Historic properties can include archaeological sites or artifacts and historic districts, buildings or … —yes 6. carries out agreed-upon measures to avoid, minimize, or mitigate adverse effects to historic properties. Tip: The applicant and the federal agency should coordinate on the development of a strategy for informing the public about the undertaking and its potential effects to historic properties at the initiation of project planning. Tip: An applicant should support the engagement of consulting parties early in the Section 106 review so that the consulting parties will understand the project schedule and identify major preservation issues early in project planning. Likewise, SHPOs offer periodic training taught by their staff regarding Section 106 reviews. In the National Historic Preservation Act of 1966 (NHPA), Congress established a comprehensive program to preserve the historical and cultural foundation of the nation as a living part of community life. The Section 106 process Provide the agency with existing information on historic properties and the results of prior surveys and research. Help develop ideas to avoid adverse effects, such as modifying site or building plans, realigning linear projects, or proposing other project alternatives. 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. 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. Advisory Council on Historic Preservation, Historic Preservation Contacts and Resources, View information on the National Conference of State Historic Preservation Officers, and contact information for individual SHPOs, View information on the National Register of Historic Places, View information on ACHP’s training program and course offerings, View a checklist that accompanies this Applicant Toolkit, Limitations on the Delegation of Authority by Federal Agencies to Initiate Tribal Consultation under Section 106 of the National Historic Preservation Act. 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. What are a federal agency’s responsibilities under Section 106 of the NHPA? Define the area of potential effects (APE) as outlined in the regulations of Section 106 of the National Historic Preservation Act. This includes archaeological resources. To be eligible for listing, a cultural resource must meet certain criteria for designation, as outlined in the National Register portion of our website. An applicant should consider conducting background research on the potential historic properties that may be located in the project’s area of potential effects (APE) and identifying interested parties, including Indian tribes, that may have an interest in the project’s effects on historic properties. If invited by the agency, or if assigned responsibilities in the agreement, sign the MOA or PA as an invited signatory or concurring party. Agencies comply with Section 106 through the process in the implementing regulations, “Protection of Historic Properties” (36 CFR Part 800). 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 … Assist the agency in implementing mitigation measures as set forth in the MOA or PA. the undertaking may adversely affect a historic property; there is a disagreement between the applicant and the SHPO/THPO regarding identification and evaluation of a historic property, and/or the assessment of effects; there is an objection from consulting parties or the public regarding the findings and determinations, the implementation of agreed upon provisions, or their involvement in a Section 106 review; a tribe requests the federal agency remain involved; or. Both NEPA and Section 106 require considering all kinds of impacts – direct, indirect, and cumulative. Decision on APE — Shortly After Tonight’s Meeting Section 106 Process 8. Local administrative reviews such as use permits, zoning, variances, or planning commission reviews and approvals may inform the Section 106 review, and are important to the federal agency. Help facilitate the preparation of either the MOA or PA, as requested by the agency. The toolkit provides an overview of the Section 106 process and information on the four-step process, consulting with states and Indian tribes, engaging stakeholders, and avoiding inadvertent activities that may adversely affect historic properties. Please remember that the Section 106 process also includes consideration of Native American resources and features. 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. assumes an active and informed role in the process at the earliest stages of project planning. The Section 106 regulations recognize that the federal agency may need the assistance of an applicant to coordinate the Section 106 review. 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. 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. Applicants need to be familiar with NEPA documents and their possible use for Section 106. Potential Effect? The goal of the Section 106 process is to identify and avoid, minimize, or mitigate adverse effects on historic properties. responsibilities under Section 106 first and then address historic properties in your NEPA compliance. Has the applicant been advised to obtain a federal permit, approval, or license? The steps must be carried out sequentially. Public Notification Jan. 30, 2003 Public Meeting Section 106 Process 5. The Section 106 process ensures that a federal agency assumes responsibility for the consequences of its undertakings on historic properties. Inquire whether any Section 106 program alternative, such as a PA, applies to the undertaking. NPI also offers eLearning and webinar modules as customized training to meet specific organizational needs. Section 106 of the NHPA requires that each federal agency identify and assess the effects its actions may have on historic buildings. 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). 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. 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. 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. Step 2: Identify and Evaluate Historic Properties (§ 800.4) __ Define the Area of Potential Effects (APE) 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. The regulations implementing Section 106 can be found on the ACHP’s Web site at . 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. According to the steps prescribed by the Section 106 regulations, the APE must be defined before the identification of historic properties and evaluation of potential effects occurs. An initial consulting parties meeting was held on September 18, 2019 to introduce the proposed project, the Section 106 process, discuss the APE, and present initial results of the archaeological and historic architectural surveys completed to date. Therefore, the outcome of Section 106 reviews can range from avoidance of historic properties to the acceptance of extensive adverse effects to historic properties. 