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Home Section 106 Disaster Response Planning FAQ
In response to recent catastrophic events across the country, such as flooding, snow, ice, hurricanes, tornados, and fires, the Advisory Council on Historic Preservation (ACHP) has prepared the following Frequently Asked Questions (FAQs) to assist State Historic Preservation Officers (SHPOs), Tribal Historic Preservation Officers (THPOs), federal agencies, and other historic preservation partners in addressing Section 106 requirements during disaster response efforts. These FAQs explain the Section 106 process in the context of disaster and emergency response as defined in 36 CFR § 800.12. (www.achp.gov/regs-rev04.pdf) In that context, these FAQs also describe the coordination and timing of compliance actions in the immediate aftermath of an event, and clarify the roles and responsibilities of relevant agencies and consulting parties under Section 106.
Section 106 of the National Historic Preservation Act (NHPA) requires federal agencies to consider the potential impacts of projects they carry out, assist, or permit on historic properties. The Section 106 implementing regulations, ‘Protection of Historic Properties’ (36 CFR Part 800), encourage federal agencies to establish agency procedures or to provide stipulations in a Programmatic Agreement that consider historic properties during operations that respond to a disaster or emergency declared by the President, a tribal government, or the governor of a state or to other immediate threats to life or property. Where such agency procedures or Programmatic Agreements have not been established, federal agencies and their licensees, permittees, or grantees must follow 36 CFR § 800.12(b).
In responding to a disaster or emergency, the ACHP encourages all parties to be flexible and to consider the broader public interest when looking for ways to protect historic properties. Ideally, the plans that are developed will not impede necessary response actions. Nevertheless, the ACHP remains available to offer further assistance when needed, and particularly in developing agency procedures for addressing emergencies.
Do Section 106 and the implementing regulations make any special provision for disaster response and recovery?
Yes. 36 CFR § 800.12 sets forth a process for prior federal agency planning for disasters and emergencies through the development of agency procedures and specific stipulations in Programmatic Agreements, and for those response situations where the agency has not developed agency procedures or there is no relevant and applicable Programmatic Agreement in place.
When would Section 106 apply in a disaster or emergency situation?
In determining whether a federal agency* has any Section 106 responsibilities, the agency must first determine whether it will be carrying out, assisting, or permitting an undertaking with the potential to affect historic properties in response to or as a result of a disaster or emergency. This may include construction staging, temporary storage, building access routes, building stabilization, and other associated actions. If the agency has an undertaking with such potential in its hands, Section 106 will apply. However, as explained two questions below, certain response undertakings are exempt from Section 106.
*Under certain Department of Housing and Urban Development and Federal Highway Administration programs, a state, local, or tribal government may take over the federal agency role for Section 106 compliance. See http://portal.hud.gov/hudportal/HUD?src=/program_offices/comm_planning/environment/review/qa/entities, http://www.fhwa.dot.gov/hep/6004qa.htm, and http://edocket.access.gpo.gov/2007/E7-2375.htm for more information.
What constitutes a disaster or emergency situation for purposes of Section 106?
A disaster or emergency under Section 106 is one declared by the President, tribal government, or the governor of a state or other immediate threat to life or property (36 CFR § 800.12(a)). The emergency situations section of the Section 106 regulations applies only to undertakings that will be implemented in response to the disaster or emergency within 30 days after the disaster or emergency has been formally declared by the appropriate authority or, in the case of another immediate threat to life or property, within 30 days after such an event occurs.
Are there specific federal programs designed to deal with disasters?
Several federal statutes and programs establish disaster response operations that may influence an agency’s actions and subsequent Section 106 responsibilities, such as the following:
Where federal actions, funding, permits, or licenses are required to respond to a disaster pursuant to these statutes and programs, certain Section 106 obligations may be triggered.
Are any response actions exempt from the provisions of Section 106?
Yes. Immediate rescue and salvage operations conducted to preserve life or property are exempt from the provisions of Section 106 (36 CFR § 800.12(d)). This exemption applies regardless of whether there has been a declared disaster or emergency. The agency determines whether its undertaking meets the criteria for this exemption. The regulations implementing Section 106 allow agencies to take necessary actions in a timely manner to address public health and safety.
When the agency becomes aware of a disaster or emergency situation, it exercises its judgment to determine whether its action is in response to that situation and:
A few examples of exempt responses are replacement of collapsed bridges in an active evacuation route; any actions to stop or slow down an existing fire from spreading (though planned, controlled fires are subject to Section 106); and removal of debris or portions of a building to reach trapped persons.
