These Frequently Asked Questions (FAQs) are organized into eight groups, each relating to a major component of the Section 106 compliance process. Within these groups are headings that further organize this information to make it easier to navigate these FAQs. If you can’t find the answer to your question here, please contact your Section 106 Regional Coordinator.

The answers provided here are based on a variety of answers provided by other Federal Agencies. The Advisory Council on Historic Preservation (ACHP) has been especially useful in providing these answers, and in certain instances, provided the language that you’ll find here.

Basic Section 106 Questions
Participants in the Process
Identification of Historic Properties
The Standard Compliance Process
The Programmatic Agreement
Emergencies and Inadvertent Discoveries
Documenting Compliance
Troubleshooting

Basic Section 106 Questions

Q: What is Section 106?

A: Section 106, one of the many provisions in the National Historic Preservation Act (NHPA), has two important requirements for all Federal agencies:

1. Take into account the effects that their actions (or “undertakings,”) have on historic properties. These historic properties must either be listed in, or eligible for listing in, the National Register of Historic Places.

2. Give the Advisory Council on Historic Preservation an opportunity to comment on their undertakings

Q: What is 36 CFR 800?

A: Title 36 CFR 800, “Protection of Historic Properties,” is part of a larger group of regulations entitled “Parks, Forests, and Public Property.” This abbreviation, ’36 CFR 800’, is used to refer to Title 36, Part 800, of the Code of Federal Regulations (CFR). It lays out rules and regulations for Federal agencies to use in complying with Section 106, and was developed by the Advisory Council on Historic Preservation (ACHP). Last amended in 2004, the regulations also provide a detailed description of the step-by-step process mandated for compliance with Section 106. Understanding these regulations is critical to successful compliance.

Q: What is the purpose of Section 106 compliance?

A: The purpose of the Section 106 compliance review process is to responsibly consider historic preservation concerns alongside Federal undertakings. This review process ensures that the NPS and other Federal agencies consult to identify any potential conflicts between their undertakings and historic preservation. The public interest must always be taken into account while resolving any such conflicts.

Section 106 is part of the National Historic Preservation Act of 1966 (NHPA), an Act which Congress established to preserve our nation’s historical and cultural foundations as a living part of communities. Section 106 is crucial because it requires consideration of historic preservation in any project with Federal involvement – including any project undertaken, approved, or funded using Federal dollars.

But, please keep in mind that Section 106 compliance process encourages, but does not mandate, preservation. Section 106 review helps ensure that preservation values are factored into NPS planning and decisions, but sometimes there is no way for a needed project to proceed without harming historic properties.

Q: When is Section 106 review required?

A: Section 106 compliance review is required for any project involving a Federal agency or Federal money —we call this an “undertaking” —that has the potential to cause effects on historic properties. In other words, any activity that might affect historic properties, whether or not the effects might be adverse, is subject to compliance under Section 106. Examples range from repainting or re-roofing a historic structure, to maintaining a cultural landscape, to construction of roads and other park facilities, to the installation of signs, and any other ground-disturbing activity.

It is important to remember that if the activity is something with the potential to affect historic properties, Section 106 compliance is required whether or not historic properties are known to be present. Interested in learning more? See undertakings that are not subject to Section 106 compliance.

Q: What is “consultation” for purposes of Section 106?

A: Consultation, as defined in the Section 106 regulations, is “the process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them regarding matters arising in the section 106 process.” In other words, consultation is the active discussion and, if possible, agreement on matters occurring as a result of the 106 process.

It is important to note that effective consultation occurs when the parties:

  • keep an open mind;
  • state their interests clearly;
  • acknowledge that others have legitimate interests, and seek to understand and accommodate them;
  • consider a wide range of options;
  • identify shared goals and seek options that allow mutual gain; and
  • bring forward solutions that meet the agency’s needs.

Wondering how to initiate consultation? First it starts with the superintendent. The superintendent should involve the consulting parties in findings and determinations made throughout the Section 106 process. Consultation planned by the superintendent should be appropriate to the scale of the project and the level of involvement by the Federal agency. The likelihood of public interest should also be considered. Consultation should be coordinated with other legislative requirements, as applicable, such as those from the National Environmental Policy Act (NEPA), the Native American Graves Protection and Repatriation Act (NAGPRA), the American Indian Religious Freedom Act, the Archeological Resources Protection Act (ARPA), and any agency-specific legislation.

Undertakings

Q: What is an “undertaking” for purposes of Section 106?

A: An undertaking is defined in 36 CRF 800.16(y) as:
“a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of the agency; those carried out with Federal financial assistance; those requiring a Federal permit, license, or approval.”

This includes a plethora or things, like purchasing equipment, hiring personnel, authorizing permits to the Army Corps of Engineers for improvements on park lands, making grants to colleges and universities, and constructing and maintaining park facilities. “Undertakings” are generally comparable to the term “Federal actions” used in the National Environmental Policy Act (NEPA), which are triggered when Federal lands, money, or permits are involved.

Q: Are any undertakings not subject to Section 106 compliance?

A: Yes. If the undertaking does not have the potential to cause effects on historic properties, assuming such historic properties were present, the agency official has no further obligations under Section 106. Examples of such undertakings might include purchase of equipment and supplies, publishing reports, and personnel actions. It is good practice, though not required, that if an undertaking does not require compliance, park staff prepare a brief “memo to the file” explaining the reasoning for the decision. Remember though, any project that is entered into the Planning, Environment, and Public Comment (PEPC) system will probably be subject to Section 106 compliance.

Q: What is the difference between an “undertaking” under Section 106 and a “Federal action” under NEPA?

A: A “Federal undertaking” under Section 106 means a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency. This includes those projects carried out by or on behalf of a Federal agency, those receiving Federal financial assistance, and those requiring a Federal permit, license, or approval.

A “Federal action” under the National Environmental Policy Act (NEPA) is one that has the potential for having an impact on the human environment. This could include constructing facilities, awarding grants, approving permits, research and development, issuing new regulations, and real property actions such as leasing, disposal, and acquisition. A Federal action under NEPA also includes undertakings that are subject to state or local regulation administered pursuant to a delegation or approval by a Federal agency.

As a practical matter, the two terms are generally synonymous. There are minor variations in meaning, but typically those variations do not change how Section 106 or NEPA are applied. If there is confusion in a particular situation, consult your regional Section 106 coordinator or the national Section 106 coordinator at WASO.

Q: What is the difference between “no undertaking” and “no potential to cause effects”?

A: There is no Federal undertaking if the Federal government is not involved. This means that the Federal government did not provide funds or other financial assistance; there was no issuance of a Federal permit, license, or approval; and there is no direct Federal jurisdiction over the activity.

Only some Federal undertakings are considered to have “no potential to cause effects” on historic properties. In these situations, there is a Federal undertaking or action, but it does not have the potential to affect historic properties, assuming such historic properties were present. For example, the purchase of equipment and supplies, personnel actions, administrative histories, and some other studies, do not, by their very nature, have the potential to cause effects on historic properties. However, these are still considered to be undertakings because a Federally funded action is being taken. Because there is no potential to cause effects in these circumstances, Section 106 review is not required. But please keep in mind, undertakings that involve any ground-disturbing activity and most repair, routine maintenance, or other work on historic properties has at least the potential to cause effects, and therefore is subject to Section 106 compliance. Want to take a look at the law? See Section 800.3(a)(1).

