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Section
106 of the National Historic Preservation Act of 1966 (NHPA):
What
is Section 106 review?
Section
106 of the National Historic Preservation Act of 1966 (NHPA)
requires Federal agencies to take into account the effects
of their undertakings on historic properties. The review process
is administered by the Advisory Council on Historic Preservation
(ACHP), along with the Federal Highway Administration (FHWA/agency)
and the State Historic Preservation Office (SHPO). The historic
preservation review process mandated by Section 106 is outlined
in regulations issued by the Council. Revised regulations,
"Protection of Historic Properties" (36 CFR Part
800), became effective January 11, 2001, and are summarized
below.
Why
was Section 106 created?
NHPA was enacted because of public concern that so many of
our Nation's historic resources were not receiving adequate
attention as the Government sponsored much-needed public works
projects. In the 1960s, Federal preservation law applied only
to a handful of nationally significant properties, and Congress
recognized that new legislation was needed to protect the
many other historic properties that were being harmed by Federal
activities.
What
does NHPA say?
Section 106 of NHPA requires that every Federal agency "take
into account" how each of its undertakings could affect
historic properties. An agency must also afford the Council
a reasonable opportunity to comment on the project.
What
is a Federal "undertaking"?
This term includes a broad range of Federal activities: construction,
rehabilitation and repair projects, demolition, licenses,
permits, loans, loan guarantees, grants, Federal property
transfers, and many other types of Federal involvement. Whenever
one of these activities affects a historic property, the sponsoring
agency is obligated to seek Council comments.
What
is a historic property?
For purposes of Section 106, any property listed in or eligible
for the National Register of Historic Places is considered
historic.
The
National Register is this country's basic inventory of historic
resources and is maintained by the Secretary of the Interior.
The list includes buildings, structures, objects, sites, districts,
and archaeological resources. The listed properties are not
just of nationwide importance; most are significant primarily
at the State or local level. It is important to note that
the protections of Section 106 extend to properties that possess
significance but have not yet been listed or formally determined
eligible for listing. Even properties that have not yet been
discovered (such as archeological properties), but possess
significance, are subject to Section 106 review.
What
is the Advisory Council on Historic Preservation?
The 20-member Council is composed of four members of the general
public (including the chairman and vice chairman), four historic
preservation experts, a Native American or Native Hawaiian,
a governor, a mayor, seven federal agency heads, and two ex-officio
representatives of national preservation organizations--all
appointed by the President of the United States.
Who
initiates Section 106 review?
The Federal agency involved in the proposed project or activity
is responsible for initiating and completing the Section 106
review process. Under certain circumstances, local governmental
bodies may act as the responsible agency. The agency works
with the State Historic Preservation Officer (an official
appointed in each State or territory to administer the national
historic preservation program) and the Council to do so. There
can be other participants in Section 106 review as well. At
times, local governments, representatives of Indian tribes,
applicants for Federal grants, licenses or permits, and others
may join in the review process when it affects their interests
or activities. The following is a list of consulting parties
for this project:
- Angela
Bowen, Wabash
Valley Trust for Historic Preservation
- Mark
Dollase, Historic Landmarks Foundation
- John
P. Froman, NAGPRA Principal Chief, Peoria Tribe of Indians
of Oklahoma
- James
F. Howell, Shelby Township Historical Association
- Julie
Olds, Miami Tribe of Oklahoma
- David
M. Scholes, Delaware Nation
- Jon
Smith, State Historic Preservation
Officer (SHPO), Division of Historic Preservation and Archeology
Section 106 Step-by-Step
1.
Undertaking Determination
Determines
if the proposed project or action is an "undertaking"
by deciding whether the proposed action could result in
changes in the character or use of any historic properties.
If there is an undertaking, but it does not present a type
of activity that has the potential to have an effect on
a historic property, then the Section 106 obligations are
complete.
