All Courses, Secure qualified consultants, as needed, to help inform the federal agency’s identification and evaluation of historic properties and assessment of effects; applicants are encouraged to contact the SHPO, THPO/tribe, NHO, or trade associations for assistance in identifying appropriate consultants (the Register of Professional Archaeologists provides information on archaeologists: Coordinate with the agency to determine how existing public notification and outreach procedures may be used to facilitate Section 106 public involvement. Don't define the APE too narrowly. Likewise, the applicant should be familiar with the federal agency’s internal guidance, policies, and procedures to fully assist in the Section 106 review. A map of the APE for the Project, as determined after consultation with the consulting parties, appears as Appendix B. Section 106 of the National Historic Preservation Act Section 106 of the National Historic Preservation Act requires federal agencies to take into account the effects of their undertakings on historic properties. The Section 106 review process is an integral component of the National Historic Preservation Act (NHPA) of 1966.. Conduct any required studies to inform the development of project alternatives to avoid or minimize adverse effects. If invited by the agency, or if assigned responsibilities in the agreement, sign the MOA or PA as an invited signatory or concurring party. Read more and download application. If a project has the potential to alter characteristics that make a property historically significant, that project is considered to have an “adverse effect.” Adverse effects can be direct or indirect, and include all immediate and reasonably foreseeable effects to the property. Several federal statutes and programs establish disaster response operations that may influence an agency’s actions and subsequent Section 106 responsibilities, such as the Robert T. Stafford Disaster Relief and Emergency Assistance Act, which directs Federal Emergency Management Agency (FEMA) programs responding to a disaster or emergency declared by the President; see http://www.fema.gov/about/stafacts.htm. Types of effects on historic properties may Laws and Regulations. By law, members of the public have a voice when federal actions will affect properties that qualify for the National Register of Historic Places, the nation's official list of historic properties. What are a federal agency’s responsibilities under Section 106 of the NHPA? However, the applicant should keep the federal agency informed of these non-federal reviews, as they may be relevant to the Section 106 process, and the information developed to meet their requirements may be useful for Section 106 compliance. In order to do so, it is first necessary to define and document the area of potential effects (APE… Section 106 of the NHPA is a crucial part of that program that requires consideration of historic preservation in the many projects with federal involvement that take place every day across the nation. Is a federally owned or federally controlled property involved in the project, such as a military base, park, forest, office building, post office, or courthouse? location in the appendix of the APE map and Section 106 finding form that approves APE. We suggest moving this party over to a full size window. Section 106 of the NHPA if more than one federal agency is involved. To be eligible for listing, a cultural resource must meet certain criteria for designation, as outlined in the National Register portion of our website. The APE is influenced by the scale and nature Section 106 of the National Historic Preservation Act (NHPA) (54 USC § 306101) and its implementing regulations, 36 CFR Part 800, is a law that requires federal agencies to consider the effects of federally funded projects on historic properties (i.e., listed, or eligible for listing, in National Register of Historic Places), and when applicable, provide other consulting parties and the public an … Understand the importance of definitions of APE in Section 106 and direct and indirect effects in National Environmental Policy Act (NEPA) to the coordination of these regulations. Potential Effect? The ACHP provides training on Section 106 for federal and non-federal entities. Getting started in the Section 106 process. responsibilities under Section 106 first and then address historic properties in your NEPA compliance. A fundamental goal of the Section 106 process is to ensure that federal agencies consult with interested parties to identify and evaluate historic properties, assess the effects of their undertakings on historic properties, and attempt to negotiate an outcome that will balance project needs and historic preservation values. Therefore, the outcome of Section 106 reviews can range from avoidance of historic properties to the acceptance of extensive adverse effects to historic properties. The NHPA requires any agency issuing a federal permit or license, providing federal funds or otherwise providing assistance or approval to comply with Section 106. Provide the agency with existing information on historic properties and the results of prior surveys and research. Help facilitate the preparation of either the MOA or PA, as requested by the agency. This provision is often referred to as the “anticipatory demolition” section and is intended to prevent applicants from damaging a historic property prior to Section 106 review. If it is a transportation project, does the project include financial assistance from agencies such as the Federal Highway Administration, the Federal Railroad Administration, or the Federal Transit Administration? —yes 6. Resources and training about improving coordination