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The National Historic Preservation Program Laws and Authorities Related to NHPA Relationship of Section 106 to Other Laws
Relationship of Section 106 to Other Laws
Federal agencies have responsibilities under a number of laws that may influence the way they carry out their Section 106 duties. Section 800.3 (b) of ACHP's regulations specifically encourages coordination of Section 106 responsibilities "with any reviews required under other authorities such as the National Environmental Policy Act, the Native American Graves Protection and Repatriation Act, the American Indian Religious Freedom Act, the Archeological Resources Protection Act, and agency-specific legislation."
However, compliance with one or more of these other statutes does not substitute for compliance with ACHP's regulations, 36 CFR Part 800, unless ACHP explicitly agrees that it does through execution of a Programmatic Agreement or approval of alternate procedures. Also, the regulations allow Federal agencies to comply with Section 106 through the use of the NEPA process and documentation, so long as the steps and standards of Section 800.8(c) of ACHP's regulations are met.
Several of the other Federal laws related to the National Historic Preservation Act (NHPA) with which agencies must comply are:
National Environmental Policy Act of 1969 (NEPA);
Archeological and Historic Preservation Act of 1974 (AHPA);
Archeological Resources Protection Act of 1979 (ARPA);
American Indian Religious Freedom Act of 1978 (AIRFA);
Native American Graves Protection and Repatriation Act
of 1990 (NAGPRA);
and Americans with Disabilities Act of 1990 (ADA).
Under NEPA, agencies have broad responsibilities to
be concerned about the impacts of their activities on the environment, including historic
properties. To an extent, NEPA addresses some of the same concerns as NHPA, for instance
regarding identification of irreversible effects.
Although Section 106 is a totally separate authority from NEPAand is not satisfied
simply by complying with NHPAit is perfectly reasonable for agencies to coordinate
studies done and documents prepared under Section 106 with those done under NEPA. ACHP's regulations provide guidance on how the NEPA and Section 106 processes can be coordinated (Section 800.8(a)). They also set forth the manner in which a Federal agency can use the NEPA process and documentation to comply with Section 106 (Section 800.8(c)).
If a project will affect historic properties that have archeological value, the
AHPA may impose additional requirements
on an agency. Notifying the Department of the Interior that you are doing something under
AHPA does not constitute compliance with Section 106.
If Federal or Indian lands are involved, ARPA may impose additional requirements on an agency. ARPA:
Acquiring an ARPA permit does not constitute compliance with Section 106.
- Prohibits unauthorized excavation on Federal and Indian lands,
- Establishes standards for permissible excavation
- Prescribes civil and criminal penalties
- Requires agencies to identify archeological sites, and
- Encourages cooperation between Federal agencies and private individuals.
AIRFA affirms the right of Native Americans to
have access to their sacred places. If a place of religious importance to American Indians
may be affected by an undertaking, AIRFA promotes consultation with Indian religious
practitioners, which may be coordinated with Section 106 consultation. Amendments to Section
101 of NHPA in 1992 strengthened the interface between AIRFA and NHPA by clarifying that:
- Properties of traditional religious and cultural importance to an Indian tribe
or Native Hawaiian organization may be determined to be eligible for inclusion on the
- In carrying out its responsibilities under Section 106, a Federal agency shall
consult with any Indian tribe or Native Hawaiian organization that attaches religious
and cultural significance to properties described in subparagraph (A). [16 U.S.C. 470a
(a)(6)(A) and (B)].
For activities on Federal lands, NAGPRA requires consultation with "appropriate"
Indian tribes (including Alaska Native villages) or Native Hawaiian organizations prior
to the intentional excavation, or removal after inadvertent discovery, of several kinds
of cultural items, including human remains and objects of cultural patrimony. For activities
on Native American or Native Hawaiian lands, which are defined in the statute, NAGPRA
requires the consent of the Indian tribe or Native Hawaiian organization prior to the
removal of cultural items. The law also provides for the repatriation of such items from
Federal agencies and federally assisted museums and other repositories.
NAGPRA defines Native American cultural items as:
In brief, NAGPRA requires agencies to:
- Human remains,
- Associated funerary objects,
- Unassociated funerary objects,
- Sacred objects, and
- Cultural patrimony.
- Inventory Native American cultural items,
- Repatriate Native American cultural items, and
- Consult with Native American groups about permits to excavate on Federal or tribal lands.
1992 amendments to NHPA strengthened NAGPRA by encouraging "protection of Native American
cultural items...and of properties of religious or cultural importance to Indian tribes,
Native Hawaiians, or other Native American groups" [Section 112(b)(3)] and by stipulating
that a Federal "...agency's procedures for compliance with Section 106...provide for the
disposition of Native American cultural items from Federal or tribal land in a manner
consistent with Section 3(c) of the Native American Graves Protection and Repatriation
Act...." [Section 110(a)(2)(E)(iii)]
The ADA requires State and local government entities
and places of public accommodation to make newly constructed buildings accessible to
individuals with disabilities. It also mandates that altered portions of existing buildings
and facilities be made readily accessible and barriers to accessibility in existing buildings
and facilities be removed when it is "readily achievable." However, if following the usual
standards would threaten or destroy the historic significance of a feature of the building,
alternative standards which are contained in "Standards for Accessible Design: Americans
with Disabilities Act Accessibility Guidelines" (ADAAG) may be used. The decision to use
alternative standards must be made in consultation with the SHPO. If, during that
consultation, it is determined that application of alternative standards would still
threaten or destroy historic significance, ACHP must be consulted.
Some agencies also have legislation specific to themselves that may influence
Section 106 review. Section 4(f) of the Department of Transportation Act,
for example, generally bars a DOT agency from using a historic property
for project purposes if there is any prudent and feasible alternative
to doing so. This is a higher standard than that imposed by Section 106,
but DOT agencies regularly coordinate their Section 4(f) review with their
Section 106 responsibilities.
Other agency-specific legislation includes the Federal Land Policy
and Management Act of 1977 (FLPMA), the National Forest Management Act
of 1976 (NFMA), and the Public Buildings Cooperative Use Act of 1976
May 1, 2002
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