Forests as well as opportunities for Native youth. Read the newsletter here.
ACHP Issues Program Comment to Speed Broadband Communications Work
As part of its efforts to expedite the regulatory approval of communications technologies, the ACHP today announced new procedures for the review of next-generation broadband projects on federal lands as required by Section 106 of the National Historic Preservation Act. Read the Federal Register notice here. Read the press release here.
New Section 101(d)(5) Guidance for Indian Tribes
Section 101(d)(5) of the National Historic Preservation Act allows the ACHP to enter into agreements with Indian tribes to substitute tribal historic preservation regulations for the ACHP’s regulations on tribal lands. This guidance will assist tribal governments that may be considering such an agreement with the ACHP. For a copy of the guidance, click here.
Intersection of Transmission Line with Regional and Tribal Concerns Results in Comprehensive Agreement for Way Forward
An agreement has been reached on historic preservation issues for the Boardman to Hemingway Transmission Line, a 300-mile-long transmission line stretching from near Boardman, Oregon, to near Melba, Idaho. The Idaho Power Company proposes to construct, operate, maintain, and eventually decommission the 500 kV transmission line that would cross various federal, state, and local jurisdictions and require permits from multiple federal agencies. The completion of this Programmatic Agreement resulted from extensive consultations with local, state, tribal, and federal entities led by the Bureau of Land Management under the Section 106 provisions of the National Historic Preservation Act. Read more.
Announcing the ACHP’s Recommendations for the Future of the National Historic Preservation Program
The ACHP is proud to make available its report The National Historic Preservation Program at 50: Priorities and Recommendations for the Future which discusses a variety of issues and offers constructive actions for ensuring success. Read the report here.
ACHP Chairman Highlights Benefits of Historic Tax Credit in Letter to Congress
As Congress weighs various proposals for tax reform, ACHP Chairman Milford Wayne Donaldson has asked the House Ways and Means Committee to consider the past success and future potential of the federal historic rehabilitation tax credit. Read his letter here.
Since 1976, more than 41,000 projects throughout the U.S. have benefited from the tax credit, generating $78.3 billion in investment and creating nearly 2.4 million jobs. The credit also pays for itself, with the $23.1 billion cost of the program offset by the $28.1 billion in tax receipts generated by projects receiving the credit.
One tax reform plan under consideration in Congress calls for elimination of most special-interest deductions and credits. In his letter to the chairman and ranking member of the committee, Donaldson noted that the 20 percent historic tax credit does not support a specific industry or locality, but it encourages the renovation of underutilized commercial properties for a wide range of uses in communities throughout the country.
Interagency Group Releases Major Report on Tribal Consultation
The Advisory Council on Historic Preservation (ACHP) commends the Departments of the Interior, Justice, and the Army on the January 18 release of a comprehensive report outlining ways to improve the role of Indian tribes in federal planning processes.
The interagency work group, which ACHP staff and Members also participated in, was set up last fall following criticism and protests from tribes and other members of the public over whether the Army Corps of Engineers and other planning agencies were obtaining adequate input from tribes on infrastructure projects such as the Dakota Access Pipeline. The group held several tribal consultation meetings over the course of the fall that examined steps the federal government might take to better ensure meaningful tribal input into infrastructure project reviews and decisions.
The report, entitled Improving Tribal Consultation and Tribal Involvement in Federal Infrastructure Decisions, includes summaries of tribal comments from the consultation sessions, as well as recommendations for how federal agencies can improve tribal consultation.
The ACHP believes the report is a major accomplishment that provides a blueprint for constructive action and opportunities to advance the ACHP's longstanding policies of effective tribal consultation in the Section 106 process.
Section 106 of the National Historic Preservation Act (NHPA) requires federal agencies to identify and assess the effects of their undertakings on historic properties. The ACHP has said in recent comments filed with the Corps that “Appendix C,” the process it uses to comply with Section 106, falls short of the NHPA requirements. In the report issued this week, the Corps pledged to update Appendix C in 2017 in response to input received from tribes.
The agencies also committed in the report to incorporating its findings into work covered by the Memorandum of Understanding on Interagency Collaboration and Coordination for the Protection of Indian Sacred Sites.
The ACHP was a participant in the work group. Vice Chair Leonard Forsman and Office of Native American Affairs Director Valerie Hauser attended the consultation meetings, and Hauser and Native American Program Specialist D. Rae Gould helped analyze tribal comments and draft the report.
The report can be viewed at https://www.bia.gov/cs/groups/public/documents/document/idc2-060030.pdf
Update: Army Corps Decision on Dakota Access Pipeline
The U.S. Army Corps of Engineers announced on December 4 that it decided not to grant an easement to the Dakota Access Pipeline to cross the Missouri River on Corps land until a fuller analysis of alternatives is completed. The Corps indicated this decision is based in part on National Environmental Policy Act (NEPA) regulations and its interest in greater public and tribal participation in infrastructure project reviews such as this.