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. 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. 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. While the SHPO/THPO does not approve such authorization, the required advance notice avoids confusion and provides agency contact information. Section 106 Submission Checklist. and its implementing regulations at . Describe the horizontal and vertical (depth of ground disturbance) area of direct and indirect effects. Section 106 must be completed before an agency signs a decision document for NEPA (e.g., a Record of Decision). The SHPO review and concurrence DOES NOT extend to such features. Getting started in the Section 106 process. The responsibilities of all parties in the Section 106 review process are set forth in federal regulations developed by the ACHP as 36 CFR 800: Protection of Historic Properties. 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. 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. WHEREAS, FHW A and CDOT have determined that because Preferred Alternative improvements will be constructed in phases, the Section 106 process, including modifications to the Area of Potential Effects (APE), identification of historic properties, evaluation of effects to historic properties, and consultation Through such an authorization, the applicant can facilitate the agency’s compliance with several steps in the Section 106 review process. is familiar with the federal agency’s policies and guidance and maintains open channels of communication with the agency throughout the process. Assist the agency in providing information to the SHPO/THPO and other consulting parties regarding the agency’s eligibility determinations. ensures that project schedules provide sufficient time for Section 106 review and are properly coordinated to avoid last minute or rushed consultation. 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 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. Scoping Letter to SHPO. 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 . 2. They can be tailored to create training at a time convenient to the sponsor. The ACHP provides training on Section 106 for federal and non-federal entities. 4903/Section 106 3 Terrestrial Area of Potential Effect Vineyard Wind Epsilon Associates, Inc. the entire right-of-way along the onshore export cable route is considered the APE, though only a portion of the right-of-way will actually be disturbed. 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. While compliance with one or more of these other statutes generally does not substitute for compliance with Section 106, a federal agency is authorized to use the process and documentation required for NEPA to substitute for the Section 106 procedures so long as the standards of 36 CFR§ 800.8(c)(1) are met. Tribal Manual Appendix C: Sample Consultation Letter for DCE, Section 106 and APE. 36 CFR … The Federal Communications Commission has done so through its nationwide Programmatic Agreement, executed in 2004. An agency may not delegate consultation with Indian tribes to an applicant unless the affected tribes have agreed to such an arrangement in advance. An applicant seeking federal funding, permits, licenses, or approvals is encouraged to actively participate in the Section 106 process. 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. selects qualified professional contractors and consultants that have demonstrated capability to carry out the Section 106 process. The agency should also include the ACHP in this notification. In certain instances, where an approved Section 106 program alternative is in place, a federal agency may authorize an applicant or other non-federal entity to undertake specified review responsibilities. Scholarships covering tuition fees for NPI online trainings are available for participants who show a justifiable need for training and tuition assistance. ... (APE) (map attached) was established by NYSDOT and FHWA in consultation with the What is Section 106? All Courses, Clarify the meaning of direct and indirect effects, discuss how to document an APE to facilitate consultation, review the potential to affect historic properties, and consider the assessment of effects. Appendices should include photographs, maps, drawings, etc. there is the potential for a foreclosure situation under 36 CFR § 800.9(b) or an anticipatory demolition under 36 CFR § 800.9(c). Likewise, the applicant should be familiar with the federal agency’s internal guidance, policies, and procedures to fully assist in the Section 106 review. 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. Since state and local reviews do not require federal involvement, these reviews are typically completed by the applicant. National Register-listed or -eligible Click HERE to view the presentation from the September 18, 2019 consulting parties meeting. Define the area of potential effects (APE) as outlined in the regulations of Section 106 of the National Historic Preservation Act. 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. Section 106 (36 CFR 800.2[o], see also 16 USC 470w[7]). ˜ Area of Potential Effect (APE)/Permit Area. Applicants should remember that consultation under Section 106 is different from public involvement under NEPA and requires more interaction with consulting parties. A member of the public with a demonstrated interest in an undertaking may request and receive consulting party status from the federal agency." Tip: An applicant should always seek updates from a federal agency regarding efficiencies established to expedite Section 106 reviews in emergencies. 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. 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. For example, an agency cannot assess the effects of the undertaking on historic properties until it has identified and evaluated historic properties within the APE. 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. 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? After definin… Other parties may also participate in the Section 106 consultation. What is the ACHP’s policy on dealing with burial sites, human remains, and funerary objects? Contact NPI at 703.765.0100 or [email protected] for further information. Section 106 Process 4. 