Infrastructure Questions and Answers
1. For what kind of infrastructure projects is compliance with Section 106 of the National Historic Preservation Act (NHPA) required?
Infrastructure projects can include the construction of facilities for a wide range of uses, such as energy production, electricity transmission, surface transportation, aviation, ports and waterways, water resource projects, broadband, and pipelines, among others. Section 106 requires federal agencies to consider the effects of projects they carry out, approve, or fund on historic properties. Consider the following questions to determine whether there is federal involvement in an infrastructure project that could trigger a Section 106 review:
- Is a federally owned or federally controlled property involved, such as a military installation, park, or forest? Will the federal property manager have to approve the location or provide right-of-way?
- Is the project receiving federal funds, grants, or loans? For instance, many bridge rehabilitation and replacement projects receive funding from the Federal Highway Administration.
- Does the project require a federal permit, license, or other approval? Projects that affect wetlands could require a U.S. Army Corps of Engineers permit, and airport projects frequently require approvals from the Federal Aviation Administration. Communications infrastructure activities may require a license from the Federal Communications Commission.
Note that a federal agency must ultimately decide if it has Section 106 review responsibilities for a given project.
2. Can a federal agency coordinate its Section 106 reviews with its National Environmental Policy Act (NEPA) reviews?
Yes. The Section 106 regulations encourage agencies to coordinate steps taken to meet the requirements of NEPA with Section 106 compliance. Coordination of the reviews should begin early in the NEPA process so that plans for public participation, analysis of alternatives and review meet the requirements of both processes. The ACHP and the Council on Environmental Quality (CEQ) issued a joint handbook on this topic to provide greater detail about how to integrate the requirements of the two reviews.
36 CFR 800.8(c) also allows for use of the NEPA process as a substitute for Section 106 when the federal agency provides advance notice to the State or Tribal Historic Preservation Officer (SHPO/THPO) and the ACHP about its intentions to proceed in that manner. In addition to this notification, the environmental documentation prepared by the federal agency must meet the standards specified in that section of the regulations and demonstrate that the steps of the Section 106 process are adequately met, including the resolution of any objections. The substitution approach, though not ideal for all projects, can enhance public engagement and the opportunity to resolve adverse effects when resource conflicts are related and when the federal agency will be actively involved in development of the NEPA document to support the substitution process.
3. Can Section 106 reviews be accelerated to meet expedited project planning and implementation timelines?
Agencies may explore program alternatives to Section 106 compliance found under 36 CFR 800.14, particularly if their projects face deadlines that may be difficult to meet under the regular Section 106 process. Guidance on those program alternatives can be found here. The tighter the time constraint, the sooner the agency should start coordinating a possible program alternative. Opportunities for expediting Section 106 reviews through program alternatives may focus on local, state, or regional geographic areas and be executed by headquarters or agency regional or field offices, based on agency protocols. While the development of large scale program alternatives may take some time, the initial investment of time in consultation with stakeholders can result in more effective and efficient reviews down the road, particularly for the implementation of programs or multiple projects.
Even when not pursuing or utilizing a program alternative, 36 CFR 800.3(g) allows federal agency officials to combine steps in the Section 106 review process, provided the SHPO/THPO agrees it is appropriate and consulting parties and the public still have an adequate chance to express their views.
4. How do I determine if an infrastructure undertaking is already subject to a program alternative?
Many federally assisted communications projects, highway and bridge reconstruction projects, energy extraction activities, and work on natural gas pipelines may be covered by existing program alternatives. See the Efficiencies tab for a list of nationwide program alternatives that apply to several infrastructure sectors, and check with any federal agency that must provide funding, licenses, permits, or other approvals to the project. You can also contact the SHPO to ask whether any statewide Section 106 program alternatives may already tailor the review process for your project.
5. At what point in project planning should development of a Programmatic Agreement for a complex or phased undertaking begin?