Examples of likely non-exempt responses are cleanup activities after a tornado has passed; permanent replacement of utilities damaged by a disaster; and repair of buildings and structures that have been damaged by a disaster but are not endangering people or other properties. Where a community considers demolishing damaged structures following a disaster or emergency event, and where receipt of federal funds for such demolition is likely, it is important for both the potential federal funder as well as the community to consider possible Section 106 implications.
Can a federal agency waive its Section 106 responsibilities?
No. While some undertakings are exempt from Section 106 in certain situations (see previous question), a federal agency cannot waive its Section 106 responsibilities for taking into account the effects of emergency activities on properties included in or eligible for the National Register of Historic Places and affording the ACHP an opportunity to comment on such activities.
Federal agencies do have the authority to request a waiver of their Section 110 responsibilities under the NHPA. 36 CFR § 78.3(a) states that when a federal agency head determines, under extraordinary circumstances, that there is an imminent threat of a major natural disaster or an imminent threat to the national security such that an emergency action is necessary to the preservation of human life or property, and that such emergency action would be impeded if the federal agency were to concurrently meet its historic preservation responsibilities under Section 110 of the NHPA, that federal agency head may immediately waive all or part of those responsibilities. This waiver requires that the agency head meet other relevant requirements, such as Section 106, and implement such measures or procedures as are possible in the circumstances to avoid or minimize harm to historic properties.
How long do the emergency situation provisions of 36 CFR § 800.12 apply?
The emergency situation provisions of the Section 106 regulations apply for 30 days after the disaster or emergency has been formally declared by the appropriate authority or, in the case of other immediate threats to life or property, within 30 days after such an event occurs. Therefore, to utilize the emergency situation provisions, undertakings responding to the disaster or emergency must be implemented within that 30-day period. An agency may request an extension of the period of applicability from the ACHP prior to the expiration of the 30 days. The ACHP anticipates that such requests would propose a reasonable and limited extension, generally lasting no more than six months.
When is the Section 106 process for disaster or emergency response actions completed?
There may be uncertainty in when and/or how the Section 106 process for disaster or emergency response actions is completed. The ACHP encourages flexibility and creativity in addressing the requirements of Section 106 in these situations.
If there are no agency procedures or agreements in place prior to a disaster or emergency, the federal agency notifies the SHPO/THPO, any Indian tribe or Native Hawaiian organization (NHo) that may attach religious and cultural significance to historic properties likely to be affected, and the ACHP prior to the undertaking and provides them an opportunity to comment within seven days, or less depending on the circumstances, of notification. After this comment period, the federal agency concludes the Section 106 process by making a final decision on its proposed action. Where feasible, and possibly after the response action has commenced, the agency should notify the SHPO/THPO and any Indian tribes or NHos of its final decision.
Where an agency has procedures in place, those procedures may delineate how the Section 106 process in an emergency or disaster situation is concluded. Further, the creation and use of Programmatic Agreements often can provide the most efficient process to comply with Section 106 because they can tailor the process to individual, specific situations, and set forth a process for concluding Section 106 compliance. For example, where a broad area has been affected by a disaster or emergency, a federal agency might consider a phased approach to its response actions as delineated in the Programmatic Agreement. Such an approach might allow certain activities to move forward where there will be no impact to historic properties while consultation proceeds on those parts of the response that would impact historic properties.
In all cases, the Section 106 process must be completed prior to the approval of the expenditure of any federal funds on the undertaking or prior to the issuance of any federal license or permit. This does not prohibit the agency official from conducting or authorizing nondestructive project planning activities before completing compliance with Section 106, provided that such actions do not restrict the subsequent consideration of alternatives to avoid, minimize, or mitigate the undertaking’s adverse effects on historic properties (36 CFR § 800.1(c)).
What happens once the “emergency” response phase to the disaster is over?
The ACHP recognizes that often the transition from response to recovery may last longer than anticipated. Unless the federal agency is operating under an existing Section 106 agreement or has sought and received an extension to operate under emergency procedures from the ACHP, once the response phase is over, the federal agency should comply with the standard Section 106 process for its recovery actions. This compliance, however, may be further tailored to agency and situation needs through the development of a program alternative, such as a Programmatic Agreement.
