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Home Recovery Act Coordination of Section 106 - Q&A
1. Is compliance with Section 106 of the National Historic Preservation Act (NHPA) required for American Recovery and Reinvestment Act of 2009 (Recovery Act) programs and activities?
Yes, the regular legal requirements of Section 106 of the NHPA apply to Recovery Act-funded projects. On February 18, 2009, the Office of Management and Budget (OMB) issued the Initial Implementing Guidance for the American Recovery and Reinvestment Act of 2009 (OMB Guidance). It outlines how the Executive Branch agencies shall distribute Recovery Act funds, and under Section 1.6, it clarifies that such funds will be distributed in accordance with:
2. How will the Advisory Council on Historic Preservation (ACHP), which oversees Section 106 of the NHPA and its implementing regulations found at 36 CFR Part 800 (Section 106 regulations), coordinate with individual agencies receiving Recovery Act funds to expedite reviews?
The ACHP circulated a questionnaire to Executive Branch Federal Preservation Officers on February 27, 2009, asking that they summarize programs and projects funded by the Recovery Act. Agencies also were asked to summarize their Section 106 compliance strategies, including anticipated workloads. Based upon these responses, the ACHP will be contacting individual agencies to discuss options for streamlining Section 106 reviews.
3. Can an agency coordinate its Section 106 reviews with its National Environmental Policy Act (NEPA) reviews?
Pursuant to the Section 106 regulations, agencies are encouraged to coordinate compliance with Section 106 and steps taken to meet the requirements of NEPA. Opportunities to coordinate both reviews should occur early in the NEPA process so that plans for public participation, analysis of alternatives, and review can adequately meet the requirements of both review processes.
36 CFR Section 800.8(c) allows for use of the NEPA process as a substitute for Section 106 when the agency provides advance notice to the SHPO/THPO and the ACHP about its intentions to proceed in that manner. In addition to this notification, the environmental documentation prepared by the agencies must meet the standards specified in that section of the regulations and, demonstrate that the steps of the Section 106 process are adequately met, including the resolution of any objections.
4. Will the OMB monitor agencies’ compliance with Section 106 of the NHPA as part of its review of the implementation of Recovery Act?
Yes. Section 2.8(f) of the OMB Guidance requires that individual agency Recovery Program Plans, due to OMB no later than May 1, 2009, include the status of environmental review compliance for each program specifically named in the legislation. This includes a description of the status of compliance with the National Environmental Policy Act, National Historic Preservation Act, and related statutes. In accordance with the OMB Guidance, Recovery Program Plans will be posted by agencies on Recovery.gov and individual agency Web sites, allowing stakeholders to view how historic preservation is being addressed by agencies.
5. How do I know whether a Recovery Act project is “shovel ready” for Section 106 purposes?
Agencies that have identified projects and activities, as “shovel ready” must, among other things, have completed any applicable environmental compliance, including Section 106. An agency must conclude the Section 106 review process in accordance with the Section 106 regulations after consultation with the State Historic Preservation Officer (SHPO) or Tribal Historic Preservation Officer (THPO) and other consulting parties regarding the agencies’ findings and determinations. (See the Section 106 process flow chart at www.achp.gov/regsflow.html).
Evidence of compliance with Section 106 may also be demonstrated through the proper execution, and filing with the ACHP, of a Memorandum of Agreement (MOA) or a Programmatic Agreement (PA) covering the relevant project or program.
Certain agencies have entered into program alternatives, under 36 CFR Section 800.14, that streamline Section 106 or tailor the review process to agency program needs. Evidence of Section 106 compliance would be specified in that alternative. A list of program alternatives that are in place may be viewed on the ACHP’s Web site, www.achp.gov/progalt.
Finally, in rare circumstances, evidence of compliance with Section 106 may come in the form of the response of the head of the relevant agency to the ACHP’s formal comments on the particular project.
6. How should Section 106 reviews be coordinated when there is both Recovery Act and non-Recovery Act funding allocated for the same undertaking?
The Recovery Act does not alter the applicability of Section 106 regardless of source of funding. Therefore, Section 106 coordination for projects fully funded by the Recovery Act and those using non- Recovery Act funding as well as funding from other agency funding do not need to differ. For example, if a Programmatic Agreement for a local housing program using Community Development Block Grant (CDBG) funds was executed prior to the receipt of Recovery Act funds, the terms of that agreement will still be applicable to the project whether or not funding is from non-Recovery Act CDBG funding or both Recovery Act and non-Recovery Act CDBG funding.
