The ACHP often receives inquiries regarding timing: more specifically, when do an agency’s “project planning activities” require Section 106 review? Courts have yet to rule directly on the issue, as case law to date focuses on compliance that comes “too late,” rather than sufficiently early. Awareness of the relevant regulations and approaches to answering such a question better positions agencies to avoid unnecessary delays later on.

Section 106 is triggered when a federal agency determines that it has a type of undertaking that has the potential to affect historic properties. Under the Section 106 regulations and the National Historic Preservation Act (NHPA), an “undertaking” is broadly defined as any project, activity, or program with federal agency involvement, such as those carried out by federal agencies, assisted by federal agencies, or that require a federal permit, license, or approval. Throughout their history, the Section 106 regulations have always encouraged “early as possible” consideration and compliance with Section 106. “Nondestructive project planning activities” which do not trigger Section 106 review under 36 CFR 800.1(c) are those that “do not restrict the subsequent consideration of alternatives to avoid, minimize, or mitigate the undertaking’s adverse effects on historic properties.” If alternatives are foreclosed, Section 106 review would be “rendered meaningless.”

When an agency’s “project planning activities” trigger Section 106 is a difficult point to identify in general terms, as what constitutes “planning” activities vary widely depending on an agency’s role or mission. The following discussion divides agencies into two categories: federal property managers, who operate a fairly static land or property base; and federal permitting, licensing, and assisting agencies. The former have more opportunities for familiarity with resources within their purview, whereas the latter may possess less knowledge of the historic properties that may be affected prior to receipt of a project proposal or application.

When do “planning activities” become “undertakings” that require Section 106 review? The answer is not a bright-line rule, but the result of a factors-based, tailored analysis. Essentially, it requires considering to what plans, or what kinds of plans, does Section 106 apply?

FEDERAL PROPERTY MANAGERS

 “Planning activities” avoid triggering Section 106 so long as they do not narrow the range of alternatives to avoid, minimize, or mitigate adverse effects to historic properties. For federal property managers, “planning” often includes long-term management of lands or properties under their purview. Such agencies may develop general or site-specific guidelines. Discrete shorter-term projects tend to derive from these overarching guidelines.

In this context, the federal involvement is usually the agency creating and carrying out the plan itself. The analysis then shifts to whether the activity being proposed and carried out is the type with potential to affect historic properties. When a “management plan” commits the agency to a decision regarding the use of resources or the location of a project, the agency has restricted the availability of alternatives to avoid, minimize, or mitigate adverse effects. In other words, the “management planning” constitutes an undertaking with the potential to affect historic properties that must be preceded by Section 106 compliance. Development of new “management plans,” as well as revisions, amendments, and even updates to existing ones, may be considered “management planning” undertakings.

Agencies may establish internal protocols for identifying when “management planning” triggers Section 106 and when it does not. For example, the Bureau of Land Management differentiates between “minor changes” (e.g. typographical errors) and all other changes to its management plans. The former may be effected through an efficient “maintenance” procedure that is typically not subject to Section 106 review, while substantive revisions or amendments that, again, commit the agency to a course of action would be preceded by Section 106 review.

FEDERAL PERMITTING, LICENSING, AND ASSISTANCE AGENCIES

This category of agencies is generally less involved in the development of the plan itself. In fact, it is entirely possible or even likely that an agency is unaware of a project’s specifics until the applicant delivers a proposal. There are several permutations within this framework: a federal agency may financially assist the development of a plan, to be implemented by a municipality or other non-federal entity; alternatively, a non-federal entity’s implementation of a plan may utilize federal funding or necessitate federal approval.

Where a non-federal entity is involved in development or implementation of the plan, establishing whether Section 106 applies becomes a multi-pronged analysis. First: is there federal involvement (a permit, license, approval, or assistance) provided or requested to develop or implement the plan? If so, is the project seeking federal involvement or approval of a type that has potential to affect historic properties?

If a federal agency assists in the development of a planning document that is non-binding and for information purposes only, then it is appropriate for the agency to determine that no Section 106 review is required. The “planning” activity in this situation lacks potential to affect historic properties because the federal involvement leads to the development of a planning document which is advisory or informational only, and hence does not commit to an activity that restricts the consideration of alternatives to avoid, minimize, or mitigate adverse effects. However, if the federal agency is assisting in the development of a plan that will be implemented, or the decision to implement the plan has already been made at the time of the application for federal assistance, then the agency must consider whether the project directed by the plan is of a type that has the potential to affect historic properties.

It is also important to distinguish plans which lock the agency into a certain action or set of actions, thus likely triggering Section 106, from other more general actions that do not commit the agency to a certain location or project. The Department of Housing and Urban Development’s Community Development Block Grants (CDBG) program is an illustrative example. To qualify for a CDBG, a city or county must file a Consolidated Plan (colloquially the “Con Plan”), which has a duration of three to five years. The Con Plan delineates the municipality’s overarching priorities and goals, such as “more affordable housing.” The Con Plan is carried out through Annual Action Plans, a detailed summary of discrete actions, as well as allocation of funds. The Annual Action Plan generally triggers Section 106 review; the Con Plan does not.

BEST PRACTICES

Being aware of how a planning action may affect historic properties as early as possible, particularly when such information possesses long-term utility, is the efficient choice. This will streamline and enhance not only the Section 106 process, but the project’s ultimate outcome.

It is also possible to integrate Section 106 more consistently into planning through development and execution of a Program Alternative such as a Programmatic Agreement (PA). For federal property managers, PAs for “habitual” actions (such as routine maintenance) are common. For permitting, licensing, and assisting agencies, PAs could be useful when licensing or assistance decisions must be made prior to the identification of historic properties or assessment of a proposed program’s effects.