Due to the expedited review and consultation that typically takes place prior to the undertaking commencing, post-disaster response and recovery actions should include monitoring and reporting on impacts to historic properties, the effectiveness of avoidance and minimization measures, and schedules for completion or milestones for mitigation measures. This information should be shared with the relevant SHPO(s)/THPO(s), Indian tribes, NHos, and the ACHP. Post-disaster property management may involve responsibilities for both land managing and assistance agencies.
What are the federal agency’s responsibilities regarding Section 106 prior to and during a disaster or emergency situation?
Prior to a disaster or emergency, the federal agency should include consideration of historic properties in its planning efforts. The ACHP encourages agencies to develop agency procedures in advance pursuant to 36 CFR § 800.12(a) to address disasters and emergencies, and/or include stipulations for considering historic properties in disaster or emergency situations in relevant Section 106 Programmatic Agreements. If a federal agency has developed such agency procedures for Section 106 compliance and received the approval of the ACHP for them, or provisions exist in a relevant Programmatic Agreement to consider historic properties in emergency situations, the agency should follow those procedures or provisions. This type of prior planning can save time and resources during response actions. The agency should also provide for contingencies since disaster response actions may be fluid.
If there are no separate agency procedures approved by the ACHP or existing Programmatic Agreements to guide disaster or emergency response actions, the federal agency may follow the provisions of 36 CFR § 800.12(b)(2). Under those provisions, the agency must identify and notify the relevant SHPO or THPO, any Indian tribe or NHo that attaches religious and cultural significance to historic properties likely to be affected by the undertaking, and the ACHP. The agency should determine whether the circumstances of the disaster or emergency impose additional time restrictions on the seven-day comment period, and if so, notify the SHPO or THPO, Indian tribes or NHos, and the ACHP and invite any comments within the time available. The agency should include information on its proposed response action, the potential effects to historic properties, and a description of the avoidance, minimization, or mitigation measures, if any, for the effects of its undertaking on historic properties in the notification.
Who needs to be involved in the Section 106 process for a disaster or emergency response?
The federal agency official, an individual with approval authority for the undertaking and who can commit the federal agency to take appropriate action for a specific undertaking, needs to be involved in a leadership role during the Section 106 process. Their participation is critical. The agency official may be a state, local, or tribal government official who has been delegated legal responsibility for compliance with Section 106 in accordance with a federal statute (see footnote 1).
Federal agencies may designate a lead federal agency for Section 106 compliance purposes where more than one federal agency is involved in an undertaking (36 CFR § 800.2(a)(2)). The designation of a lead federal agency shall identify the appropriate official to serve as the agency official who will act on behalf of all the coordinating agencies, fulfilling their collective responsibilities under Section 106. Those federal agencies that do not designate a lead federal agency remain individually responsible for their compliance with Section 106.
The federal agency must notify and invite the following parties to consult on undertakings responding to a disaster or emergency: the relevant SHPO and/or THPO, Indian tribes or NHos that may attach religious and cultural significance to affected historic properties, and the ACHP. The agency should, where feasible, notify applicants for federal assistance, licenses, or permits, and representatives of local governments. Affected residents should be informed and consulted as much as possible, recognizing that some may have been relocated due to the emergency or disaster.
Where the proposed response action will clearly have an adverse effect on a historic property, such as the proposed demolition of a historic structure, federal agencies and their applicants should include the SHPO and other relevant preservation experts as early as possible in the consultation process.
In addition, certain individuals and organizations with a demonstrated interest in the undertaking may participate as consulting parties due to the nature of their legal or economic relation to the undertaking or affected properties, or their concern with the undertaking’s affects on historic properties. Where feasible in light of the circumstances of the disaster or emergency response, the federal agency should consult with the SHPO/THPO to identify any other potential consulting parties, including state and national organizations, and invite them to consult.
What is the role of the SHPO during a disaster or emergency response?
The SHPO may have multiple responsibilities during a disaster response, including enforcement of state historic preservation and environmental review laws (which may include their own special provisions for emergencies) as well as responsibilities under Section 106. The SHPO should be the federal agency’s primary point of contact for all agency actions involving or affecting historic properties in that state during a disaster or emergency response. It is essential for SHPO staff to be included in the response planning, and closely consulted on the development of recovery plans. The SHPO maintains databases and information that can help locate and identify historic properties within the impacted area. While not the central or sole source for this information, the SHPO may also be able to provide additional information regarding tribal or Native Hawaiian interests in historic properties and help facilitate an agency’s outreach to Indian tribes or NHos.