The Corps has not indicated whether it intends to reopen or conduct any further review under Section 106 of the National Historic Preservation Act (NHPA) related to this action. At present, the Corps has determined it has fulfilled its obligations under Section 106 for the pipeline project. As reflected in its correspondence with the Corps (see here), the ACHP has questioned the sufficiency of the Corps’ review for the entire 1,172-mile pipeline under Section 106. The lawsuit filed by the Standing Rock Sioux Tribe and others regarding the Corps’ environmental review of the pipeline project, including its compliance with Section 106, remains under consideration in federal court.
An interagency work group is currently reviewing the outcome of several recent tribal consultation meetings held by the Corps, the Department of Justice, and the Department of the Interior that examined steps the federal government might take to better ensure meaningful tribal input into infrastructure project reviews and decisions. ACHP staff is participating in the work group’s analysis of the meetings and development of further actions.
ACHP Announces Community Revitalization Policy Statement
After years of research and study into the needs of communities across the U.S. who are struggling to revive their economies and historic assets, the ACHP has issued a policy statement aimed at helping to provide ideas and principles for successful community revitalization. Read more about how to help your community.
Agreement Reached for Four-State, 728-Mile Transmission Line
The proposed TransWest Express Transmission Line would move energy from Wyoming through Colorado and Utah, ending in southern Nevada, and provide power for up to 1.8 million homes in the Southwest each year. The Bureau of Land Management (BLM) has been consulting with more than 80 parties since 2012 in order to take effects on historic properties from this lengthy transmission line into account. On October 18, 2016, the ACHP signed the Programmatic Agreement (PA) that resulted from the consultation, completing the execution of the agreement.
The PA effectively addresses direct, indirect, and cumulative effects on historic properties. Building on the methodologies for assessing indirect effects done on previous transmission projects, this agreement reflects the most up-to-date thinking about addressing visual effects in landscape-scale projects (see Appendix C).
The BLM's outreach to the many interested parties in the four-state area is also of note. The agency invited 53 Indian tribes to participate in consultation, including two tribes whose reservation boundaries were crossed by the preferred alignment. Sidebar discussions between the project proponent, TransWest Express LLC, and the Ute Indian Tribe of the Uintah and Ouray Reservation led to a joint press release about the proactive hiring of qualified tribal members for construction jobs, a job fair prior to the start of construction, and a career fair for high school students highlighting energy-related jobs. Prior to the ACHP's signature, 34 parties signed the PA, including four Indian tribes, indicating unusually broad consensus about the agreement. View the full Programmatic Agreement here.
New Report on Climate Change Highlights Efforts in Historic Preservation
A new White House report highlights the damage that climate change can cause to historic properties and neighborhoods, cultural institutions, tribal sites, and other heritage assets. The impacts from climate change “can irrevocably change a community’s sense of place and erode community identity and stability,” according to Opportunities to Enhance the Nation’s Resilience to Climate Change. The report goes on to note the federal government is exploring ways to support communities seeking to relocate in the face of rising sea levels, and that the National Park Service and Federal Emergency Management Agency have published guidance regarding cultural resources and climate change. The report was prepared by the interagency Council on Climate Preparedness and Resilience, of which the ACHP is a member.
ACHP Issues Guidance On Using Section 304 of the NHPA to Protect Sensitive Information About Historic Properties
The ACHP has issued a “Frequently Asked Questions” guidance document on protecting sensitive information about historic properties under Section 304 of the National Historic Preservation Act.
Federal agency officials, SHPOs, THPOs, Indian tribes, Native Hawaiian organizations, and other stakeholders in the Section 106 process often ask ACHP staff how sensitive information about historic properties can be protected from public disclosure. This new guidance, available online here: builds upon the successful Section 304 Webinar the ACHP offers about how Section 304 works to protect such information and thereby prevent harm to historic properties. In developing this guidance, the ACHP coordinated closely with the NPS’ Keeper of the National Register of Historic Places program to ensure these FAQs identify the most commonly asked questions and provide helpful guidance to Section 106 practitioners as well as members of the public regarding what information may be withheld from disclosure, under what circumstances, and for what reasons.
Section 106 E-Newsletters
The ACHP is sending out news related to Section 106 best practices, trends, ACHP staff, courses, and other items of interest. Read the latest edition of Section 106 News here.
Sign up to receive the e-newsletter in your own inbox by emailing your request to firstname.lastname@example.org.
The ACHP’s Recommendations on Tribal-Federal Relationships
The ACHP announces its new Recommendations for Improving Tribal-Federal Relationships.
