Section 106 and Coronavirus Impacts
This page includes information about working with the Section 106 review process in light of impacts from the coronavirus (COVID-19) outbreak. Please note the posting date, as information may have been recently updated.
Please communicate directly with the ACHP on all Section 106 matters via phone or email and submit new notices of adverse effect through e106 to allow for timely responses while the ACHP staff teleworks. Please refrain from mailing duplicate hard copies of any materials sent via electronic mail to the e106 system or ACHP staff.
Any requests for reviews of no adverse effect findings sent to the ACHP offices via hard copy only will likely require us to extend our response period by an additional 15 days, per 36 C.F.R. 800.5(c)(3).
Agencies should also attempt to communicate electronically with other Section 106 stakeholders, including SHPOs/THPOs, Indian tribes, NHOs, and other consulting parties consistent with their capacity and stated willingness to do so. Discretion about whether to accept electronic submissions remains with each SHPO and THPO, but the ACHP is available to answer questions about Section 106 requirements when challenges are encountered.
E106 and Notices to the ACHP
When a federal agency is required to notify the ACHP of an adverse effect finding (36 C.F.R. 800.6(a)(1)), we strongly urge agency officials to provide documentation through our Electronic Section 106 Documentation Submittal System (e106). The system allows for receipt acknowledgment and quicker turnaround times, since materials are not delayed by standard mailing times. Attachments such as a cover letter, reports, maps, and responses/summaries of consulting party comments can and should be included.
Section 106 Timeframes
Extraordinary circumstances during the pandemic may warrant case by case adjustments to managing Section 106 reviews. Early in the COVID-19 outbreak, some offices were ordered to close or could not operate due to circumstances related to the pandemic. At that time, the ACHP posted the following advice regarding the Section 106 process:
The Section 106 deadlines for the response of State and Tribal Historic Preservation Officers, and Indian tribes and Native Hawaiian organizations (NHOs) that attach religious and cultural significance to historic properties affected by the undertaking, regardless of its location (collectively, states/tribes/NHOs), will be considered paused while, due to the COVID-19 outbreak, an office is closed or work conditions are such that the states/tribes/NHOs are unable to carry out their Section 106 duties or statutory rights to consultation in a timely fashion (e.g., staff unavailability due to health reasons; restricted access to records; state or tribal laws requiring hard copy records; lack of Internet access or telework capabilities). The clock will resume once the conditions are no longer in effect.
While states/tribes/NHOs are encouraged to notify federal agencies when they are operating under such conditions, federal agencies should make an effort to directly reach out to states/tribes/NHO offices to assess their status. For instance, offices that are already closed may not be able to provide notifications. Federal agencies should assume the Section 106 clock is paused regarding states/tribes/NHO offices where:
- they know from official state or tribal announcements that the state or tribe has closed down its office;
- the spreadsheet provided by NCSHPO on its website under Federal Preservation Project Review--SHPO Operating Status indicates the office is closed or its work conditions are such that the State Historic Preservation Officer (SHPO) is unable to carry out its Section 106 duties; or
- the outgoing voicemail message, or automatic e-mail reply, of the states/tribes/NHO office indicates that the office is closed or operating under significantly limited hours/staff.
If the Section 106 clock is paused under such circumstances and this presents a serious problem for a federal agency, it should contact the ACHP for assistance.
The ACHP strongly encourages federal agencies to be flexible with Section 106 deadlines when they have reason to believe the relevant consulting parties may be facing challenges in meeting such deadlines due to the outbreak. Particular attention should be given to those parties such as Indian tribes, Tribal Historic Preservation Officers (THPOs), and NHOs that may have limited capacity to participate even under normal conditions. Many of them are focusing their resources at present on dealing with critical health and safety issues. It is also important for federal agencies to remember that their responsibility to consult with any Indian tribe or NHO that attaches religious and cultural significance to a historic property that may be affected by an undertaking is a statutory requirement. Where possible, agencies should attempt to establish contact with states/tribes/NHOs that are having difficulties to facilitate communication and, if possible, provide assistance for their participation. Because this is an evolving situation, it is recommended that agencies attempt to contact the relevant state/tribe/NHO at various intervals to learn about any changes in operating status.
ACHP Assistance During SHPO/THPO, Tribal, NHO Office Closures
If an agency encounters circumstances where a SHPO/THPO/tribe/NHO has closed or is otherwise unable to respond, and the pausing of the deadlines is posing an immediate problem for the agency in conducting its Section 106 review for a priority project, the agency should contact the ACHP staff for advice and assistance. While each case may present its own unique circumstances and challenges, the following is general advice on relevant considerations and ways the ACHP may assist.
Before contacting the ACHP, agencies should consider:
- Has the agency attempted to ascertain whether the SHPO/THPO/tribe/NHO retains some capacity for project communication?
- Is the project part of a response to the COVID-19 emergency or other declared disasters to which the 36 CFR 800.12 review procedures apply? If so, the mentioned SHPO/THPO/tribe/NHO pausing of review timelines is inapplicable.
- Is this project a high priority for the agency? Is this project mission critical? Are there any budget constraints that would affect the review schedule or project implementation?
- What is the deadline? How much flexibility exists in the project schedule to wait for a response or consultation opportunity?