What is the role of the THPO during a disaster or emergency response on tribal lands?
The federal agency must consult with Indian tribes regarding undertakings occurring on or affecting historic properties on tribal lands. Where an Indian tribe has a designated THPO, the federal agency should contact the THPO regarding all agency actions involving or affecting historic properties on tribal lands during a disaster or emergency response. The THPO may also have multiple responsibilities during a disaster response, including enforcement of tribal historic preservation and environmental review laws as well as responsibilities under Section 106. It is essential for THPO staff to be included in the response planning, and closely consulted on the development of recovery plans. The THPO may maintain databases and other information that can help locate and identify historic properties within the impacted area. The THPO may also be able to provide information regarding tribal interests in historic properties off tribal lands and help facilitate an agency’s outreach to other Indian tribes.
When an Indian tribe does not have a THPO, the federal agency official should consult with a representative designated by the Indian tribe in addition to the SHPO regarding undertakings occurring on or affecting historic properties on its tribal lands.
What is the role of Indian tribes or Native Hawaiian organizations during a disaster or emergency response?
The federal agency must consult with Indian tribes and NHos regarding undertakings that may affect a historic property to which the Indian tribe or NHo attaches religious and cultural significance. This includes historic properties located off tribal lands. Indian tribes and NHos possess unique expertise regarding historic properties of religious and cultural significance to them that can and should inform response efforts. Because many tribes or NHos may be interested in all parts of the response and recovery actions, the federal agency should notify them as early as possible in the process. The agency should ensure that Indian tribes and NHos are kept informed and, where possible, provided with multiple opportunities to visit affected sites and monitor actions that affect historic properties of significance to them. It is important to note that the Indian tribe may select the THPO, or it may select another individual, to represent tribal interests off tribal lands during an emergency situation.
Federal agencies should also be aware that frequently historic properties of religious and cultural significance are located on ancestral, aboriginal, or ceded lands of Indian tribes. Agencies may not limit tribal consultation to those undertakings affecting tribal lands or to those tribes currently located within the state boundaries. In Hawaii, agencies should be aware that NHos may not currently reside on the island containing a historic property to which its members attach religious and cultural significance. Many federal agencies have developed consultation protocols with Indian tribes and NHos pursuant to 36 CFR § 800.2(c)(2)(ii)(E). Where such a protocol exists, the agency should follow any emergency provisions as stated in that protocol for its consultation with the Indian tribe or NHo.
What is the role of the ACHP during a disaster or emergency response?
The ACHP provides oversight for the Section 106 process, including those steps outlined in 36 CFR § 800.12. Where the ACHP’s role has been defined in agency procedures developed pursuant to 36 CFR § 800.12(a) for compliance with Section 106, or in a Programmatic Agreement that provides specific stipulations for considering historic properties in emergency situations, the ACHP will operate in accordance with those provisions. The ACHP can provide advice and assistance to an agency in the development of agency procedures and Programmatic Agreements. The ACHP would also play an approval role in the case of agency procedures.
In the absence of such agency procedures or Programmatic Agreement, the ACHP must be notified when a federal agency decides to follow the expedited review process as described in 36 CFR § 800.12(b)(2). The ACHP, like some other federal agencies, can be directed by FEMA to complete a specified task under the Stafford Act, but that does not occur often due to limited staffing. The ACHP is available to answer questions and provide technical assistance to all parties in the Section 106 process during a disaster or emergency situation.
What is ESF #11, and what is its relevance to Section 106 compliance?
The National Response Framework Emergency Support Functions (ESF) allow federal agencies to receive technical support in emergency situations. ESF #11, the Agriculture and Natural Resources Annex, supports state, tribal, and local authorities and other federal agency efforts to, among other things, protect natural and cultural resources and historic properties. The ACHP is a member of this group and provides technical assistance regarding an agency’s compliance with Section 106 during immediate emergency response and recovery activities affecting historic properties. The ACHP coordinates with federal agencies and other partners to identify priority disaster-specific policy initiatives, such as emergency appropriations, Programmatic Agreements, or other program alternatives to address specific disaster conditions. It is important to note, however, that ESF #11 is not specifically focused on historic preservation. ESF#11 is activated by the Secretary of Homeland Security for incidents requiring a coordinated federal response.
How should the public be notified of effects to historic properties from response actions?