Remember that this early in the process, information on historic properties is irrelevant because you might not know whether historic properties are in the area or why they might qualify for the National Register. You don’t have to know if historic properties are present to consider the potential effects of an undertaking. Conversely, if we are already aware of the presence of specific historic properties, the assumption that the project won’t affect those properties cannot justify a determination that the project is not an undertaking subject to further review. There is always the possibility that there are other, as yet unrecognized, historic properties that might be affected; and there is always the possibility of effects on historic properties that have not yet been considered.

Timing

Q: When should I initiate the Section 106 compliance process?

A: You should initiate compliance as early as possible, usually when the project is conceived. The superintendent must ensure that the Section 106 process is initiated early so that a broad range of alternatives can be considered during the planning phase. Early coordination in project planning is the key to successful Section 106 compliance. (See §800.1(c).)

The superintendent, who is the “agency official” responsible for compliance, should complete the Section 106 process “prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license,” or, more simply, before any money or license is received. This does not prohibit the superintendent from conducting or authorizing non-destructive project planning activities before completing compliance with Section 106, but be sure that such actions do not restrict the potential consideration of alternatives to avoid, minimize or mitigate adverse effects on historic properties.

Q: When a section of the regulations refers to 30-day review, when does the clock start?

A: The clock starts when all required documentation is received by the state historic preservation officer (SHPO), tribal historic preservation officer (THPO), or the Advisory Council on Historic Preservation (ACHP). Time is calculated in calendar days. As the process continues, the clock stops whenever there is a request for additional information and resumes when that information has been received by each of the consulting parties.

The SHPO/THPO generally has thirty (30) calendar days from the time of receipt of complete documentation to review and comment on NPS identification and assessment of effects findings. The ACHP will respond to notifications of adverse effect within fifteen (15) calendar days of the request’s receipt. Please note that in cases where the Federal agency fails to resolve adverse effects, the ACHP will issue its comments within forty-five (45) calendar days of its receipt of a request for such comments.

Q: When should an assessment of effect be sent to consulting parties for their review?

A: The agency’s assessment of effect – which is always informed by consultation – should be sent when:

  • historic properties within the area of potential effect have been identified, and
  • when there is enough information compiled for the reviewer to understand the project and its effects.

Typically, consensus is reached within the agency before any outside reviewers, such as the state historic preservation officer and consulting parties, are contacted.

Q: How long does the Section 106 compliance process take??

A: The compliance process might be thought of as lasting the life of the project. Even after project implementation is underway, remember that the project scope, conditions, and/or specifications may change, which would require additional consultation. For routine undertakings covered by the 2008 Nationwide Programmatic Agreement, the compliance process might be accomplished within two or three weeks. For more complex undertakings, the compliance process might stretch into months or, if the undertaking is extensive and/or controversial, years.

Participants in the Process

Q: For NPS, who is responsible for ensuring Section 106 compliance?

A: An agency’s Federal preservation officer (FPO), who is designated by the head of each agency, is responsible for coordinating compliance with Section 106. In the National Park Service (NPS), the associate director for cultural resources is the FPO.

Since 1995, responsibility for compliance with Section 106 in the national park system has been delegated to the park superintendent, who acts as the NPS “agency official.” This means superintendents are required to take legal and financial responsibility for complying with Section 106, although that does not mean that the superintendent can be personally sued or jailed for non-compliance. By definition, the superintendent has the “approval authority for the undertaking and can commit the Federal agency to take appropriate action for a specific undertaking as a result of section 106 compliance.” They also have “the authority to commit the Federal agency to any obligation it may assume in the implementation of a program alternative” as part of Section 106 compliance.

Regional directors ensure that the park role in meeting Section 106 and other legal compliance responsibilities is covered in park managers’ performance standards and park program evaluations. Regional directors are also available if the state historic preservation officer or the Advisory Council on Historic Preservation wish to bring a park issue to their attention.

For additional details, see Director’s Order 28, Chapter 5, parts C & D.

Q: Who is on the cultural resources management (CRM) team and what do they do?

A: To assist with Section 106 compliance, each park should have a formally designated cultural resources management (CRM) team. Members of this team should represent the major cultural resources disciplines, which include anthropology, archeology, cultural landscapes, historic architecture, history, and museum collections. Because very few parks actually employ all of these specialists, most parks draw from specialists at the regional offices, other parks, or even the private sector (pending certain qualifications). Depending on the nature of the proposed project, some or all of this CRM team may be asked to review and comment.

To maintain good standing with the nationwide Programmatic agreement (PA), each park must have a complete CRM team. If there is a National Historic Landmark (NHL) within the area of potential effect, the regional NHL coordinator should also be included on the team. CRM team members must meet the professional qualification standards outlined in Appendix E of Director’s Order 28..

Q: What is the interdisciplinary team (IDT) in the Planning, Environment, and Public Comment (PEPC) system and how does it differ from the CRM team?

A: The “interdisciplinary team,” or IDT, is a term used in environmental compliance and in the NPS Planning, Environment, and Public Comment (PEPC) system that describes a team of multiple disciplines that typically includes, but is not limited to, selected members of the cultural resource management (CRM) team. The IDT may also include natural and social resource advisors as well as the project lead, compliance staff (Section 106, NEPA, Section 7), and any other subject matter expertise that may be pertinent to the project, including interpretation, concessions, and facilities.

Q: What public involvement is required in the Section 106 process?

A: Regulations (see §800.2(d)) and NPS policy require that the superintendent consult with interested members of the public to encourage informed decision-making in the section 106 process. The superintendent should seek and consider the views of the public in a manner that reflects the nature and complexity of the undertaking and its effects on historic properties. Before consultation with the public, the Superintendent should consider:

  • the likely interest of the public in the effects on historic properties,
  • confidentiality concerns of private individuals and businesses,
  • and the relationship of the Federal involvement to the undertaking.

Remember, though, that public involvement varies from project to project. Superintendents should provide the public with information about an undertaking and its effects on historic properties in an effort to seek public comment and input unless, of course, a level of confidentiality needs to be maintained on behalf of affected parties (see §800.11(c)). Members of the public may also provide views on their own initiative for the agency official to consider in decision-making. Remember that public involvement in the NEPA compliance process often meets the needs of the Section 106 compliance process, but not in all cases.

Consulting Parties

Q: What is a “consulting party” for purposes of Section 106?

A: In addition to the agency official, who is responsible for ensuring that Section 106 review is conducted, and the Advisory Council on Historic Preservation (ACHP), which is given the opportunity to comment on the undertaking, other parties are entitled to consultative roles in the Section 106 process. (See §800.2(c).)

Consulting parties share their views, receive and review pertinent information, offer ideas, and consider possible solutions together with the Federal agency and other consulting parties. Remember, though, that the agency official is responsible for making decisions throughout the Section 106 process, not a consulting party.
The superintendent is responsible for identifying consulting parties and inviting them to participate in the Section 106 review. If consulting party status is denied, they may request the ACHP to review the denial and make recommendations to the Federal agency regarding their participation. Ultimately, though, it is the Federal agency that makes the final decision on the matter.

The level of a consulting party’s involvement depends on the park’s planning process and the nature of the project and its effects. Consultation may involve participants with a wide variety of concerns and goals. While the focus of some may be preservation, the focus of others may be time, cost, and the purpose to be served by the project.

Q: Who can be a consulting party??

A: There are four groups that are entitled to participate as consulting parties during the Section 106 compliance process (see 36 CFR 800.2(c)):

  1. State historic preservation officers
  2. Federally recognized Indian tribes and Native Hawaiian organizations
  3. Representatives of local government
  4. Applicants for Federal assistance, permits, licenses, and other approvals

In addition, certain individuals and organizations with an interest in the undertaking “due to the nature of their legal or economic relation to the undertaking or affected properties, or their concern with the undertakings effects on historic properties” may make written requests for consulting party status. Even though the agency must involve the public according to the requirements of the regulation, the public is not considered to be a consulting party. However, members of the public may request consulting party status to participate more actively in the review. Their participation is subject to approval by the superintendent as the Federal official responsible for compliance.

