ACHP Section 106 News |
WELCOME FROM OFAP DIRECTOR REID NELSON
Welcome to the inaugural edition of the ACHP’s Section 106 E-Newsletter. Our goal in providing this newsletter is to help you participate effectively in the Section 106 process by keeping you informed of recent Section 106 news, advice, and training from the ACHP. Designed principally for federal agency officials, State and Tribal Historic Preservation Officers (SHPOs/THPOs), Indian tribes, Native Hawaiian organizations (NHOs), and others who work with Section 106 every day, you can expect the newsletter to contain current information on Section 106 developments that matter to you. We welcome your feedback on future articles for this newsletter.
In this edition we introduce you to the ACHP’s Office of Federal Agency Programs (OFAP). OFAP is primarily responsible for overseeing the Section 106 review process and representing the ACHP when it participates in Section 106 consultation. We also advise federal agencies on their historic preservation programs, participate on federal and non-federal work groups to address program and policy issues, and develop comments on federal, and occasionally state, legislation that has implications for historic preservation. We also:
provide general and specific technical assistance to SHPOs/THPOs, Indian tribes, NHOs, applicants, local governments, other consulting parties, and the public in navigating the Section 106 process;
develop and teach the Section 106 Essentials and the Advanced Section 106 Seminar and develop specialized training courses for federal agencies, SHPOs, Certified Local Governments, Indian tribes, and NHOs;
provide distance learning about Section 106 in the form of webinars and on-demand training, and,
Implement Section 3 of Executive Order 13287, “Preserve America” by reviewing federal agency progress reports submitted triennially on their progress in identifying, using, and protecting historic properties and developing recommendations to the President on the stewardship of federally owned or controlled historic properties.
We do all this with a dedicated staff we plan to tell you more about in coming editions. Future newsletters will also include information about other ACHP offices that play an important role in the ACHP's oversight of the Section 106 review process.
SECTION 106 IN THE NEWS
Chairman Blogs for National Trust
ACHP Chairman Milford Wayne Donaldson wrote a blog post about Section 106 for the National Trust for Historic Preservation’s Web site. The ACHP is pleased to be part of the National Trust’s new blog series commemorating the 50th anniversary of the National Historic Preservation Act.
Report on Federal Historic Property Stewardship Released
In accordance with Executive Order 13287 “Preserve America,” the ACHP has just issued its fourth Section 3 report
on how well federal agencies manage the historic properties entrusted to their care on behalf of the American people. Section 3 of the Preserve America Executive Order requires agencies to advance the protection, enhancement, and contemporary use of historic properties owned by the federal government. As agencies continue to work smarter and reduce the federal footprint to control costs, they have also found opportunities to optimize the use of historic properties to meet mission requirements, increase energy efficiency and sustainability, and promote economic development. (Staff contact: Katry Harris)
Archaeology Subcommittee Considers New Q&As for Online Archaeology Guidance
On Jan. 14 the ACHP’s Archaeology Subcommittee met to address a number of issues relating to archaeology and Section 106 reviews. The subcommittee has advised staff to add to its online “Archaeology Guidance” answers to the following questions: When should limited testing be considered an undertaking subject to review under the ACHP’s Section 106 regulations? and Do archaeological investigations require the retrieval of artifacts? This guidance will be made available on the ACHP’s Web site when complete. (Staff contact: Tom McCulloch)
BLM State Protocols Completed
The Bureau of Land Management (BLM) has completed revisions of State Protocols in states where it has a substantial presence (Alaska, Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, and Wyoming; Utah has negotiated a similar document applicable only to small-scale undertakings). Read more. (Staff contact: Nancy Brown)
Unified Federal Environmental and Historic Preservation Review Process for Disaster Recovery Assistance Established
In July 2014, a Memorandum of Understanding was signed establishing the Unified Federal Review (UFR) Process to enhance the working relationships among federal agencies (including the Corps of Engineers, Department of Housing and Urban Development, Environmental Protection Agency, the Departments of the Interior, Transportation, Commerce, Homeland Security, and Energy, and the ACHP) who respond to Presidentially declared disasters. The UFR Process aims to coordinate environmental and historic preservation reviews to expedite responses to disaster recovery projects. This can improve the federal government’s assistance to states, local and tribal governments, communities, families, and individual citizens as they recover from Presidentially declared disasters. A
UFR Fact Sheet has been developed specifically for SHPOs that explains how they can help ensure historic preservation issues and values are incorporated into disaster responses in their state. Read more. (Staff contact: Meghan Hesse)
WORKING WITH SECTION 106
1. GAD Facts:
The ACHP’s Guidance on Agreement Documents (GAD) is an online tool for developing clear, concise, and complete Section 106 agreements. It went live in November 2014. This occasional e-news item highlights a piece of advice from GAD that can help you navigate the drafting of Memoranda of Agreement (MOAs) and Programmatic Agreements (PAs). GAD is available online here.