- Is the SHPO/THPO/tribe/NHO inaccessibility the only factor delaying the project planning process right now? What other environmental reviews or agency procedures might be delayed? Are there any opportunities to coordinate or streamline environmental reviews? Is the project itself delayed due to COVID-19-related lack of resources, workers, or access to the project site due to state or local emergency restrictions?
- Has tribal or NHO consultation already been initiated? At what stage in the consultation process is the review?
An agency may wish to contact the ACHP if it is unable to obtain a SHPO/THPO response to a determination of eligibility or a finding of no historic properties affected or no adverse effect. The agency does not need to wait 30 days to come to the ACHP in these situations when a SHPO/THPO office is closed. As always, the regulations give the ACHP the ability to review and comment on these findings.
Should a federal agency determine after applying the ACHP’s advice that a Section 106 review must proceed on a high priority undertaking, it should consult the ACHP on steps that may be taken to advance the review.
If an agency is at the point of executing a Section 106 agreement document and the SHPO is closed or otherwise withdraws from consultation, the agency should seek the advice of the ACHP about whether the circumstances would constitute the SHPO terminating consultation, allowing the agency and the ACHP to sign such an agreement without the SHPO. If the final agreement pertains to an undertaking that would occur on or affect historic properties located on tribal lands, and the relevant THPO or tribe’s office is closed, the agency should consult with the ACHP on next steps. The ACHP is unable to execute any agreement on tribal lands without the signature of the tribe. If the agency believes that it must proceed in such a situation to conclude Section 106 on a high priority undertaking, the head of the agency must terminate consultation and seek the formal comments of the ACHP under section 800.7(a)(1).
Finally, remember that the ACHP must be provided an opportunity to comment on an agency’s proposed course of action for handling an emergency undertaking under 800.12(b)(2) or a post-review discovery of a historic property under 800.13(b)(3) regardless of whether the SHPO/THPO comments.
Re-Opening Following COVID-19 Disruptions
As states, Indian tribes, and local jurisdictions re-open, SHPOs, THPOs, Indian tribes, and NHOs that had closed or limited their operations in response to the pandemic should announce any changes in their operating status and its implications for their participation in paused and forthcoming Section 106 reviews.
The ACHP understands that there may be a significant backlog in the number of reviews awaiting state and tribal input. Where individual notifications to federal agencies are not practical, the ACHP suggests the SHPO, THPO, tribal or NHO office consider posting a notice on its website and/or recording a telephone message providing general information about the office’s current status.
The ACHP encourages federal agencies to regularly check the operating status of consulting parties and to be flexible with Section 106 deadlines as offices re-open.
Consulting with the ACHP on Ongoing Cases
Any interaction with ACHP staff on Section 106 consultations where the ACHP is participating or providing assistance should be directed via email or telephone to the proper staff in the ACHP’s Office of Federal Agency Programs. Should you require assistance, advice, or information related to an ongoing Section 106 matter pertaining to a specific federal agency, please use this agency assignment chart to identify the ACHP point of contact. If a document must and can only be provided to us by hard copy, please contact us via email first to provide advance notice.
State Historic Preservation Office Operations
The National Conference of State Historic Preservation Officers (NCSHPO) is updating information about impacts the COVID-19 outbreak is having on SHPO operations on its homepage. Scroll down for a notice and link to SHPO Operating Status under Federal Preservation Project Review--Section 106.
Federal Agency Program Updates
On April 3, 2020, the ACHP issued a blanket extension regarding the review under 36 CFR 800.12 of undertakings carried out by all federal agencies that respond to COVID-19 emergency and disaster declarations. Before that initial extension expired, it was further extended five times until it expired on May 31, 2021.
CARES Act and American Rescue Plan Act Funding
States and Indian tribes were the recipients of funding to assist in responding to the COVID-19 outbreak under the CARES Act and American Rescue Plan Act (ARP Act). In responding to questions from states and tribes about the potential applicability of Section 106 to CARES Act and ARP Act funded projects, the ACHP determined Congress mandated that these funds be given directly to states and tribes, and some agencies (such as the Department of the Treasury) acted strictly as a pass-through for funds to states or tribes. Since those agencies made no decision in providing the funds, in the ACHP's view, no Section 106 review is required.
However, CARES Act or ARP Act funded projects could be subject to the requirements of Section 106 if other federal involvement is anticipated for the same project. For instance, if the funds will be used for broadband development, an FCC license, triggering a Section 106 review for the FCC, will likely be involved. The state or local unit of government receiving the CARES Act or ARP Act funds should coordinate with any involved federal agency in determining whether a Section 106 review is required.
Funding under both these laws also supplemented some existing federal agency programs. In cases where the agency retains the ability to decide whether a project receives funding or other federal assistance, a Section 106 review would be conducted for the proposed undertaking.
Section 106 Training and Distance Learning
Free, online options are available for Section 106 training via the ACHP's eLearning Portal. A new course, What Now? Protecting Historic Properties during Disaster Response, explains the emergency procedures in the Section 106 regulations.
Six other courses are available: What is Section 106, Successfully Navigating Section 106 Review: An Orientation for Applicants, Coordinating NEPA and Section 106, Basics of NEPA and Section 106 Integration, Early Coordination with Indian Tribes for Infrastructure Projects, Native Hawaiian Organizations in the Section 106 Process, and the new Section 106 Training for Indian Tribes. Learn how to access the courses from the eLearning page. If you've already created an account, go directly to the eLearning Portal to begin today.