Q: How and when do I invite someone to be a consulting party?

A: The superintendent is responsible for identifying consulting parties, usually with input from the park’s cultural resource management (CRM) team. Identification of consulting parties should be done in the early stages of the compliance process because input from consulting parties is necessary at all subsequent stages. Sometimes the superintendent knows who should be a consulting party on a given undertaking, but sometimes it is through the process of external scoping/public involvement that consulting parties are identified.

An invitation to a consulting party’s purpose is to simply ask if the party wishes to be consulted during the compliance process. It should be in writing and should include the definition of a consulting party in the invitation, “individuals or organizations that have a demonstrated interest in a project’s effect on historic properties or cultural resources eligible for listing in the National Register.”

The “demonstrated interest” mentioned in the definition refers to concerns about a project’s potential impact to historic properties, economic, or other types of concerns. The invitation should also state that the National Park Service, as the lead Federal agency, makes the final decision about what groups, other than those required by regulations, become consulting parties (see 36 CFR 800.2).

Q: How is a Section 106 “consulting party” different from a NEPA “cooperating agency”?

A: Consulting parties under Section 106 are identified as (see 36 CFR 800.2(c)):

  • the State Historic Preservation Officer;
  • Indian tribes and Native Hawaiian organizations;
  • representatives of local government with jurisdiction over the area in which the effects of an undertaking may occur;
  • applicants for Federal Assistance, permits, licenses, and other approvals, and
  • certain individuals and organizations with a demonstrated interest in the undertaking.

Under NEPA, a “cooperating agency” is any Federal agency, other than the lead agency, with the jurisdiction or special expertise concerning potential environmental impacts in a proposed project or project alternative. A state or local agency of similar qualifications may, by agreement with the lead agencies, also become a cooperating agency. When the effects of an undertaking are on lands of tribal interest, a Federally recognized tribe may also, by agreement with the lead agencies, become a cooperating agency. In addition, NEPA compliance may involve a variety of other participants, often referred to as “stakeholders,” which include third-party contractors or consultants, interest groups, and interested citizens.

SHPO

Q: Who is the SHPO and what do they do?

A: The National Historic Preservation Act (NHPA) authorizes a state historic preservation officer (SHPO) for each state as well as the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Republic of the Marshall Islands, Federated States of Micronesia, Commonwealth of the Northern Marianas, Republic of Palau, and Guam – for a total of 59 SHPOs. During the S106 process, the SHPO represents the preservation interests of its area and citizens to the agencies, local governments, organizations, and individuals involved throughout the 106 process. It also administers the National Register program at the state level. These things together make the SHPO the park’s most important partner in historic preservation, and their cooperation is a critical element of successful Section 106 compliance.

Q: What is the NCSHPO and what does it do?

A: The National Conference of State Historic Preservation Officers (NCSHPO) is a professional association of state government officials who carry out the national historic preservation program as representatives of the Secretary of the Interior as required by NHPA. NCSHPO represents the state historic preservation officers at the national level in a variety of activities, including collaboration with the NPS in producing the Nationwide Programmatic agreement in 2008.

Q: When is the SHPO a participant in the Section 106 compliance process?

A: The state historic preservation officer (SHPO) is always a participant in the Section 106 compliance process. Their input is critical in the identification and evaluation of historic properties, as well as in the assessment of effects and resolution of adverse effects. However, when using the 2008 Nationwide Programmatic Agreement’s streamlined process, the SHPO is not involved at the time of the decision. When this streamlined process is used, parks are required to submit annual reports on those projects.

Q: Who do I contact at the SHPO?

A: The state historic preservation officer (SHPO) is usually part of a larger state historic preservation office, which usually has one staff person devoted to compliance issues. Some SHPO offices are organized according to specialty (archeology, historic architecture, etc.), while others are organized by the Federal agency they assist.

The park Section 106 coordinator should develop a close working relationship with the SHPO office – specifically the person who will be reviewing their Section 106 consultation materials. Remember, while the staff at the SHPO office may be performing the actual reviews of our Section 106 materials, all formal correspondence should be addressed to the state historic preservation officer, with compliance staff copied as appropriate.

Some SHPOs are more open to email and telephone communications, but formal written correspondence is necessary to document compliance.

THPO

Q: What is a THPO and what do they do?

A: A 1992 amendment to the NHPA authorized and formalized responsibilities of Federally recognized Indian tribes in the preservation of significant historic properties on tribal lands. Specifically, Section 101(d)(2) of NHPA allows tribes to assume any or all of the functions of a state historic preservation officer (SHPO) with respect to tribal land. Those functions include identifying and maintaining inventories of culturally significant properties, nominating properties to national and tribal registers of historic places, conducting Section 106 reviews of Federal agency projects on tribal lands, and conducting educational programs on the importance of preserving historic properties.

The decision to appoint a tribal historic preservation officer (THPO) rests entirely with the tribe. If they do decide to appoint a THPO, the THPO’s authority may supersede the SHPO’s authority. Remember that the THPO can choose to assume any or all of the responsibilities of a SHPO. If the THPO chooses to assume Section 106 responsibilities, then we would consult with the THPO, rather than the SHPO with regards to effects of our undertakings on historic properties on tribal lands. If there is no THPO, or if the THPO has chosen not to assume Section 106 responsibilities, then the National Park Service would consult with the SHPO and the Indian tribe(s).

Q: When does a THPO assume responsibilities of a SHPO?

A: The decision whether or not to assume the state historic preservation officer’s (SHPO) responsibilities is made by the tribal governing authority when it applies to establish a Tribal Historic Preservation Officer (THPO), as authorized in Section 101(d) of the NHPA. If the tribe’s approved plan for meeting historic preservation responsibilities under Federal law includes assumption of SHPO duties, then the THPO assumes the responsibilities of the SHPO for any undertaking on tribal land.

Q: When is the THPO a participant in the Section 106 compliance process?

A: A tribal historic preservation officer (THPO) may be a participant in the Section 106 compliance process for Federal projects occurring on tribal lands if the THPO has assumed Section 106 responsibilities. If the THPO has assumed those responsibilities, the park would consult with them rather than the SHPO. Unless the THPO requests that the Federal agency involve the SHPO, the SHPO would not be involved in situations involving historic properties located on tribal lands.

Even if a THPO hasn’t assumed Section 106 responsibilities, they may still be involved whenever there is an activity, program, or project that may affect historic properties of significance to Federally recognized Indian tribes or Native Hawaiian organizations. In that situation, you would be contacting the THPO in its consulting role as a representative of tribal government, rather than in its role as a substitute for the SHPO.

Q: How do I contact a THPO?

A: The NPS American Indian Liaison Office at the Washington Support Office (WASO) maintains a list of current tribal historic preservation officers (THPOs) and their assumed responsibilities. Please keep in mind that the number of THPOs is constantly changing as required by decisions of the tribal governments. Tribes may opt in or opt out of being a THPO at any time. When making contact with a tribe, always check with the liaison office to ensure that you are using the correct contact information.

Q: What is the difference between tribal consultation and consultation with the THPO?

A: As agency official responsible for Section 106 compliance, the superintendent is required to consult with any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to historic properties that may be affected by an undertaking. This requirement applies regardless of the location of the historic property.