MOA or PA?
The ACHP is often is asked where the line between MOAs and PAs lies. While there is some gray area, MOAs are the appropriate document to record the agreed upon resolution of adverse effects for discrete undertakings. These undertakings have:
a defined project beginning and end;
adverse effects that are understood and agreed upon by the consulting parties.
PAs are appropriate for multiple or complex federal undertakings where:
effects to historic properties cannot be fully determined in advance;
a federal agency wishes to develop a Section 106 agreement document to cover one or more of its programs;
a federal agency wishes to develop a Section 106 agreement document for routine management activities it carries out at a facility or installation (e.g. federal building, military base, national forest or lands); or,
the agency wishes to tailor the standard Section 106 process to better fit in with that agency’s internal management or decision making.
The difference between “Project PAs” and “Program PAs” is discussed in GAD under the “MOA or PA?” heading.
2. The Regulations Clarified: How Applicants Can Initiate Section 106 Consultation
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:
the undertaking may adversely affect a historic property;
there is a disagreement between the applicant and the SHPO/THPO regarding identification and evaluation of a historic property, and/or the assessment of effects;
there is an objection from consulting parties or the public regarding the findings and determinations, the implementation of agreed upon provisions, or their involvement in a Section 106 review;
a tribe requests the federal agency remain involved; or,
there is the potential for a foreclosure situation under 36 CFR § 800.9(b) or an anticipatory demolition under 36 CFR § 800.9(c).
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.
Read more about the role of applicants in initiating Section 106 reviews in the ACHP’s Applicant Toolkit.
NEW SECTION 106 SUCCESS STORIES PUBLISHED
The ACHP is developing 106 Section 106 Success Stories in honor of the upcoming 50th anniversary of the National Historic Preservation Act. The most recent include the following:
Port Hudson, LA: National cemetery expansion protects Civil War site
Indianapolis, IN: Lockefield Gardens New Deal public housing gets new life
Washington, D.C.: Historic federal building reused and incorporated into U.S. Holocaust Memorial Museum
Abiquí, New Mexico: Innovative cell tower avoids adverse visual effects to Georgia O’Keeffe NHL in rural village
See all of the Success Stories here. If you would like to submit your own success story, we’d love to hear from you!
CURRENT EVENTS AND TRAINING OPPORTUNITIES
1. Upcoming meetings and conferences:
ACHP winter business meeting, March 17-19, San Francisco, CA
NATHPO annual conference, week of August 17, 2015
2. Upcoming ACHP training courses and webinars:
Section 106 Essentials training course:
April 21-22, Scottsdale, AZ
May 5-6, Washington, D.C.
Section 106 Advanced Seminar training course:
April 23, Scottsdale, AZ
May 7, Washington, D.C.
An Overview of Program Alternatives webinar (1 hour, advanced level, offered twice)
March 24 @ 2 pm EDT
March 31 @ 11 am EDT
Click for more information or to register for ACHP courses and webinars.
Did you know the ACHP tweets about most Section 106 agreement documents it signs, and a host of other topics? Get ACHP tweets! From your Twitter account simply press “follow” on our usachp page.