It is not uncommon for large-scale and complex infrastructure projects to conclude the Section 106 review process through the execution of a Programmatic Agreement (PA) when completing Section 106 prior to making a final decision on an undertaking is not practical. The regulations allow an agency to pursue a "project PA" (36 CFR § 800.14(b)(3)), rather than an MOA under certain circumstances. The most common situation is when, prior to approving the undertaking, the federal agency cannot fully determine how the project may affect historic properties or the location of historic properties and their significance and character. For instance, the agency may be required by law to make a final decision on an undertaking within a timeframe that simply cannot accommodate the standard Section 106 process, particularly when the undertaking's area of potential effects encompasses large areas of land or when the undertaking may consist of multiple activities that could adversely affect historic properties.
When an agency considers developing a complex project PA, it should inform consulting parties of its rationale and solicit their feedback as early as possible in project planning. Drafting should not begin until well after the federal agency has first identified all consulting parties and ensured they are knowledgeable about the range and scope of activities the undertaking will encompass, the range of historic properties currently known and what may still be present within the APE, and how each could be affected. Providing context so the consulting parties have a broad understanding of the undertaking will help them provide the agency with sound and relevant advice about how to resolve adverse effects in the public interest. For more information on when to draft Section 106 agreements, see the ACHP’s Guidance on Agreement Documents.
6. What are the benefits of pre-application planning when multiple agencies—federal, tribal, state or local—are involved in an infrastructure undertaking?
The extent to which the lead federal agency and the project proponent plan for and coordinate the various reviews necessary to realize an infrastructure project helps maximize the efficiency and effectiveness of Section 106 review. Pre-application coordination can identify important information up front: information needed to identify historic properties, parties who may have an interest in consulting about the effects of an undertaking, concerns about confidentiality of information that could be gathered as part of the Section 106 review, the likely level of public interest, and opportunities for engaging stakeholders and the public in project planning. Early coordination of project planning can also avoid duplication of effort when the same information may inform multiple reviews, and it allows the lead federal agency to plan to coordinate Section 106 with other required environmental reviews and authorizations, including NEPA. Finally, pre-application planning can help ensure decisions reached at one level of review do not constrain the federal agency’s ability to consider alternatives to avoid or minimize effects to historic properties, a circumstance that can create significant challenges for bringing a Section 106 review to conclusion.
7. How do I know when Section 106 review is complete?
A federal agency must conclude the Section 106 review process in accordance with the Section 106 regulations after consultation with the SHPO or THPO and other consulting parties about the agency’s findings and determinations. (See the Section 106 process flow chart.) In thousands of cases every year, Section 106 reviews end with agency determinations of “no historic properties affected” or “no adverse effect” followed by a decision to implement or approve the project with few, if any, conditions. In some circumstances where the project may adversely affect historic properties, the process concludes with the execution, and filing with the ACHP, of a Memorandum of Agreement (MOA) or a PA that documents agreed-upon measures to resolve adverse effects to historic properties.
Some agencies have entered into program alternatives (36 CFR 800.14) that tailor the Section 106 review process to agency program needs. Evidence of Section 106 compliance is specified by those alternatives. A list of nationwide program alternatives that are in place is on the ACHP’s web site.
Finally, in extremely rare circumstances, the ACHP issues advisory comments to the head of the relevant federal agency. The head of the agency considers these comments and responds, evidencing compliance with Section 106, before making a final decision about the project.
8. How should agencies involve SHPOs/THPOs and Indian tribes in the Section 106 review process to ensure their views are considered while expediting infrastructure projects?
State and Tribal Historic Preservation Officers (SHPOs/THPOs) administer the national historic preservation program at the state and tribal government levels and consult with federal agencies during Section 106 review. SHPOs, and THPOs for undertakings on tribal land, are the federal agency’s primary partner in the Section 106 process and among the first contacts the agency will make as part of initiating a Section 106 review. SHPOs and THPOs also consult with an agency to help identify other parties who should participate in the review process.