Tribal consultation/involvement/participation is different from consultation with the tribal historic preservation officer (THPO), even though they sometimes involve the same people. For instance, consultation on an assessment of effect with a THPO is not the same as tribal participation. Tribal participation is required above and beyond the consultation you do with the THPO for determinations of eligibility, assessment of effects, and resolution of adverse effect.

Sometimes the THPO is the contact for tribal participation, but sometimes not. If there is a designated THPO, check to see how the tribe would like to be involved in tribal participation. If there is no designated THPO, tribal participation in the Section 106 process is conducted through the tribe’s official governmental structure. It is important to understand how the tribe is structured and who to contact. Often, the tribal consultation contact in the absence of a THPO is the tribal chairperson, but this is not always the case. For assistance or direction in tribal consultation, contact the NPS American Indian Liaison Office in Washington.

ACHP

Q: What is the Advisory Council and what does it do?

A: The Advisory Council on Historic Preservation (ACHP) is an independent Federal agency established by the National Historic Preservation Act (NHPA), which also defines the Council’s membership. Supported by a professional staff, the ACHP oversees the Section 106 review process and maintains the regulations 36 CFR 800 that Federal agencies use to comply with Section 106. NHPA charges the ACHP with:

  • advising the President and Congress on historic preservation matters;
  • administering the public review and consultation process for Federal undertakings established by Section 106 of NHPA; and
  • working to improve Federal policies, programs, planning, and decisions when they affect the Nation’s historic and cultural resources.

Unlike the state historic preservation officer (SHPO), which is always involved in the compliance process, the Advisory Council may be directly involved in the Section 106 process for a specific undertaking only under certain circumstances.

Q: Who is on the Advisory Council for Historic Preservation (ACHP)?

A: Permanent members of the ACHP are:

  • the Secretary of the Interior;
  • the Secretary of Agriculture; and
  • the architect of the Capitol.

Also included are members who are designated by the President for fixed terms. They include:

  • four members of the general public;
  • four historic preservation experts;
  • seven Federal agency heads;
  • a member of an Indian tribe or Native Hawaiian organization;
  • a governor; and
  • a mayor.

The ACHP also includes ex officio members, such as the National Trust for Historic Preservation and the president of the National Conference of State Historic Preservation Officers. The Advisory Council is supported by an executive director and a staff. This staff includes general counsel, Office of Preservation Initiatives, Office of Federal Agency Programs, as well as sections for Federal Property Management and for Federal Permitting, Licensing, and Assistance. Most Federal agencies have an assigned staff member in the Office of Federal Agency Programs.

Q: When is the Advisory Council a participant in the Section 106 compliance process?

A: The Advisory Council on Historic Preservation (ACHP) always has the option of participating in the compliance process. This occurs if the ACHP determines that its involvement is necessary to ensure that the purposes of Section 106 are met, or if other participants invite it to participate. The ACHP is likely – but not obligated – to enter the Section 106 process when an undertaking:

  • will have substantial impacts on important historic properties, particularly those of national significance, or on multiple properties within a historic district;
  • presents important questions of policy or interpretation that might be precedent setting or involve programmatic agreements that change the way the standard compliance process operates;
  • has the potential for presenting procedural problems, especially if it involves significant public controversy related to historic preservation issues or is involved or likely to be involved in litigation on the basis of Section 106; and/or
  • presents issues of concern to Indian tribes or Native Hawaiian organizations, including those related to the identification of, evaluation of, or assessment of effects on historic properties to which an Indian tribe or Native Hawaiian organization attaches religious and cultural significance.

Participants in the Section 106 process may seek advice, guidance and assistance from the ACHP on specific undertakings, including the need to resolve disagreements, whether or not the ACHP is formally involved in the review of the undertaking. If questions arise regarding the conduct of the Section 106 process, participants are encouraged to obtain the ACHP’s advice on completing the process.

Q: Who do I contact at the Advisory Council?

A: The Advisory Council on Historic Preservation (ACHP) has a designated staff point of contact for certain Federal agencies. Staff assignments sometimes change, but a complete directory of ACHP staff can be found at the ACHP website. Section 106 correspondence should be addressed to the current director of the ACHP’s Office of Federal Agency Programs with the designated staff contact for NPS copied as appropriate. Generally, you should work with your regional Section 106 coordinator when contacting and communicating with the ACHP.

Access the directory of the ACHP staff website for contact information.

Tribes and Native Hawaiian Organizations

Q: What consultation with tribes and Native Hawaiian organizations is required in the Section 106 process?

A: Section 106 of the National Historic Preservation Act requires the Superintendent to consult with any Federally recognized Indian tribe or Native Hawaiian organization that attaches significance, either religious or cultural, to historic properties that may be affected by an undertaking. This requirement applies regardless of whether the historic property is on or off tribal lands. For more information, you can check out 36 CFR 800.3(c-d). The Federally recognized Indian tribe or Native Hawaiian organization must have a reasonable opportunity to:

  • identify its concerns about historic properties;
  • provide advice on the identification and evaluation of historic properties, including those of traditional religious and cultural importance;
  • articulate its views on the undertaking’s effects on such properties; and
  • participate in the resolution of adverse effects.

It is the responsibility of the superintendent to make a “reasonable and good-faith effort” to identify Indian tribes and Native Hawaiian organizations that should be consulted in the Section 106 process. Consultation should commence early in the planning process to ensure that relevant preservation issues are identified and discussed, and concerns about the confidentiality of information on historic properties are resolved.

Q: What is a “Federally recognized” Indian tribe?

A: A Federally recognized tribe is an American Indian or Alaska Native tribal entity that, through a formal process, is recognized as having a government-to-government relationship with the United States. This relationship includes the responsibilities, powers, limitations, and obligations attached to that designation, and allows the Federally recognized Indian tribe to apply for funding and services from the Bureau of Indian Affairs.

Federally recognized tribes have inherent rights of self-government (i.e., tribal sovereignty) and are entitled to receive certain Federal benefits, services, and protections because of their relationship with the United States. At present, there are 566 Federally recognized American Indian and Alaska Native tribes and villages, but that number changes frequently.

Q: Does Section 106 consultation involve only Federally recognized Indian tribes?

A: The regulations (see 36 CFR 800.2(c)(2)) state that the park must consult with Federally recognized Indian tribes and Native Hawaiian organizations about undertakings that may affect a historic property with religious and cultural significance to a tribe/organization. However, just as it would with members of the public, parks should also consult with non-Federally recognized tribes/organizations which may attach religious and cultural significance to a potentially affected historic property.

Q: What is the difference between “cultural affiliation” and “traditional association” in terms of the relationship between tribes and parks?

A: Cultural affiliation is “a relationship of shared group identity which can reasonably be traced historically or prehistorically between members of a present-day Indian tribe or Native Hawaiian organization and an identifiable earlier group.” In practice, it is often difficult to make that connection.

Traditional association is more common and is often more appropriate. Traditional associations are social/cultural entities such as tribes, communities, and kinship units, as well as park neighbors, traditional residents, and former residents who remain attached to a park area despite having relocated. The 2006 NPS Management Policies state that these groups or entities are considered “traditionally associated” with a particular park when:

  1. they regard park resources as essential to their development and continued identity as a culturally distinct people;
  2. the association has endured for at least two generations (generally 40 years); and
  3. the association began prior to establishment of the park.”

Identification of Historic Properties

Q: What are “historic properties?”

A: A historic property is described in the National Historic Preservation Act as being a prehistoric or historic district, site, building, structure, or object listed in or eligible for listing in the National Register of Historic Places. Historic properties also include artifacts, records, and material remains that are related to and located within these properties. Properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization are included within this description.