The ACHP recognizes the tremendous burden on the livelihood and well-being of affected residents after a disaster. Considering the nature and complexity of the undertaking, its effects on historic properties, the likely interest of the public in those effects, confidentiality concerns of private individuals and businesses, and the relationship of the federal involvement to the undertaking, the federal agency should provide opportunities for public notification and comment where appropriate and possible. The agency official may need to engage a broader geographic region and consider the location(s) of relocated residents outside the immediate disaster area to determine the appropriate public outreach strategy.
The ACHP encourages all parties to use a variety of outreach strategies to engage the public after a disaster or emergency. Web sites, mailing lists, LISTSERVs, newspaper postings, and other methods, such as social media, could be utilized to provide information to the public. The agency official may also use the agency’s procedures for public involvement under other program requirements to engage the public.
Due to the time constraints often involved in disaster and emergency responses, a federal agency may elect to provide additional information after-the-fact to the public regarding its immediate actions and allow more time for review and comment on proposed recovery actions and long-term plans.
Because many decisions may need to be made in a very brief period of time, it is important to remember that undertakings to be implemented outside the 30-day window would be subject to the regular Section 106 process unless an extension has been granted.
What is the minimum level of consultation required when a federal agency is undertaking disaster or emergency response actions?
The scope and process for consultation may be defined in existing agency procedures as approved by the ACHP, pursuant to 36 CFR §800.12(a) or in a Programmatic Agreement. Where such procedures or agreements do not exist, at a minimum, the federal agency should notify the relevant SHPO/THPO, Indian tribes or NHos, and the ACHP of its undertaking and, to the extent known, the effects to historic properties. This notification should occur as early as possible in the response stage. These parties have seven days (or less, depending on circumstances) to comment. The federal agency then must take into account the information, opinions, and views provided through consultation in shaping its response actions.
What effects on historic properties are assessed during a disaster or emergency response?
How should Section 106 reviews be coordinated with state or tribal emergency agencies and procedures?
The ACHP recognizes that, in addition to federal laws, states and some Indian tribes have their own laws that may require environmental review and/or protection of historic properties within that state or on tribal lands. The ACHP encourages federal agencies to coordinate with the state or tribal emergency management agency, or its equivalent, in both planning and implementation of response and recovery actions (e.g., in developing a Coordinated Recovery Support Strategy under the National Disaster Recovery Framework*). Certain state or tribal laws may require additional compliance or environmental review, and may allow for coordination or integration of federal and state or tribal compliance responsibilities.
What other issues should be incorporated in emergency or disaster response plans?
While this is not an exhaustive list, a federal agency should remember that its undertakings could trigger compliance issues with additional laws and should coordinate its compliance with impacted parties as appropriate. Among other things, the removal of artifacts from federal lands without a permit is prohibited by the Archaeological Resources Protection Act. State archeological laws may prohibit the collection of artifacts from state and/or private lands. The discovery and treatment of human burials may be governed by the Native American Graves Protection and Repatriation Act and state or tribal burial laws. The curation of federal archaeological collections is controlled by 36 CFR Part 79. The agency should also note the need to protect and treat records and archives during a disaster or emergency situation.
In addition, where the agency may have property management responsibilities, the federal agency may need to reevaluate the integrity of affected historic properties once its response actions are completed.
Can sensitive information be kept confidential during a disaster or emergency response action?
Yes, sensitive information can be kept confidential during a disaster or emergency response action. While it may seem that the best solution for avoiding or minimizing impacts to historic resources during response activities is to freely share information on site locations with emergency responders, Section 304 of the NHPA provides that the head of a federal agency or other public official receiving grant assistance pursuant to the NHPA, after consultation with the Secretary of the Interior, shall withhold from public disclosure information about the location, character, or ownership of a historic property when disclosure may cause a significant invasion of privacy, risk harm to the historic property, or impede the use of a traditional religious site by practitioners. The National Park Service determines who may have access to such withheld information for the purpose of carrying out the requirements of the NHPA. As appropriate, the federal agency should also work with those holding the relevant information (whether it be the SHPO/THPO, Indian tribes or NHos, or others) to identify what information can be shared and in what format. 36 CFR § 800.11(c) provides further information on how the Secretary involves the ACHP in Section 304 considerations when such information has been developed for the purposes of compliance with Section 106 and brief guidance on other legal authorities on confidentiality.
The following is a list of several other federal, state, and non-governmental organizations’ Web sites on disaster and emergency response. This list is not intended to be exhaustive, and may be modified or supplemented.
Last updated: November 4, 2011