7. Can agencies, the ACHP, and/or the SHPOs/THPOs agree to “waivers” or “exemptions” to the requirements of Section 106 for Recovery Act programs and projects?
No. Programs or projects that are subject to Section 106 may only get exemptions as provided by a program alternative established under 36 CFR Section 800.14. Specifically, an exemption can be granted by the ACHP after following the process detailed under 36 CFR Section 800.14(c). Note, however, that in order to receive such an exemption, the project or program must meet certain standards. One such standard is that its potential effects to historic properties must be foreseeable and likely to be minimal or not adverse.
Another program alternative that may be used to exempt certain undertakings from Section 106 review is a Programmatic Agreement (PA), under 36 CFR Section 800.14(b), providing that specific activities do not need to undergo Section106 review. This usually comes in the form of a PA covering a program and listing agreed-upon, specific activities within that program that will not be subjected to review.
8. How will the SHPO/THPO and the ACHP participate in Recovery Act reviews when there is an accelerated schedule for project planning and implementation?
The ACHP, SHPOs, THPOs, Indian Tribes, and Native Hawaiian organizations (NHOs) are aware of the purpose and goals of the Recovery Act and the time constraints involved. While there may be a commitment to move expeditiously on Section 106 reviews, absent the applicability of a program alternative under 36 CFR Section 800.14, the process for Section 106 compliance must follow the steps of the regular process (36 CFR Sections 800.3 through 800.7).
Agencies with projects that are fully or partially funded by the Recovery Act may want to explore program alternatives to Section 106 compliance found under 36 CFR Section 800.14, particularly if such projects face deadlines that may be difficult to meet under the regular Section 106 process. Guidance on those program alternatives can be found at our website at www.achp.gov/progalt. The tighter the time constraint on a project, the sooner the agency should start coordinating a possible program alternative. Opportunities for expediting Section 106 reviews through program alternatives may focus on local, state, or regional geographic areas and be executed by headquarters or agency regional or field offices, based on agency protocols. Agencies must recognize, however, that it takes time to develop a program alternative. This tool may be more suitable for projects not likely to come on line until FY 2010.
The ACHP’s participation in the Section 106 review process is defined in the Section 106 regulations and can be either advisory or formal. Agencies and other stakeholders can consult with the ACHP during the early stages of project planning or when there is a need to interpret 36 CFR Part 800 or resolve a dispute regarding the identification and evaluation if historic properties or the assessment of effects. In addition, the ACHP may assume a more formal role when a program or project will result in adverse effects to historic properties. Agencies are reminded that they must notify the ACHP of projects that may result in an adverse effect even if they believe that it is routine in nature and adverse effects can be easily resolved.
9. How should agencies involve the general public in the Section 106 review process to ensure that their views are considered while expediting Recovery Act funded programs and projects?
Each Executive Branch agency has public participation guidelines for compliance NEPA. The Section 106 regulations encourage agencies to use such NEPA guidelines to meet their public involvement requirements for Section 106.
The participation of “consulting parties,” as opposed to the general public, is defined in the Section 106 regulations or the applicable program alternative under 36 CFR Section 800.14. Since Section 106 is a consultative process that is predicated on negotiating issues to reach an acceptable outcome, agencies may need to convene meetings, teleconferences, or have site visits to facilitate the consultation process. Given the need for agencies to expeditiously implement Recovery Act projects and activities, they are encouraged make sure that, early in the process, they identify the level of interest regarding historic properties, and identify and invite consulting parties to participate in the Section 106 review. Overtures to consulting parties should clearly indicate when a project is covered under the Recovery Act and include a project schedule that specifies milestones, proposed meeting dates, and target dates for concluding NEPA and Section 106 reviews.
10. How will the ACHP share best practices, innovative Section 106 compliance strategies, i.e. e-filings, program alternatives, and model documents, with agencies managing Recovery Act programs and projects?
Agencies should regularly refer to the ACHP’s Web site for updates on which agencies have negotiated Section 106 compliance strategies, executed agreement documents, developed program alternatives, or have worked out unique arrangements with SHPOs, THPOs, Indian Tribes, and NHOs within the regular Section 106 process. The ACHP will routinely notify agency Federal Preservation Officers (FPOs) with updated information on Section 106 compliance for Recovery Act projects. In addition, the ACHP will highlight examples of how Recovery Act programs have resulted in noteworthy preservation outcomes in urban and rural areas of the nation.
Updated April 14, 2009