of NEPA and Section 106 reviews. Help develop ideas to avoid adverse effects, such as modifying site or building plans, realigning linear projects, or proposing other project alternatives. NPI also offers eLearning and webinar modules as customized training to meet specific organizational needs. In the case of a Section 106 consultation, the federal agency (or its designee, acting on behalf of that federal agency) seeks SHPO review of its definition of (1) the area of potential effect (APE) defined for the proposed undertaking; and SHPO concurrence with the (2) agency determinations of eligibility for any resources lying within the APE, and (3) a single, finding of effect for the undertaking. Section 106 and the accompanying documentation support DOT Section 4(f) can determinations the use of a historic property for regarding an FAA program or project. Initiating Consultation with SHPO and THPO. Does a privately funded undertaking require the use of federal lands to connect a linear activity such as a gas or oil pipeline or broadband? Applicants are encouraged to attend the training which is scheduled in various locations each year. What is Section 106? The “authorization to initiate consultation” described above affects the role of an applicant in the regular Section 106 process. Section 106 requires that federal agenciesconsider the effects of their und ertakings on historic resources. Consult on APE — Objective of Tonight’s Meeting 7. Tip: The federal agency should initiate consultation with Indian tribes and Native Hawaiian organizations and share information with them early in the Section 106 process. This checklist accompanies the ACHP's Section 106 Applicant Toolkit, which provides information and guidance on the Section 106 process to parties who are the recipients of, or are applying for federal licenses, permits, assistance, or approvals. Both NEPA and Section 106 require considering all kinds of impacts – direct, indirect, and cumulative. Area of Potential Effects (APE) means the geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist. ensures that project schedules provide sufficient time for Section 106 review and are properly coordinated to avoid last minute or rushed consultation. Tribe Address 1 Address 2. Decision on APE — Shortly After Tonight’s Meeting Section 106 Process 8. Based on the information gathered through the Section 106 process, a federal agency may make an informed decision to approve, change, or deny a project. The Area of Potential Effects (APE) is defined in the regulations implementing the Section 106 review process as "The geographic area or areas within which an undertaking may directly or indirectly cause changes in the character or use of historic properties, if any such properties exist. there is the potential for a foreclosure situation under 36 CFR § 800.9(b) or an anticipatory demolition under 36 CFR § 800.9(c). Section 106 of National Historic Preservation Act . As part of project planning, an applicant should be aware of any procedures or PA that the federal agency has established related to disaster or emergency declarations. (APE). assumes an active and informed role in the process at the earliest stages of project planning. A member of the public with a demonstrated interest in an undertaking may request and receive consulting party status from the federal agency." The Section 106 regulations recognize that the federal agency may need the assistance of an applicant to coordinate the Section 106 review. This Supplemental Section 106 Report reports the findings of survey work performed to identify potential historic/architectural and/or archaeological/cultural resources within the areas associated with Alternative D. The purpose of this document is to support FAA's request for concurrence from the Appendices should include photographs, maps, drawings, etc. Consulting parties participate with the federal agency in the preparation of an agreement document, typically a Memorandum of Agreement (MOA) or Programmatic Agreement (PA), which establishes the agreed upon measures to resolve the adverse effect and the roles and responsibilities of the agency and the consulting parties. If the signatories cannot come to an agreement, the agency must request and consider ACHP comments. Section 106 should be coordinated as appropriate with other applicable federal, state, and local review requirements. Other parties may also participate in the Section 106 consultation. avoids taking actions that harm historic properties or making commitments before completing the process. Ethel R. Eaton, Ph.D., policy experience working with Section 106 of the National Historic Preservation Act for the Virginia Department of Historic Resources and the Maryland Historical Trust; past excavation, teaching, and research positions at universities and museums, © Copyright National Preservation Institute 2021. Guidance for Section 106 Consultation Submittals This document provides guidance for federal agencies consulting with the State Historic Preservation Officer (SHPO) under Section 106 of the National Historic Preservation Act . Section 106 requires consideration not only of those properties listed on the National Register, but also of those properties that are eligible for listing. If an agreement is reached, the agency must implement all agreed upon measures set forth in the resulting MOA or PA. Section 106 requires federal agencies to consider the effects on historic properties of projects they carry out, assist, permit, license, or approve (undertakings). National Register-listed or -eligible For NRCS, under this definition, undertakings would include all proposed practices for any project, since the agency is providing assistance. The goal