Federal agencies consult with Indian tribes in the Section 106 review process when planned undertakings could affect historic properties on tribal land or any properties of religious and cultural significance to tribes located off tribal land. Often properties off tribal lands and significant to a tribe are located on the ancestral lands of the tribe, which may be quite distant from the tribe’s current location. Consultation with Indian tribes must acknowledge the federal government’s government-to-government relationship with tribes, and these responsibilities cannot be unilaterally delegated to a non-federal entity.
It is important that Indian tribes are involved early in project planning, when their special expertise can inform agency decision-making about identification efforts and the assessment of effects as well as the resolution of any adverse effects to historic properties. Tribal involvement in pre-application processes and planning can provide valuable opportunities for early coordination so long as individual tribes consent in advance to working directly with an applicant for a federal permit, license, or assistance. For more on consulting with Indian tribes in the Section 106 process, see Consultation with Indian Tribes in the Section 106 Review Process: A Handbook.
Federal agencies seek the views of the appropriate SHPO/THPO and Indian tribes when identifying historic properties and assessing effects of an undertaking on historic properties. Agencies also consult with SHPOs/THPOs and Indian tribes when resolving adverse effects and developing MOAs. The Section 106 regulations often specify that the agency official makes a decision “in consultation with the SHPO/THPO.” This relationship is important to keep in mind during Section 106 reviews. Developing an ongoing working relationship with the SHPO/THPO and Indian tribes can improve an agency’s compliance efforts.
9. How should agencies involve other participants, including other consulting parties and the general public, in the Section 106 review process for infrastructure projects to ensure their views are considered?
The participation of “consulting parties,” as opposed to the general public, is defined in the Section 106 regulations or the applicable program alternative under 36 CFR 800.14. Since Section 106 is a consultative process predicated on negotiating issues to reach an acceptable outcome, agencies may need to convene meetings, teleconferences, or have site visits to facilitate the consultation process. Agencies are encouraged make sure they identify the level of interest in historic properties early in the process and identify and invite consulting parties to participate in the Section 106 review. A best practice is to include a project schedule that specifies milestones, proposed meeting dates, and target dates for concluding NEPA and Section 106 reviews in an agency’s invitation to consult.
Public involvement efforts vary according to agency procedures, the scope and nature of the undertaking, and the level of likely public interest. Each Executive Branch agency has public participation guidelines for compliance with NEPA. The Section 106 regulations encourage agencies to use such NEPA guidelines to meet their public involvement requirements for Section 106.
10. How are consulting parties’ concerns considered during the Section 106 review for an infrastructure project?
Consulting parties provide their views to the federal agency in the Section 106 process to inform the agency’s identification of historic properties, assessment of effects, and analysis of alternatives to avoid, minimize, or mitigate any adverse effects. Often consultation involves participants with a wide variety of concerns and goals. Effective consultation occurs when consulting parties keep an open mind about the project and consider a wide range of options; state their interests clearly; acknowledge and seek to understand others’ interests; look for shared goals and options that allow for mutual gain; and bring forward solutions that meet the federal agency’s mission needs. Creative ideas about alternatives—not complaints—make for the most effective consultation. Consulting parties should strive to provide responses to a federal agency’s request for review or feedback that are timely and in writing.
11. How can the ACHP, which oversees Section 106 of the NHPA and its implementing regulations found at 36 CFR Part 800, help?
Agencies and other stakeholders can seek the ACHP’s advice during any stage of project planning or when there is a need to interpret 36 CFR Part 800 or resolve a dispute regarding the identification and evaluation of historic properties or the assessment of effects. In addition, the ACHP can assume a more formal role when a program or project may result in adverse effects to historic properties and the ACHP chooses to participate in consultation. Federal agencies must notify the ACHP of projects that may result in adverse effects even if they believe the project is routine in nature and adverse effects can be easily resolved. Your SHPO or THPO is also a good source of information about Section 106 review.
The ACHP offers numerous training opportunities for those who want to learn more about Section 106. To contact the ACHP, please use the staff contact list to reach the reviewer who works with the relevant federal agency involved in an infrastructure undertaking.