It
is also necessary to plan on involving the public and to
identify any consulting parties (i.e., local governments,
Indian tribes, Native Hawaiian organizations, and applicants
for Federal assistance or permits, etc.).
2.
Identifying Historic Properties
Includes
preliminary work, actual efforts to identify properties,
and an evaluation of identified properties to determine
whether they are "historic;" i.e., they are listed
on, or are eligible for inclusion in, the National Register
of Historic Places (NRHP).
When
properties are found that may be historic but have not been
evaluated, the agency and SHPO consult about eligibility
for each property.
If
the property is found to be ineligible, appropriate documentation
must be given to the SHPO/THPO and consulting parties must
be notified. Once adequate documentation is received, the
SHPO/THPO has 30 days to object to the determination. The
Council may also object on its own initiative within the
time period. Lack of such objection within the 30-day period
means that the agency has completed its Section 106 responsibilities.
If
the property is found to be eligible, the effects of the
undertaking on the property must be assessed and consulting
parties must be notified.
3.
Assessing Effects
Once
eligible historic properties have been identified, it is
then determined whether the proposed undertaking could affect
the properties. The criteria of effect and adverse effect
are used to determine potential effects on historic properties.
The
criteria of adverse effect states that "an adverse
effect is found when an undertaking may alter, directly
or indirectly, any of the characteristics of a historic
property that qualify the property for inclusion in the
National Register in a manner that would diminish the integrity
of the property's location, design, setting, materials,
workmanship, feeling, or association… Adverse effects
may include reasonably foreseeable effects caused by the
undertaking that may occur later in time, be farther removed
in distance or be cumulative." [36 CFR 800.5(a)]
When
applying the criteria of effect and adverse effect, there
are three possible findings:
- No
Effect: There is no effect of any kind, neither harmful
nor beneficial, on the historic properties. The proposed
undertaking may proceed.
- No
Adverse Effect: There could be an effect, but the effect
would not be harmful to those characteristics that qualify
the property for inclusion in the national register. Project
documentation must be submitted to the Council for concurrence.
- Adverse
Effect: There could be an effect, and that effect could
harm characteristics that qualify the property for inclusion
in the national register. Consultation must begin with
the SHPO/THPO and the Council to seek ways to avoid, minimize,
or mitigate the adverse effects.
4.
Resolve Adverse Effects
The
agency consults to resolve adverse effects with the SHPO/THPO
and others (i.e., Indian tribes and Native Hawaiian organizations,
local governments, permit or license applicants, and members
of the public). The Council may participate in consultation
when there are substantial impacts to important historic
properties, when a case presents important questions of
policy or interpretation, when there is a potential for
procedural problems, or when there are issues of concern
to Indian tribes or Native Hawaiian organizations.
Consultation
usually results in a Memorandum of Agreement (MOA), which
outlines agreed-upon measures that the agency will take
to avoid, minimize, or mitigate the adverse effects. In
some cases, the consulting parties may agree that no such
measures are possible, but that the adverse effects must
be accepted in the public interest. If an MOA is executed,
the agency proceeds with its undertaking under the terms
of the MOA.
If
consultation proves unproductive and the adverse effect(s)
cannot be resolved, the agency or the SHPO/THPO*, or the
Council itself, may terminate consultation. If a SHPO terminates
consultation, the agency and the Council may conclude an
MOA without SHPO involvement. However, if a THPO* terminates
consultation and the undertaking is on or affecting historic
properties on tribal lands, the Council must provide its
comments. The agency must submit appropriate documentation
to the Council and request the Council's written comments.
The agency head must take into account the Council's written
comments in deciding how to proceed.
5.
Proceed with Project
As
stated in Step 4, if an MOA is executed, the agency proceeds
with its undertaking under the terms of the agreement.
Helpful Websites:
Advisory
Council on Historic Preservation (ACHP)
FHWA
Indiana Division Section 106 Consultation Procedures
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