Introduction

In its role overseeing the Section 106 review process the Advisory Council on Historic Preservation (ACHP) works with a range of stakeholders to ensure that Section 106 reviews are carried out effectively and without unnecessary delay. In this capacity we occasionally receive inquiries regarding the time limits that govern consultation between lead federal agencies and others in the Section 106 review process. These questions include at what points the 30-day time period in the Section 106 regulations applies to the review process, and whether each step in the four-step review process is subject to the same 30-day review period.

Knowing how and when to apply these 30-day time limits within Section 106 reviews will position federal agencies, State and Tribal Historic Preservation Officers, and others to avoid unnecessary delays by ensuring that key stakeholders are afforded important opportunities to comment within predictable and transparent timeframes. It is important to note that all references to timelines in the regulations are to calendar days.  

Regulatory Requirements

The first reference to a 30-day review period appears in the Section 106 regulations at 36 CFR § 800.3(c)(4). This timeline applies to the interactions between the lead federal agency, State Historic Preservation Officer (SHPO), and/or the Tribal Historic Preservation Officer (THPO). This section is titled “Failure of the SHPO/THPO to respond,” and states that:

If the SHPO/THPO fails to respond within 30 days of receipt of a request for review of a finding or determination, the agency official may either proceed to the next step in the process based on the finding or determination or consult with the Council in lieu of the SHPO/THPO. If the SHPO/THPO re-enters the Section 106 process, the agency official shall continue the consultation without being required to reconsider previous findings or determinations.

An important phrase in this section is responding to an agency request for review of a “finding or determination.” Findings and determinations are made at key points in the Section 106 process: for example, an agency’s finding of “no historic properties affected” or its finding of “no adverse effect to historic properties.” Other important steps in the Section 106 review process, including establishing the area of potential effects (APE) for an undertaking, identifying historic properties, consulting to resolve adverse effects, and developing a Memorandum of Agreement, are not subject to the 30-day review period, as these actions do not constitute the formal “findings and determinations” mentioned in this section of the regulations.

No Historic Properties Affected and No Adverse Effect Findings

Next, 36 CFR § 800.4(d)(1)(i-iv) addresses a finding of “no historic properties affected” and provides a 30-day review period for the SHPO/THPO to comment on this finding. The actions leading up to this finding, including consultation with the SHPO/THPO to delineate the APE, development of a plan to identify historic properties, implementation of that plan, and evaluation of historic properties for eligibility to the National Register of Historic Places are not each subject to a 30-day review period, as these steps are carried out “in consultation with” these entities.

The review of a finding of “no adverse effect” (36 CFR § 800.5(b)) also provides 30 days for SHPOs/THPOs and other consulting parties to review the agency’s documentation.

When the federal agency makes its findings and determinations at the specific steps in the process and submits the documentation to the SHPO/THPO for review, including the information specified in the regulations at 36 CFR § 800.11(d) or (e), the SHPO/THPO has 30 days following receipt of adequate information to respond to the agency about whether it agrees or disagrees. If they disagree, an explanation should be provided to the agency explaining the reasons for the disagreement (see 36 CFR § 800.5(c)(2)(i)). When a finding is not supported by the information required by the regulations, the SHPO/THPO may request additional information. Such a request should be made promptly so the federal agency understands the SHPO/THPO lacks information necessary to respond to the agency’s finding or determination. If a request for more information is made, the 30-day review period begins upon the SHPO’s/THPO’s receipt of complete documentation. Questions about what constitutes adequate documentation may be referred to the ACHP.

Reasonable Timelines for Consultation in Other Parts of the Review

The points at which 30-day review periods are specified in the regulations come at potential exit points in the process. The regulations include explicit timelines for consultation at these key points in part to allow the agency to know if it has completed its Section 106 review.

The ACHP recognizes that establishing reasonable expectations for consultation timelines in other parts of the process is also important. Regarding timelines for consultation aside from those required for “findings and determinations,” the ACHP urges federal agencies to work collaboratively with consulting parties to establish reasonable timelines for consultative interactions. The ACHP made this point when it issued the regulations in 2000, saying:

The rule indeed imposes a 30-day limit on SHPO/THPO at each step of the process where a formal response is required to findings and determinations, unless otherwise noted … there is no such clock for consultation alone (e.g., regarding APE or for seeking ways to avoid, minimize, or mitigate adverse effects)… the federal agency needs to make a reasonable effort to consult (which may or may not take 30 days) and move forward with the process.

The ACHP recognizes many SHPOs and THPOs continue to face rising workloads without significant new resources, so it urges federal agencies to work with them to ensure they have adequate time, and the proper documentation, to respond to agency requests to consult. While the regulations allow federal agencies to address multiple steps in a Section 106 review (36 CFR § 800.3(g)), such as consulting about the eligibility of a historic property at the same time an effect finding is proposed, expediting review in this way is only appropriate “where the agency official and the SHPO/THPO agree it is appropriate” and consulting parties and the public still have an opportunity to express their views. Failure by the agency to obtain this agreement prior to submitting documentation for a 30-day review of findings and determinations may result in delays.

The ACHP  urges federal agencies to explore other ways they might assist SHPOs and THPOs in addressing heavy Section 106 review workloads by providing them assistance and flexibility where possible. The ACHP is also supportive of the development of program alternatives that establish reasonable time periods for consultation with SHPOs, THPOs, and other consulting parties, and that are tailored to the specific needs and requirements of the applicable programs, projects, and activities.