of the Section 106 process is to identify and avoid, minimize, or mitigate adverse effects on historic properties. Likewise, SHPOs offer periodic training taught by their staff regarding Section 106 reviews. Although the Section 106 regulations do not mandate a timeframe within which a federal agency must complete its review, the federal agency should plan for the time needed to consult to resolve adverse effects to historic properties at the beginning of the project planning process. Scholarships covering tuition fees for NPI online trainings are available for participants who show a justifiable need for training and tuition assistance. Section 106 Process 4. Since state and local reviews do not require federal involvement, these reviews are typically completed by the applicant. For the purposes of Federal review and the Section 106 process, a historic property is any property that is included in, or eligible for inclusion in, the National Register of Historic Places (NRHP). Inquire whether any Section 106 program alternative, such as a PA, applies to the undertaking. By better understanding the requirements of Section 106, applicants can make informed decisions about how they can best facilitate Section 106 reviews, avoid project delays, and improve outcomes. Step 2: Identify and Evaluate Historic Properties (§ 800.4) __ Define the Area of Potential Effects (APE) Only when authorized by federal statute may non-federal entities be delegated legal responsibility for Section 106 compliance. Complying with Section 106 is a federal agency responsibility and, while applicants may be asked to carry out some of the tasks for completing a Section 106 review, the federal agency remains responsible for all findings and determinations. Further, if a properly executed PA or other program alternative approved by the ACHP provides an alternate process for complying with Section 106 for a program or project, its terms may define a particular role and responsibilities for the applicant that may differ from those in the regular process. Section 106 review encourages, but does not mandate, a preservation outcome and recognizes that sometimes there is no way for a project to proceed without affecting historic properties. An applicant should ask the federal agency whether it has an authorization letter that covers its program(s) or project(s). The process has four basic steps: establish the undertaking, identify and evaluate historic properties, assess effects to historic properties, and resolve any adverse effects. Many agencies also offer training on Section 106 and environmental reviews, and often include agency-specific policies for compliance with Section 106 in program guidance and Notice of Funding Availability details. Respond to research questions and other inquiries from the agency. All federal agencies under the executive branch of the U.S. government are subject to the requirements of Section 106, including independent regulatory agencies. Regardless of the extent of the authorization, the federal agency will remain responsible for participating in the consultation process when: Moreover, despite these authorizations, the federal agency remains responsible for ensuring that all consultations with Indian tribes are conducted in a sensitive manner respectful of tribal sovereignty and the government-to-government relationship between the federal government and Indian tribes. The Corps shall define the APE/Permit Area for the project. A federal agency may ask an applicant in the Section 106 process to pay for the cost of meetings, travel, maintaining the administrative record, or studies to inform the review. Date. Each federal agency develops its own internal NEPA regulations to implement this review process. Section 106 requires a federal agency notify the public of proposed projects and offer the public an opportunity to provide input in a timely manner. Depending on the circumstances and the consultation process, a federal agency may conclude its Section 106 review with a finding of “no historic properties affected” or “no adverse effects to historic properties.” Should the proposed undertaking pose adverse effects to historic properties, the agency must consult to attempt to reach an agreement on how to resolve those adverse effects. An applicant should discuss with the federal agency any other potential federal agency approvals needed for their project so that the agency can better plan for and coordinate with other agencies on Section 106 review responsibilities. The OHP offers a Section 106 Submission Checklist that identifies the information that should be submitted to us for review of undertakings pursuant to Section 106.. Tip: SHPOs and THPOs should be contacted early so they can collaborate on the identification of historic properties and inform the development of alternatives. Does the project involve filling wetlands or affect navigable waterways that requires a Corps of Engineers permit? For example, Congress authorized the Department of Housing and Urban Development (HUD) to delegate certain federal environmental duties, including Section 106 compliance, to a state, tribal, or local government through the Housing and Community Development Act of 1974. Be flexible and seek creative solutions that meet project needs while avoiding or minimizing impacts to historic properties by actively participating in the consultation process. In some instances, the agency may follow the procedures in the Section 106 regulations that allow it to delegate the initial steps of the Section 106 process to an applicant. Will a project that is receiving federal funds, grants, or loans involve any bricks and mortar activities? The steps must be carried out sequentially. The emergency