In the Section 106 process, National Register-listed properties and properties that have been determined National Register-eligible but not yet listed are treated the same. In certain instances, park management may decide to treat a property as historic and potentially eligible for the National Register even though it has not been evaluated for National Register listing. This shortcut to a determination of eligibility is discouraged by some SHPOs.

Q: What is the National Register?

A: The National Register of Historic Places is the nation’s official list of properties recognized for their significance in American history, architecture, archaeology, engineering, and culture. It is administered by the National Park Service. The Secretary of the Interior has established the criteria for evaluating the eligibility of properties for the National Register:

  • Significance: Is the property associated with events, activities, or developments that were important in the past? With the lives of people who were historically important? With distinctive architectural history, landscape history, or engineering achievements? Does it have the potential to yield important information through archaeological investigation about our past?
  • Age: Is the property old enough to be considered historic? If it is less than fifty years old, the property may still be eligible for listing if it is of exceptional significance.
  • Integrity: Does the property convey its significance? Does it still look much the way it did during its period of significance? The seven aspects of integrity include location, design, setting, materials, workmanship, feeling, and association.

According to the requirements of Section 110 of the National Historic Preservation Act, all park properties should have been evaluated for National Register eligibility prior to initiation of Section 106 review.

Evaluation should be conducted by someone who meets the Secretary’s professional qualifications standards (see Director’s Order 28, Appendix E, “Qualification Standards and Selective or Quality Ranking Factors for Cultural Resource Specialists”), or be reviewed and approved by someone who does. Findings of eligibility or ineligibility must always have the agreement of the state historic preservation officer (SHPO) and/or tribal historic preservation officer (THPO).

During Section 106 review, the park’s cultural resource management (CRM) team should verify that National Register information is up to date, or identify potentially affected properties that have not yet been evaluated for National Register eligibility. In some instances, a consensus determination with the SHPO that a property is eligible for listing is adequate to move forward with Section 106 review. For more information, visit the National Register website.

Q: What is Section 110 and why is it important to Section 106 compliance?

A: Section 110 of the National Historic Preservation Act (NHPA) mandates Federal agencies to identify and evaluate historic properties. This data can be a helpful tool in compliance with Section 106, since Section 106 also involves the identification and evaluation of historic properties.

Section 110 also outlines broad historic preservation responsibilities of all Federal agencies and aims to ensure that historic preservation is fully integrated into agencies’ ongoing programs. This intent was included in the preamble to the NHPA upon its initial adoption in 1966. When the Act was amended in 1980, Section 110 was added to expand and make more explicit the statute’s statement of Federal agency responsibility for identifying, protecting, and avoiding unnecessary damage to historic properties.
In addition, Section 110 charges each Federal agency to consider projects and programs that further the purposes of the NHPA. It declares that the costs of preservation activities are eligible project costs in all undertakings conducted or assisted by a Federal agency.

Section 110 sets out specific benchmarks for the NPS’s preservation programs, including:

  • historic properties under the jurisdiction or control of the agency are to be managed and maintained in a way that considers the preservation of their historic, archeological, architectural, and cultural values;
  • historic properties not under agency jurisdiction or control but potentially affected by agency actions are to be fully considered in agency planning;
  • agency preservation-related activities are to be carried out in consultation with other Federal, state, and local agencies, Indian tribes, Native Hawaiian organizations, and the private sector;
  • agency procedures for compliance with Section 106 of the Act are to be consistent with regulations issued by the Advisory Council on Historic Preservation; and
  • an agency may not grant assistance or a license or permit to an applicant who damages or destroys historic property with the intent of avoiding the requirements of Section 106, unless specific circumstances warrant such assistance.

The Secretary of the Interior’s Standards and Guidelines for Federal Agency Historic Preservation Programs Pursuant to the National Historic Preservation Act provide details on agency obligations under Section 110.

Q: What is a determination of eligibility (DOE) and how is it made?

A: A DOE, or determination of eligibility, is when a Federal agency determines a property’s eligibility for listing in the National Register of Historic Places, but does not nominate it for listing. Typically, the agency makes a determination about the property’s eligibility and consults with the State Historic Preservation Office (SHPO) or Tribal Historic Preservation Office (THPO). If the SHPO or THPO concurs with the Federal agency determination, the result is a consensus-level determination of eligibility.

The Advisory Council on Historic Preservation may direct a Federal agenda to seek a determination of eligibility from the Keeper of the National Register. A Formal determination may also be requested:

  • by nominating authorities and agency officials for planning purposes, as well as cases where a majority of private owners have objected to National Register listing; and
  • when the Federal agency and the SHPO/THPO disagree about property property’s eligibility for the National Register.

Properties that are listed, or determined eligible but not yet listed, are treated the same throughout the Section 106 process. In certain instances, park management may decide to treat a property as historic and potentially eligible for the National Register even though it has not actually been evaluated for National Register listing.

Q: What are the benefits of National Register listing?

A: In addition to honorific recognition, listing in the National Register has the following benefits for historic properties:

  • consideration in planning for Federal, Federally licensed, and Federally assisted projects through Section 106 of the National Historic Preservation Act, consideration that is also given to properties determined eligible but not yet listed in the National Register;
  • eligibility for certain tax provisions for a 20% investment tax credit for the certified rehabilitation of income-producing certified historic structures, including commercial, industrial, and income-producing residential property;
  • charitable Federal tax deductions for donation of easements or other partial interests in historically important land areas or structures;
  • consideration of historic values in the decision to issue a surface mining permit where coal is located in accordance with the Surface Mining Control Act of 1977; and
  • qualification for Federal grants for historic preservation, when funds are available.

Remember though, owners of private property listed in the National Register are free to maintain, manage, or dispose of their property as they choose so long as there are no Federal monies, permits, licenses, or other involved.

Q: What is the difference between “historic properties” and “cultural resources”?

A: The distinction between the two terms is largely semantic, but nonetheless important. Both the National Historic Preservation Act and the Advisory Council on Historic Preservation (36 CFR 800) use “historic properties” instead of cultural resources.

“Historic properties” is an umbrella term for all properties listed in, or eligible for listing in, the National Register of Historic Places. This includes any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register. Also included are artifacts, records, and remains related to and located within such properties, as well as properties of traditional religious and cultural importance to American Indians that meet National Register criteria.

“Cultural resources” is the term frequently used in the NPS and are defined in Director’s Order 28 as “an aspect of a cultural system that is valued by or significantly representative of a culture or that contains significant information about a culture. A cultural resource may be a tangible entity or a cultural practice. Tangible cultural resources are categorized as districts, sites, buildings, structures, and objects if they are listed in the National Register of Historic Places and, if they are not, as archeological resources, cultural landscapes, structures, museum objects, and ethnographic resources for NPS management purposes.”

In other words, “cultural resources” covers a wider range of resources including sites and archeological resources not eligible for the National Register.

Q: What is a traditional cultural property (TCP)?

A: A traditional cultural property (TCP) is an ethnographic resource that is eligible for inclusion in the National Register because it is associated with cultural practices or beliefs of a living community that are:

  1. rooted in that community’s history and;
  2. important in maintaining the cultural identity of the community.

Curious about what kind of property could be a TCP? They could be:

  • a location associated with a Native American group’s traditional beliefs about its origins, cultural history, or nature of the world;
  • a rural community whose organization, buildings and structures, or patterns of land use reflect the cultural traditions valued by long-term residents;
  • an urban neighborhood that’s the traditional home of a particular cultural group, and reflects its beliefs and practices;
  • an area where Native American religious practitioners have gone historically and in the present day to perform ceremonial activities with traditional cultural rules of practice; and
  • a location where a community has traditionally carried out economic, artistic, or other cultural practices important in maintaining its historic identity.

