The ACHP, as the agency charged with overseeing the federal historic preservation review process established by Section 106 of the National Historic Preservation Act (NHPA), has specific responsibilities regarding its participation in individual Section 106 reviews. The regulations that implement Section 106, “Protection of Historic Properties” (36 CFR Part 800) also assign key roles to State and Tribal Historic Preservation Officers (SHPOs and THPOs) and other parties. While most Section 106 reviews conducted since the current regulations were issued in 2004 have been concluded successfully without ACHP involvement, the ACHP’s participation in select individual reviews can be an important tool in fulfilling its statutory role in commenting on the effects of undertakings on historic properties. This article provides information about how and when the ACHP may join consultation, focusing on how the ACHP responds to requests for its participation from federal agencies and consulting parties.
Notification Requirements
The Section 106 regulations require a federal agency to notify the ACHP about a Section 106 consultation when it has determined its undertaking may have an adverse effect on historic properties [36 CFR 800.6(a)(1)]. The ACHP reviews these requests using the criteria in Appendix A of the Section 106 regulations to decide whether to participate in an individual Section 106 review. The Appendix A criteria apply when an undertaking:
- Has substantial impacts on important historic properties,
- Presents important questions of policy or interpretation,
- Has the potential for presenting procedural problems, or
- Presents issues of concern to Indian Tribes or Native Hawaiian Organizations.
The Section 106 regulations provide examples of circumstances that meet each of these criteria. If one or more of the criteria apply, then the ACHP may choose to participate in an individual review. The ACHP is not required, though, to participate in consultation even if one or more criteria apply. Every participation decision is evaluated by ACHP staff and management on a case-by-case basis.
Responding to Requests for Participation
The ACHP may also elect to join consultation at any point in the Section 106 review process when it “determines that its involvement is necessary to ensure that the purposes of section 106 and the act are met” [36 CFR 800.2(b)(1)]. Decisions to participate in consultation before a federal agency has arrived at a finding of adverse effect are often prompted by requests from SHPOs, THPOs, Indian Tribes or Native Hawaiian Organizations, or other consulting parties. If a federal agency, SHPO/THPO, Indian Tribe, or other consulting party contacts the ACHP to request its participation in an individual Section 106 review, the request is typically routed to the staff reviewer in the Office of Federal Agency Programs (OFAP) assigned to that federal agency. The reviewer will gather information about the project, how Section 106 consultation is progressing, who is involved, and what specific questions or issues are affecting the review. This fact-finding process often involves calls or emails to SHPO/THPO staff, federal agency staff, Tribal or Native Hawaiian representatives, and other consulting parties, and the review of relevant documentation from the Section 106 process to date. The reviewer’s intent is to determine whether the Appendix A criteria apply and whether the ACHP’s participation in consultation is needed in order for the parties to carry out a Section 106 review successfully.
If the ACHP decides to join the consultation at any point in the Section 106 process, it must notify the federal agency official and the consulting parties. It must also advise the head of the relevant federal agency of its decision to participate. Even if the ACHP initially declines, circumstances may arise during the consultation—such as the emergence of significant public controversy or procedural problems—that would warrant a request to the ACHP to reconsider its earlier decision not to participate or would provide justification for the ACHP to enter the consultation on its own initiative.
Other Forms of Assistance
Another response option is for the ACHP to provide technical assistance under the broad authority in 36 CFR 800.2(b)(2). Using this provision of the regulations, the ACHP can provide advice on the application of the Section 106 regulations, answer questions, assist in resolving disputes, and otherwise help the federal agency and its consulting parties address a variety of problems in the review process without formally joining in consultation. This provision in the regulations allows ACHP staff to provide targeted advice for specific issues and then step back so that federal agencies and consulting parties can move on with their review. Technical assistance is a significant component of the ACHP’s work in assisting all Section 106 participants in using the review process.
The ACHP encourages you to contact us if you encounter a Section 106 review in which you think the ACHP’s participation or technical assistance could help the parties use the regulations effectively and reach resolution. Current OFAP staff assignments for most federal agencies are available here with direct email and phone information. While requests for the ACHP’s participation in an individual review are usually routed to the OFAP staff reviewer assigned to the relevant federal agency, any requests directed to other offices of the ACHP, including the Office of Tribal and Indigenous Peoples, will receive the same attention and response.