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. However, NRCS excludes some practices from cultural resources review because they have no 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. Assist the agency in its efforts to assess effects to historic properties and provide analysis and information to the agency, SHPO/THPO, and other consulting parties. Initiation of Consultation – … 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. Finally, as mentioned before, an applicant can be delegated legal responsibility over Section 106 compliance through legislation, such as MAP-21. If an agreement is reached, the agency must implement all agreed upon measures set forth in the resulting MOA or PA. Confirm with the agency that Section 106 review is required for the proposed undertaking. Section 106 of the NHPA if more than one federal agency is involved. As requested by the agency, research potential historic properties that may be located in the APE by contacting local preservation commissions, universities, historical societies, and statewide and local preservation organizations; search the SHPO’s survey files and other appropriate sources. To remain in compliance, you must implement the project in accordance with the PA. 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. The Section 106 sample letters provided below are examples to use from previous projects. The four steps of the Section 106 process, Initiating the process—defining the APE (area of potential effects), Applying the criteria of adverse effect to assess effects, Special situations—National Historic Landmarks. When a project is categorically excluded from NEPA review, Section 106 review may still be required. In order to do so, it is first necessary to define and document the area of potential effects (APE… The Section 106 review process is an integral component of the National Historic Preservation Act (NHPA) of 1966.. Each local agency is responsible for contacting each of the 12 recognized tribal governments in the State of Michigan and receiving concurrence from those governments. The agency should outline all required federal review requirements early in project planning with the applicant. Work with the federal agency and SHPO/THPO to develop or propose a scope of work to the federal agency and SHPO/THPO to conduct historic preservation/cultural resource surveys and studies. A map of the APE for the Project, as determined after consultation with the consulting parties, appears as Appendix B. as necessary to provide a complete description of the project's location and setting. Historic properties in this instance include both standing structures and archaeological resources. Notify the agency about other stakeholders who may have an interest in the project and wish to be consulting parties. It is important for applicants to understand Section 106 terminology and concepts. If the signatories cannot come to an agreement, the agency must request and consider ACHP comments. The APE is influenced by the scale and nature Under such an authorization, an applicant may be allowed to consult with the SHPO/THPO to initiate the Section 106 review process, identify and evaluate historic properties, and assess effects. 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. Types of effects on historic properties may Will a project that is receiving federal funds, grants, or loans involve any bricks and mortar activities? Read more and download application. Section 106 requires federal agencies to consider the effects on historic properties of projects they carry out, assist, permit, license, or approve (undertakings). Under Section 106, federal agencies must consider the effects of their actions on historic properties, defined as resources that are included in, or eligible for inclusion in, the National Register. We suggest moving this party over to a full size window. Tip: A federal agency should identify the applicant for the consulting parties and indicate the extent to which the applicant is available to engage in the Section 106 review. 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. If yes, once you record how the project complies with the terms of the PA, Section 106 review is complete and you are in compliance. 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. Tip: An applicant should participate in training opportunities on Section 106 and NEPA to ensure he/she understands definitions and concepts related to historic preservation. Tip: SHPOs and THPOs should be contacted early so they can collaborate on the identification of historic properties and inform the development of alternatives. Section 106 should be coordinated as appropriate with other applicable federal, state, and local review requirements. Provide information and make recommendations to the agency regarding determinations of National Register eligibility. When applicants have been authorized to initiate the Section 106 process by the agency (see more information in the following topic area, “Authorization to Initiate Consultation” and Applicants), knowledge of these terms and definitions is critical. 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. Where adverse effects are found, consultation among the agency, applicant, and consulting parties, including the ACHP in some cases, is pursued to develop avoidance alternatives or mitigation measures to resolve adverse effects. Resources and training about improving coordination of NEPA and Section 106 reviews. Read more and download the application. Click on the links to download a Word Document example letter to your computer. 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. Only when authorized by federal statute may non-federal entities be delegated legal responsibility for Section 106 compliance. The ACHP developed this toolkit to provide 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. Consult on APE — Objective of Tonight’s Meeting 7. Respond to research questions and other inquiries from the agency. 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? The following list provides guidance on the applicant’s role in the regular Section 106 process when the applicant has not been authorized by the federal agency to initiate consultation: Tip: The National Register of Historic Places, administered by the National Park Service, is the nation’s official list of properties recognized for their significance in American history, architecture, archaeology, engineering, and culture. 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. Tip: An applicant authorized to initiate the Section 106 review should remember to develop an administrative record and be diligent in following the process. Does the project require a federal permit, license, or approval to cross wetlands, operate a dam or wind turbines, or to site a telecommunications tower? The “authorization to initiate consultation” described above affects the role of an applicant in the regular Section 106 process. 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? The Section 106 process treats properties that are already listed or eligible for listing on the NHRP equally. Certain parties are entitled to participate in Section 106 consultation, and these parties must be identified and invited into the process by the federal agency responsible for complying with Section 106. 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