*Please note: a TCP is not synonymous with “a property of religious and cultural significance to Indian tribes or Native Hawaiian organizations,” that appears frequently in the ACHP regulations.

Q: Does a building have to be 50 years old in order to be eligible for National Register listing?

A: Generally – yes, a property should be at least fifty years old before it is eligible for listing in the National Register, but the National Register also includes properties that have achieved significance within the last fifty years.

Properties less than fifty years old must be exceptionally important to be considered eligible for listing. For example, the Wright Brothers Visitor Center and the Lever House were listed for their architectural significance when they were only 40 and 30 years old (respectively). The Flight 93 crash site in Shanksville, Pennsylvania, was deemed historically significance and listed barely a year after the event occurred on September 11, 2001.

Significance and Integrity

Q: How is a property’s “significance” determined?

A: A historic property’s significance must be evaluated within its historic context. Historic contexts are those patterns or trends in which a specific occurrence, property, or site is understood, and its meaning and significance within history is made clear. Historians, architectural historians, folklorists, archeologists, and anthropologists use different words to describe this phenomenon (such as trend, pattern, theme, or cultural affiliation) but ultimately the concept is the same. Want to know if a property is significant within its historic context? Then you should determine these five things:

  • aspect of prehistory/history the property represents on the local, state, or national level;
  • significance of that aspect of history/prehistory;
  • whether or not in the property illustrates the historic context;
  • how the property illustrates that history; and
  • whether or not the property physically conveys the aspect of prehistory/history with which it is associated.
Q: What is a historic property’s “period of significance?”

A: A historic property’s “period of significance” refers to the period of time in which the property’s significance, making it eligible for listing in the National Register, was attained. A “period” ranges from a particular point in time when an event took place, to a span of years or decades. It does not necessarily begin with or even include the date of construction.

Q: What determines a property’s “integrity?”

A: Integrity means a property is able to convey its significance. To be listed in the National Register of Historic Places, a property not only must meet the National Register criteria for significance, but it also must have integrity. Evaluating for integrity must always be grounded in an understanding of a property’s physical features and how they relate to its significance.

Historic properties either retain integrity (that is, convey their significance) or they do not. The National Register criteria recognizes seven aspects or qualities that, in various combinations, define integrity:

  • Location
  • Design
  • Setting
  • Materials
  • Workmanship
  • Feeling
  • Association

To retain historic integrity a property will always possess several, and usually most, of these qualities. Some specific aspects of integrity are paramount in conveying a property’s significance. Determining which of these aspects are most important to a particular property requires knowing why, where, and when the property is significant.

National Historic Landmarks

Q: What is a National Historic Landmark (NHL)?

A: National Historic Landmarks (NHLs) are historic places designated by the Secretary of the Interior because they possess exceptional value or quality in illustrating or interpreting our national heritage. As of 2013, there were 2,540 historic places that had gained this national distinction.

Working with citizens throughout the nation, the NHL program draws upon the expertise of NPS staff to nominate new landmarks and provide assistance to existing landmarks. If not already listed, NHLs are automatically listed in the National Register.

Q: How are National Historic Landmarks (NHLs) treated differently from other NR properties?

A: Heightened protection for National Historic Landmarks (NHLs) is provided under Section 110(f) of the National Historic Preservation Act (NHPA), requiring the NPS “to the maximum extent possible, undertake planning and actions necessary to minimize harm to any NHL that might be directly and adversely affected by an undertaking.” The Advisory Council on Historic Preservation’s (ACHP) regulations (§800.10) also set forth special requirements for consultation to resolve adverse effects on NHLs. NPS policy dictates that when preliminary planning activities indicate that a proposed undertaking has the potential to adversely affect an NHL, the park should notify the regional 106 coordinator and NHL program manager prior to initiating formal consultation. The project proposal should then be forwarded to the regional office for review and comment and to assist in the identification of alternatives to avoid or minimize the potential adverse effect.

If an adverse effect cannot be avoided, the superintendent must request that the ACHP participate in the consultation process the park will use to resolve the adverse effect. The superintendent should also notify the Secretary of the Interior through the regional NHL coordinator and invite his or her participation as well.

The Standard Compliance Process

Q: What is the standard four-step compliance process?

A: The four-step compliance process, outlined in the regulations governing Section 106 compliance (36 CFR 800) is:

    1. Step One: Initiate the Section 106 Compliance Process
      • Establish if there is an undertaking subject to Section 106 review
      • Identify appropriate SHPO or THPO or other representative of Federally recognized Indian tribes or Native Hawaiian organizations
      • Plan to involve the public
      • Identify other consulting parties
    2. Step Two: Identify Historic Properties
      • Determine scope of efforts and area of potential effect
      • Identify historic properties within that area
      • In consultation with the SHPO/THPO and other consulting parties, evaluate the significance of those properties
      • Determine whether or not historic properties will be affected by the action
    3. Step Three: Assess Adverse Effects
      • Apply criteria of adverse effect to the properties identified in Step Two
      • In consultation with the SHPO/THPO and other consulting parties, determine whether or not the project’s effects will be adverse
    4. Step Four: Resolve Adverse Effects
      • In consultation with SHPO/THPO and other consulting parties, seek ways to avoid the adverse effects
      • If avoidance is not possible, negotiate a memorandum of agreement to resolve, mitigate, or minimize adverse effects.
Q: How do I know which process to use – the standard four-step process or the streamlined process provided under the 2008 NPS Programmatic Agreement?

A: In order to use the streamlined process you must meet these criteria:

  1. Be an activity that is listed in Section III C of the 2008 Nationwide Programmatic Agreement (PA). Those activities are known as “streamlined activities,” which replaces the term “programmatic exclusions” used in the 1995 nationwide PA;
  2. All historic properties, including archeological properties, within the area of potential effects should already be identified, evaluated for significance, and had their eligibility for listing in the National Register determined. All of this should have been done in consultation with the state historic preservation officer and/or tribal historic preservation officer or other representative of a Federally recognized tribe or Native Hawaiian organization;
  3. The park’s Section 106 coordinator, in consultation with appropriate members of the park’s cultural resource management (CRM) team, must have reviewed the project and certified that the effects of the proposed undertaking on any historic property listed or eligible for listing in the National Register will not be adverse based on regulatory criteria (36 CFR 800.5), including consideration of direct, indirect, and cumulative effects. The finding of effect must be “No Historic Properties Affected” or “No Adverse Effect.”

If any of these criteria are not met, the standard four-step compliance process must be used unless there is an approved PA already in place that has been tailored for special circumstances in your park of for a specific project.

Step One

Q: What is Step One of the standard four-step compliance process?

A: The first step is initiation of the compliance process (36 CFR 800.3). This includes:

  • determining whether or not an undertaking will have the potential to affect historic properties and, therefore, if it is subject to Section 106 review;
  • identifying appropriate SHPO,THPO, or other Federally recognized Indian tribes or Native Hawaiian organizations to determine their interest in participating;
  • developing a plan to involve the public;
  • identifying other consulting parties;
  • identifying the interdisciplinary team for project review; and
  • setting up the project in the NPS Planning, Environment, and Public Comment (PEPC) system.
Q: How is the Section 106 compliance process initiated?

A: It is initiated when the park Section 106 coordinator determines if the proposed action is an “undertaking” as defined by Section 106 compliance. Considerations include:

  • Is it a project, activity, or program funded in whole or in part by Federal money?
  • Is it a project, activity, or program that requires a Federal grant, permit, license, or approval?

