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Home Working with Section 106 Users Guide Section 106 and NHL Consultation
Section 106 Consultation
Involving National Historic Landmarks
The National Historic Preservation Act (NHPA) includes provisions that specifically address Federal Agencies' responsibilities when their activities involve National Historic Landmark (NHL) properties. Section 106 and its implementing regulations, "Protection of Historic Properties" (36 CFR Part 800), address Federal Agency (Agency) responsibilities when an undertaking will affect properties eligible for or listed in the National Register of Historic Places.
Section 106 requires Agencies, prior to approval of an undertaking, to "take into account" effects of an undertaking on historic properties. NHLs designated by the Secretary of Interior are included in this group. Section 110(f) of the Act also outlines the specific actions that an Agency must take when NHLs may be directly and adversely affected by an undertaking. Agencies must, "to the maximum extent possible...minimize harm" to NHLs affected by undertakings. Both Sections 106 and 110(f) also require Agencies to afford the Advisory Council on Historic Preservation a reasonable opportunity to comment on the undertaking.
The core steps in the Section 106 review process require an Agency to identify the presence of NHLs and other historic properties within the undertaking's area of potential effects and assess whether implementation of the undertaking will have an adverse effect on such properties. If it is determined that an undertaking may affect an NHL, the Agency is required to take the following actions, as set forth in 36 CFR Sections 800.6 and 800.10.
In addition to complying with the requirements of Section 106, Agencies should consider the revised guidance set forth in the Section 110 Guidelines published by the National Park Service (NPS).1 Standard 4 of the guidance applies to the Federal agency project planning, and provides a very useful summary of factors that should be considered when planning undertakings that involve NHLs.
STANDARD 4. An agency gives historic properties full consideration when planning or considering approval of any action that might affect such properties. [Sec. 110(a)(2)(B),(C), and (E), and Sec. 402 (16 U.S.C. 470a-2)].
ACHP's participation in undertakings that will adversely affect historic properties is prescribed by its regulations. Once it is established by the Agency or ACHP that an undertaking will result in adverse effects on an NHL, ACHP will take the following actions.
36 CFR Part 800 provides for public participation throughout the Section 106 review process. Agencies are to provide the public with timely and complete documentation to facilitate their participation, and take appropriate steps to ensure that pertinent information is shared with consulting parties and considered during consultation. At the outset of the Section 106 review, the Agency is required to plan how and when it will involve the public. Such planning is done in consultation with the State Historic Preservation Officer (SHPO)/Tribal Historic Preservation Officer * (THPO*). Members of the public can also provide views to the Agency on their own initiative at any time, although, as part of consultation, time limits may be established for the receipt of comments.
Members of the public may request to formally participate as consulting parties in the Section 106 review when they have demonstrated interest in the undertaking, either because of a legal or economic relation to the undertaking or NHL, or because of their concern regarding effects of the undertaking on historic properties. The Agency, in consultation with the SHPO/THPO*, shall consider all such requests.
When ACHP has decided not to participate in consultation to resolve adverse effects, any individual or organization may still request ACHP to provide an advisory opinion to the Agency regarding a specific determination or decision. The public may also request ACHP to provide an opinion on the general adequacy of the Agency's compliance on a project.
NPS, on behalf of the Secretary of the Interior, is the repository of information on the location, boundaries, significance, integrity, and current condition of NHLs. The public, therefore, should contact NPS to share their views or concerns about such issues. Similarly, the public should also contact the SHPO/THPO* to discuss potential effects of an undertaking on an NHL since they are often familiar with the history of project planning and the preservation issues related to the NHL as a result of consultation with the Agency.
Should you want additional information about ACHP or the procedures for complying with Section 106, please contact:
Advisory Council on Historic Preservation
A complete list of SHPOs and tribes that have been certified under Section 101(d)(2) of NHPA can be found on ACHP's Web site under State and Tribal Programs and Links.
Information about the National Register of Historic Places and National Historic Landmarks can be found on ACHP's Web site under The National Historic Preservation Program: National Park Service.
You may also contact the National Park Service directly to obtain information about the:
National Historic Landmarks Program (phone 202-343-8175)
1The Secretary of the Interior's Standards and Guidelines for Federal Agency Historic Preservation Programs Pursuant to the National Historic Preservation Act, 63 FR 20495-2058, April 24, 1998.
Appendix A to Part 800Criteria for ACHP Involvement in Reviewing Individual Section 106 Cases
(a) Introduction. This appendix sets forth the criteria that will be used by ACHP to determine whether to enter an individual section 106 review that it normally would not be involved in.
(b) General Policy. ACHP may choose to exercise its authorities under the section 106 regulations to participate in an individual project pursuant to the following criteria. However, ACHP will not always elect to participate even though one or more of the criteria may be met.
(c) Specific Criteria. ACHP is likely to enter the section 106
process at the steps specified in the revised regulations when an
(2) Presents important questions of policy or interpretation. This may include questions about how ACHP's regulations are being applied or interpreted, including possible foreclosure or anticipatory demolition situations; situations where the outcome will set a precedent affecting ACHP policies or program goals; or the development of programmatic agreements that alter the way the section 106 process is applied to a group or type of undertakings.
(3) Has the potential for presenting procedural problems. This may include cases with substantial public controversy that is related to historic preservation issues; with disputes among or about consulting parties which ACHP's involvement could help resolve; that are involved or likely to be involved in litigation on the basis of section 106; or carried out by a Federal agency, in a State or locality, or on tribal lands where ACHP has previously identified problems with section 106 compliance pursuant to Section 800.9(d)(2).
(4) Presents issues of concern to Indian tribes or Native Hawaiian organizations. This may include cases where there have been concerns raised about the identification of, evaluation of or assessment of effects on historic properties to which an Indian tribe or Native Hawaiian organization attaches religious and cultural significance; where an Indian tribe or Native Hawaiian organization has requested ACHP involvement to assist in the resolution of adverse effects; or where there are questions relating to policy, interpretation or precedent under section 106 or its relation to other authorities, such as the Native American Graves Protection and Repatriation Act.
* The regulations define the term "THPO" as those tribes that have assumed SHPO responsibilities on their tribal lands and have been certified pursuant to Section 101(d)(2) of the NHPA. Nevertheless, remember that tribes that have not been so certified have the same consultation and concurrence rights as THPOs when the undertaking takes place, or affects historic properties, on their tribal lands. The practical difference is that during such undertakings, THPOs would be consulted in lieu of the SHPO, while non-certified tribes would be consulted in addition to the SHPO.