Since 1992, when Congress amended the National Historic Preservation Act to clarify that historic properties of religious and cultural significance to Indian tribes and Native Hawaiian organizations (NHOs) may be eligible for the National Register of Historic Places (National Register), the ACHP has seen a steady increase in the number of Section 106 reviews involving such historic properties. Improvements in federal agency consultation with Indian tribes and NHOs and greater recognition of their expertise in identifying historic properties of significance to them have likely contributed to this increase. It is equally likely that there have also been increasing development pressures in places not previously developed. An early 2011 Tribal Summit co-hosted by the ACHP in Palm Springs, California, underscored the fact that the nation’s renewed emphasis on the development and transmission of renewable energy, as well as the continued focus on conventional energy, is placing additional pressures on landscapes throughout the country, and particularly in the west.

Introduction Consultation is the heart of the Section 106 process. Federal agencies are required to identify and engage a variety of consulting parties during the steps they follow to meet their legal obligations. Principal among these consulting parties are State Historic Preservation Officers (SHPOs) and Tribal Historic Preservation Officers (THPOs). Federal agencies also have special consultation responsibilities with respect to Indian tribes and Native Hawaiian organizations (NHOs).

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.

A federal agency is allowed, in some circumstances, to delegate to its applicants the responsibility to initiate consultation pursuant to the regulations that implement Section 106 of the National Historic Preservation Act (NHPA), “Protection of Historic Properties” (36 CFR Part 800). The provision in Section 800.2(c)(4) of the regulations has been used frequently by federal agencies such as the Federal Communications Commission, the Surface Transportation Board, and the Department of Health and Human Services.

The 1992 amendments to the National Historic Preservation Act (NHPA) included provisions for Indian tribes to assume the responsibilities of the State Historic Preservation Officer (SHPO) on tribal lands, and establish the position of a Tribal Historic Preservation Officer (THPO).1 The regulations implementing Section 106 of the NHPA use the term “THPO” to mean the Tribal Historic Preservation Officer under Section 101(d)(2) of the NHPA.

This guidance has been updated. Please see Guidance on Assistance to Consulting Parties in the Section 106 Review Process.

The ACHP has received a number of inquiries regarding the Section 106 responsibilities of federal agencies with regard to the development of on and off-shore wind farms. We are specifically asked what kinds of federal actions related to the development and operation of wind farms make such projects “undertakings” subject to Section 106 of the National Historic Preservation Act (NHPA) and its implementing regulations, “Protection of Historic Properties” (36 CFR 800).

It is vitally important for federal agencies to effectively monitor the expiration dates of Section 106 memoranda of agreement or programmatic agreements (MOAs/PAs). If necessary, this includes coordinating the drafting, commenting, and execution of amendments to the duration stipulation prior to the agreement’s expiration. Once an agreement expires, it cannot be amended, even to extend its duration – quite simply, no agreement to amend exists following expiration.

Response to a question about the applicability of Section 106 to off-site borrow and disposal areas.

In response to a joint request from the House Committee on Interior and Insular Affairs, Subcommittee on National Parks and Public Lands, and the House Committee on Science, Space, and Technology, the Advisory Council on Historic Preservation undertook an analysis of preservation issues concerning Federal support for highly scientific and technical facilities. The analysis considered the appropriate role of historic preservation in decisionmaking about the operation and management of these facilities. An update is forthcoming.