Section 106 of the National Historic Preservation Act requires federal agencies to conduct a historic preservation review whenever they carry out, license, permit, approve, or assist a project that has the potential to affect historic properties. Often, federal projects are accomplished by nonfederal parties who receive the federal license, permit, approval, or financial assistance. These nonfederal parties are called “applicants” in the Section 106 regulations, and there is a provision [see: 36 CFR 800.2(c)(4)] that allows a federal agency to authorize an applicant or group of applicants to initiate consultation with the State Historic Preservation Officer (SHPO) and/or Tribal Historic Preservation Officer (THPO), and other consulting parties. However, the federal agency remains responsible for all Section 106 findings and determinations even when an applicant initiates consultation.

If the federal agency decides to authorize an applicant to initiate consultation for a particular undertaking, it must provide written notice to the SHPO(s) and/or THPO(s) with whom the applicant would initiate Section 106 consultation. Without such notice from the agency, a SHPO or THPO might not know that contact, or submittal of Section 106 documentation from an applicant, has been formally authorized by the lead federal agency.

In the case of federal program-level authorizations, providing notice means informing every SHPO and THPO if the program is nationwide. These written notifications are often referred to as “authorization memos.” They contain specific direction about what the federal agency asks applicants to do on its behalf and under what circumstances the federal agency will step in to resume management of the Section 106 review.

While authorization of applicants to initiate consultation is often considered an effective way to carry out Section 106 reviews, it does not change the requirements of the Section 106 process. Documentation standards and the review timeframes specified at various steps in the Section 106 process still apply, and it is important that determinations of eligibility and effect findings are formal and explicit and reference the federal agency’s authorization to its applicant if the applicant transmits them. It is also imperative that the federal agency provide clear instructions to applicants, so that they understand their role and responsibilities within the Section 106 process.

Federal agencies have a statutory responsibility for consultation with federally recognized Indian Tribes and Native Hawaiian Organizations (NHOs) with an expressed interest in an undertaking undergoing a Section 106 review. Applicants or other nonfederal parties cannot consult with Indian Tribes on behalf of the agency unless an individual Indian Tribe agrees to the arrangement and informs the federal agency of its preferences. The ACHP has prepared guidance regarding Limitations on the Delegation of Authority by Federal Agencies to Initiate Tribal Consultation under Section 106 of the National Historic Preservation Act.

See also additional ACHP guidance on the topic of applicant authorization, including the Section 106 Applicant Toolkit and the recently updated, free eLearning course Successfully Navigating Section 106 Review: An Orientation for Applicants.