If any of these criteria are met, then the action likely is an undertaking, and the park Section 106 coordinator should determine if it has the potential to cause effects on historic properties, assuming such historic properties were present. Keep in mind that the effect does not have to be adverse or a certainty in order to affect historic properties. Undertakings can affect historic properties if they

  • change use or character of a building, its structure, or its landscape in any way;
  • disturb the ground;
  • alter noise levels or visual characteristics in the area; or
  • change traffic patterns or land use of an area.

Included in this list are changes to a park’s General Management Plan if those changes intend to alter land use or traffic patterns. Federal undertakings that don’t have the potential to affect historic properties include:

  • personnel actions, including hiring, firing, grade increases, changes to position descriptions, and similar actions;
  • acquisition of equipment and supplies, and;
  • the publication of studies and reports.

If the activity is not an undertaking, or if it doesn’t have the potential to affect historic properties, then no further compliance review is required.

Q: How do I identify appropriate consulting parties?

A: Identification of appropriate consulting parties and clarification of their roles is part of the first step in the four step process. The organizations and individuals that Federal agencies must consult are called “consulting parties.” The regulations (36 CFR 800.2(c)) identify these consulting parties as:

  • the state historic preservation officer (SHPO);
  • the tribal historic preservation officer (THPO) or other tribal representatives;
    representatives of local government;
  • applicants for license permits, Federal assistance or other approvals; and
  • certain individuals and organizations with a demonstrated interest in the undertaking.

These consulting parties should be brought into the process at an early stage. The SHPO will always be involved. The Advisory Council on Historic Preservation’s regulations require a reasonable and good faith effort be made to identify Federally recognized American Indian tribes or Native Hawaiian organizations that might attach religious and cultural significance to properties that may be affected by an undertaking. During the first step of the process, the park should consult with the SHPO to help identify such tribes and then invite them to participate in consultation.

Finally, keep in mind it is also possible to involve additional consulting parties later in the process. As historic properties are identified, potential project effects may become better understood, and the interests of other parties become clearer.

Q: How do I involve the public?

A: In consultation with the state and the tribal historic preservation officers, the park should plan how and when it will involve the public, since “the views of the public are essential to informed Federal decision making in the Section 106 process” (36 CFR 800.2(d)). This doesn’t mean that a written plan must be produced, but rather that the park must identify appropriate times for public input and how it will communicate with the public.

The park should ensure that it is providing enough easily accessible information so that meaningful comments can easily be provided by the public . It is important to note that the public can express their views at any time, without a formal request from the agency.

The Advisory Council on Historic Preservation has established benchmarks to measure public consultation efforts. The extent of the park’s efforts to involve the public need to reflect:

  • the nature and complexity of the undertaking and its effects;
  • the relationship of the Federal involvement to the total undertaking;
  • the level of likely public interest; and
  • confidentiality concerns.

The park should consider these factors together; one factor cannot be singled out to justify a lesser or greater obligation. The outcome should be a reasonable response that acknowledges all of the factors cited. If you need help coming up with a public consultation plan, please contact your regional Section 106 coordinator.

Step Two

Q: What is Step Two of the standard four-step compliance process?

A: The second step is identification of historic properties (36 CFR 800.4). It includes:

  • determining area of potential effect (APE);
  • identifying historic properties within that area by consulting Section 110 inventories or, if those inventories do not exist, performing a survey of the APE;
  • evaluating the significance of those properties in consultation with the SHPO/THPO and other consulting parties; and
  • determining whether or not historic properties will be affected by the undertaking.
Q: How do I identify historic properties?

A: If the requirements of Section 110 have been met, and inventories are complete and up-to-date, you can identify historic properties by consulting the List of Classified Structures, the Cultural Landscape Inventory, and the Archeological Site Management Information System. These inventories should identify all historic properties on NPS lands that have been identified and undergone at least preliminary evaluation. If you‘re not sure of how to access these systems, contact your regional Section 106 coordinator

Another good resource to utilize is your park’s cultural resources program manager as they may know of potentially eligible historic properties that have not yet been evaluated. This is especially true for archeological resources, since large sections of most parks have not been surveyed for those resources, and additional survey work may be required. Even with complete inventories, it is important to consider whether conditions have changed since earlier surveys were conducted. Has a previously listed property lost integrity? Has a property gained historical significance since the time of the last survey?

Finally, consultation with the state historic preservation officer, tribal historic preservation officer, Native Hawaiian organizations, and other consulting parties can help identify additional historic properties. In particular, traditional cultural properties and cultural landscapes were often overlooked in older surveys.

Q: What is the APE or “area of potential effects?”

A: Area of potential effects (APE) refers to the geographic area(s) where an undertaking may directly or indirectly affect the character or use of a historic property, if present. The APE is influenced by the scale and nature of an undertaking, and may differ based on the kinds of historic properties and the kinds of effects the undertaking may cause. For instance, while the APE for the rehabilitation of a historic structure’s interior may not go beyond that structure’s walls, the APE for exterior alterations might extend out into the cultural landscape. Keep in mind that an APE may also include discontiguous areas because of audible or visual effects that may carry beyond the immediate project area.

Q: What is a “reasonable and good-faith effort” to identify historic properties?

A: Section 106 of the National Historic Preservation Act (NHPA) requires Federal agencies to make a “reasonable and good faith effort” to identify historic properties within an Area of Potential Effects (APE) that may be affected by an undertaking. For more information see 36 CFR 800.4(b)(1).

The identification effort is deemed “reasonable” when it is rationally designed to identify eligible properties that may be affected by the undertaking. A reasonable identification plan is one that includes:

  • documentation of the horizontal and vertical extent of the APE that accounts for direct and indirect effects;
  • an explanation on how the identification plan’s content and scope are informed by past work in the area, level of Federal involvement, the undertaking’s magnitude, and any anticipated effects on historic properties in the APE;
  • a review of existing information on historic properties within the APE, including information about possible historic properties not yet identified;
  • an understanding of applicable professional, state, tribal, and local laws, standards, and guidelines;a familiarity with methodologies used in other historic property surveys in the area that have been effective in terms of time and cost; and
  • a description of steps to be taken during field investigations, the analysis of field results, and subsequent reporting and consultation required to determine the presence or absence of historic properties within the APE.

The identification effort is carried out “in good faith” when it is fully implemented by, or on behalf of, the Federal agency under an identification plan that:

  • is carried out in consultation with (as appropriate) the state historic preservation officer, the tribal historic preservation officer, and any Indian tribe or Native Hawaiian organization that might attach religious and cultural significance to historic properties within the APE;
  • is started in a timely manner that allows appropriate analysis and reporting, with adequate time for review by the consulting parties;
  • is overseen/managed by a qualified individual or individuals who meet the Secretary of the Interior’s standards and have a demonstrated familiarity with the types of historic properties that may be encountered;
  • acknowledges the expertise possessed by Indian tribes and Native Hawaiian organizations to assess the eligibility of historic properties that may possess religious and cultural significance to them (regardless of whether or not such tribes and organizations meet the Secretary’s qualification standards);
  • is fully supported through adequate funding and other necessary resources; and
  • is not being compromised by lack of integrity or omission, such as manipulating or ignoring evidence.
Q: What is a finding of “No Historic Properties Affected?”

A: This finding is appropriate if:

  • there are no historic properties within the area of potential effect, or
  • historic properties are present, but the undertaking will have no effect on their character-defining features.

For example, “No Historic Properties Affected” would occur if the installation of a new pipe line through land surveyed and found not to contain archeological resources. On the other hand, if a twenty year-old building’s interior was to be rehabilitated, that activity would be subject to Section 106, but the finding would be No Historic Properties Affected if the building has been evaluated and found to be ineligible for National Register listing.