These recommendations were developed in response to issues raised by both Indian tribes and federal agency officials in Section 106 reviews and in two regional summits co-hosted by the ACHP. The purpose is to encourage Section 106 participants to work together outside of individual project reviews to develop meaningful partnerships. The recommendations should be helpful for federal agencies, Indian tribes, State Historic Preservation Officers, and applicants.
The ACHP's Guidance on Preservation Conditions is Now Available!
The ACHP announces its new "Guidance on the Use of Real Property Restrictions or Conditions in the Section 106 Process to Avoid Adverse Effects," now on our Web site. It is best viewed from Google Chrome or Firefox.
Federal agencies transfer real property out of federal ownership in a variety of ways and for a variety of reasons. When transferring historic properties out of federal control, they often use preservation conditions to accompany these transfers. Sometimes referred to as covenants or easements, preservation conditions are restrictions and conditions on transfers of federal real property, put in place prior to transfer and written in such a way that they are adequate and legally enforceable to ensure the long-term preservation of a historic property's significance. The guidance seeks to help property managing agencies develop sound conditions to support a no adverse effect finding for Section 106 property transfer undertakings. It should also educate historic preservation stakeholders and the public who are often engaged in the development of such conditions and amendments to them. The concepts in the guidance should be useful for permitting and assistance agencies as well. (Read more.)
ACHP Electronic Section 106 System Now Available to All Federal Agencies
The ACHP is pleased to announce the availability of its voluntary Electronic Section 106 Documentation Submittal System (e106) for use by any federal agency (or officially delegated non-federal entity) when notifying the ACHP of a finding of adverse effect, inviting the ACHP to be a consulting party to resolve adverse effects, or proposing to develop a Programmatic Agreement for complex or multiple undertakings.
The e106 system is designed to improve the efficiency, effectiveness, and transparency of the Section 106 review process by providing federal agencies with an electronic submittal system that serves to expedite a critical step in Section 106 review and encourage complete and accurate submissions that can be shared with others. Read the announcement regarding the availability of this system; view the format form and instructions.
While federal agencies can continue to send hard copy documentation to the ACHP via regular mail, or electronically as a pdf, all agencies are encouraged to utilize e106 in their submissions to the ACHP.
The ACHP's Guidance on Agreement Documents is Now Available!
The ACHP is pleased to announce the availability of its new "Guidance on Agreement Documents" (GAD) now on our Web site at http://www.achp.gov/agreementdocguidance.html. It is best viewed from Google Chrome or Firefox.
Memoranda of Agreement and Programmatic Agreements play a critical role in documenting a federal agency's commitment to carry out and conclude its responsibilities under Section 106 of the National Historic Preservation Act (NHPA). GAD will assist all consulting parties—federal agencies, states, Indian tribes, Native Hawaiian organizations, applicants, local governments, and other stakeholders–to draft clear, concise, and complete Section 106 MOAs and PAs. Use of this guidance can also help minimize disputes regarding agreed upon measures down the line and save time that is better spent seeking creative and innovative ways to avoid, minimize, or mitigate adverse effects to historic properties. Read more.
ACHP Announces Release of Section 106 Applicant Toolkit
Read the ACHP’s press release about the Section 106 Applicant Toolkit. This Toolkit provides helpful tips and advice for applicants navigating the Section 106 process to make better informed decisions to improve outcomes in the review process and avoid unnecessary delays. It includes an overview of the Section 106 requirements and step by step guidance on consulting with states and Indian tribes, engaging stakeholders, and avoiding inadvertent activities that may adversely affect historic properties. Explore the toolkit here.
ACHP and CEQ Release Handbook on Coordination of Important Federal Processes
Today, the White House Council on Environmental Quality and the ACHP released a handbook designed to help coordinate required review processes under the National Historic Preservation Act and the National Environmental Policy Act. The handbook stands to significantly improve the coordination of environmental reviews across the government. This handbook provides practical advice to practitioners and stakeholders to improve the efficiency and effectiveness of federal agencies’ environmental review.
Read the press release.
Read the handbook.
Read more from CEQ and the ACHP about this important guidance.
ACHP Guidance on Reasonable and Good Faith Efforts
Read the policy issued by ACHP.
Web-based Archaeology Guidance Now Available
D.C.—The Advisory Council on Historic Preservation has developed
new archaeology guidance to assist federal agencies in meeting their
responsibilities under Section 106 of the National Historic
Preservation Act. The guidance is available at: www.achp.gov/archguide. Read more.
ACHP News Archive
Section 106 Archaeology Guidance
ACHP Guidance on Program Comments as a Program Alternative
Register for the ACHP's Section 106 Course
Economic Issues in Historic Preservation