situations section of the Section 106 regulations, 36 CFR § 800.12(b), applies only to undertakings that will be implemented in response to the disaster or emergency within 30 days after the disaster or emergency has been formally declared by the appropriate authority or, in the case of another immediate threat to life or property, within 30 days after such an event occurs. Section 106: The Meaning of Effects: Chapter 1, Section 106: The Meaning of Effects: Chapter 2, Section 106: The Meaning of Effects: Chapter 3, Section 106: The Meaning of Effects: Chapter 4, Section 106: The Meaning of Effects (slide deck), Advisory Council on Historic Preservation Memorandum, Recent court decision regarding the meaning of "direct" in Sections 106 and 110(f) of the National Historic Preservation Act, June 7, 2019, 36 CFR 800 - Protection of Historic Properties, Assessing Visual Effects on Historic Properties, Virginia Department of Historic Resources (Marc Holma, 2010), The National Historic Preservation Act As amended through December 16, 2016 and Codified in Title 54 of the United States Code, National Parks Conservation Association v. Semonite, March 1, 2019, Charleston Union Pier Terminal Project, National Park Service letter to Charleston District, Corps of Engineers, September 21, 2017, Comparison of Visual Impact Analysis under the National Environmental Policy Act and Section 106 of the National Historic Preservation Act (Robert G. Sullivan, Mark E. Meyer, and Daniel J. O'Rourke, Visual Resource Stewardship Conference Proceedings, 2018, Section 106: The Meaning of Effects (transcript), Officials and community leaders, archaeologists, architectural historians, cultural and natural resource managers, Landscape and preservation architects, planners, and project managers with SHPOs, THPOs, Tribes, government agencies, and contractors involved in compliance requirements. In defining the area of potential effects for Section 106 purposes, you need to consider all these kinds of effects, just as you do in scoping the EIS. The Section 106 process ensures that a federal agency assumes responsibility for the consequences of its undertakings on historic properties. Although the federal agency is ultimately responsible for Section 106 compliance, an applicant may play a vital role in the Section 106 review by completing archaeological studies or other research activities, for example, or by initiating consultation when authorized to do so by the federal agency. The historic properties identified within the APE for the Project are described in the Section 106 Technical Report, SR 520 Bridge Replacement and HOV Program, I-5 to Medina: Bridge Replacement and HOV Project 36 CFR … The Section 106 sample letters provided below are examples to use from previous projects. The regulations implementing Section 106 can be found on the ACHP’s Web site at . Tribal Manual Appendix C: Sample Consultation Letter for DCE, Section 106 and APE. The Section 106 process treats properties that are already listed or eligible for listing on the NHRP equally. Federal agencies must also provide the ACHP a reasonable opportunity to comment on such undertakings before the approval of the expenditure of any federal funds on the undertaking or before the issuance of any license. The spectrum of applicants is diverse, from private property owners to large corporations, which may participate in the Section 106 process in various capacities consistent with the scale of their involvement in the undertaking. The SHPO review and concurrence DOES NOT extend to such features. Applicants need to be familiar with NEPA documents and their possible use for Section 106. Historic properties in this instance include both standing structures and archaeological resources. ˜ Area of Potential Effect (APE)/Permit Area. Because many federal agencies require applicants to assist in complying with the initial steps of the Section 106 process, applicants will benefit from these tools and access to resources necessary to be effective in this role. Historic properties can include archaeological sites or artifacts and historic districts, buildings or … Confirm with the agency that Section 106 review is required for the proposed undertaking. Click on the links to download a Word Document example letter to your computer. Agencies should plan their public participation, analysis, and review in such a way that they can meet the purposes and requirements of both statutes in a timely and efficient manner. Tip: Section 106 of the NHPA requires federal agencies to consider the effects on historic properties of projects they carry out, assist, fund, permit, license, or approve. The agency should also include the ACHP in this notification. Tip: Expediting the four-step process may not exclude or limit the involvement of consulting parties. Although these questions can assist in determining whether an undertaking exists, an applicant should remember there are many other examples and types of projects that are undertakings that have the potential to affect historic properties. The Federal Communications Commission has done so through its nationwide Programmatic Agreement, executed in 2004. Will it involve ground disturbance or excavation? The federal agency must consult with the SHPO; THPO; appropriate state, local, and tribal officials; Indian tribes; NHOs; applicants; and any other consulting parties in identifying historic properties, assessing effects, and resolving adverse effects, and provide for public involvement. As part of project planning, an applicant should be aware of any procedures or PA that the federal agency has established related to disaster or emergency declarations. 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