Q: How is a finding of “No Historic Properties Affected” documented?

A: For a determination of “no historic properties affected”, the regulations (36 CFR 800.11(d)) require documentation to include:

  • a description of the undertaking that specifies agency involvement and the area of potential effects – including photographs, maps, drawings, as necessary;
  • a description of the steps taken to identify historic properties, including (as appropriate) information gathering efforts; and
  • the basis for determining that no historic properties are present or affected.

Typically, the park 106 coordinator will send this documentation to the SHPO/THPO for their concurrence.

Step Three

Q: What is Step Three of the standard four-step compliance process?

A: An adverse effect occurs when an undertaking alters, either directly or indirectly, a historic property’s characteristics that qualify it for inclusion in the National Register in a way that diminishes the integrity of the property’s location, design, setting, materials, workmanship, feeling, or association. Consideration must be given to all qualifying characteristics of a historic property, including those that may have been identified subsequent to the original evaluation of the property’s eligibility for the National Register.

Adverse effects may include effects that will occur in the future, be they removed in distance, or cumulative.

Examples of adverse effects include, but are not limited to:

  • physical destruction of or damage to all, or part, of the property;
  • alteration of a property – including restoration, rehabilitation, repair, maintenance, stabilization, hazardous material remediation, and making it handicapped accessible – that is not consistent with the Secretary’s Standards for the Treatment of Historic Properties (36 CFR part 68) and applicable guidelines;
  • removal of a property from its historic location;
  • change of the character of a property’s use, or physical features within a property’s setting that contribute to its historic significance;
  • introduction of visual, atmospheric, or audible elements that diminish the integrity of a property’s significant historic features;
  • neglect of a property causing deterioration, except where such neglect and deterioration are recognized as qualities of a property’s religious and cultural significance to an Indian tribe or Native Hawaiian organization; and
  • the transfer, lease, or sale of property out of Federal ownership or control without legally enforceable restrictions to ensure long-term preservation of a property’s historic significance.

Where considered alternatives consist of large land areas, or where access to properties is restricted, an agency official may use a phased process in applying the criteria of adverse effect consistent with phased identification and evaluation efforts conducted pursuant to 36 CFR 800.4(b)(2).

Q: What is a finding of “No Adverse Effect?”

A: A finding of “no adverse effect” means that an undertaking will have an effect on a historic property, but it won’t alter characteristics of the property that qualify it for the National Register. Routine repainting of a historic structure, for example, has an effect on the historic property, but it is usually not adverse. Routine grounds maintenance also has an effect on a cultural landscape, but if done correctly, the effect won’t be adverse.

Q: What is a finding of “Adverse Effect?”

A: A finding of Adverse Effect means that the undertaking will diminish the integrity of a historic property’s characteristics that qualify it for the National Register.

Q: How is a finding of “No Adverse Effect” documented?

A: For a determination of “no adverse effect,” required documentation (36 CFR 800.11(e)) includes:

  • a description of the undertaking, the agency’s involvement, and the undertaking’s area of potential effects (including photographs, maps, drawings, as necessary);
  • a description of the steps taken to identify historic properties;
  • a description of affected historic properties, including information on the characteristics that qualify them for the National Register;
  • a description of the undertaking’s effects on historic properties;
  • an explanation of why the criteria of adverse effect were found applicable or inapplicable, including any future actions or conditions to avoid, minimize, or mitigate adverse effects; and
  • copies or summaries of any views provided by consulting parties and the public.
Q: How is a finding of “Adverse Effect” documented?

A: For a determination of “adverse effect,” required documentation (36 CFR 800.11(e))includes:

  • a description of the undertaking, the agency’s involvement, and the undertaking’s area of potential effects (including photographs, maps, drawings, as necessary);
  • a description of the steps taken to identify historic properties;
  • a description of affected historic properties, including information on the characteristics that qualify them for the National Register;
  • a description of the undertaking’s effects on historic properties;
  • an explanation of why the criteria of adverse effect were found applicable or inapplicable, including any future actions or conditions to avoid, minimize, or mitigate adverse effects; and
  • copies or summaries of any views provided by consulting parties and the public.

Step Four

Q: What is Step Four of the standard four-step compliance process?

A: The fourth step of the standard four-step compliance process is resolution of adverse effects (36 CFR 800.6). This includes:

  • seeking ways to avoid adverse effects in consultation with SHPO/THPO and other consulting parties; or
  • negotiating a memorandum of agreement (MOA) to resolve, mitigate, or minimize adverse effects if avoidance is not possible,.
Q: What should I do if my project will result in an adverse effect on a historic property?

A: Every effort should have been made to redesign the project so that adverse effects are avoided. If adverse effects cannot be avoided, the park must notify the Advisory Council on Historic Preservation (ACHP) that an adverse effect is expected. The Advisory Council must also be invited to participate in resolving those adverse effects if:

  • the agency official wants the Council to participate;
  • the undertaking has an adverse effect on a National Historic Landmark; or
  • a programmatic agreement under 36 CFR 800.14(b) will be prepared.

The ACHP has fifteen days to respond to such an invitation. If it fails to respond within the fifteen day period, the agency can assume that ACHP has decided not to participate, although the ACHP has the right to enter the process at a later date if problems arise.

If the project will adversely affect a National Historic Landmark (NHL), the superintendent is required to consult with the regional director to find ways to avoid the adverse effect prior to any consultation outside the agency. Contact your regional NHL coordinator rather than the regional director when initiating this phase of the consultation process.

The superintendent must continue consultation with the state historic preservation officer, the tribal historic preservation officer, Indian tribes or Native Hawaiian organizations, ACHP (if they choose to participate), and other consulting parties to find ways to avoid, minimize, mitigate, or otherwise resolve adverse effects. If consensus is reached, terms and conditions are executed through a memorandum of agreement (MOA) or a programmatic agreement (PA) that is usually signed by all parties.

Q: How do I resolve or mitigate adverse effects?

A: Sometimes adverse effects cannot be avoided and can only be mitigated. Mitigation refers to finding ways of minimizing or lessening adverse effects to cultural resources. When adverse effects on cultural resources cannot be avoided, typical mitigation measures might include:

  • limiting the magnitude of the undertaking;
  • modifying the undertaking through redesign, reorientation of construction on the project site, or similar changes;
  • repairing, rehabilitating, or restoring affected cultural resources in accordance with the Secretary of the Interior’s Standards and Guidelines;
  • recovering significant architectural elements from and documenting (drawings, photographs, histories) buildings and structures using standards of the Historic American Building Survey (HABS), Historic American Engineering Record (HAER), and Historic American Landscape Survey (HALS) standards; or
  • recovering and recording archeological information and materials.
Q: What are some creative solutions for mitigating adverse effects?

A: Although there are several ways to mitigate adverse effects, some non-standard
mitigation methods might include:

  • redesign to respect the historic setting,
  • “encapsulation” of archeological sites under golf courses or parking lots,
  • relocation of historic structures,
  • providing public interpretation through websites and signs,
  • identification of alternative uses for the historic property,
  • establishment of a preservation fund or a friends group, and
  • collection of oral histories that might enhance continued interpretation of the property.
Q: What is “failure to resolve adverse effects?”

A: A “failure to resolve adverse effects” means the adverse effect can’t be eliminated by changing the undertaking, and that a memorandum of agreement minimizing or mitigating the adverse effect hasn’t been reached through consultation.

If the NPS, SHPO/THPO, or the Advisory Council determine that continued consultation won’t be productive, they should provide written notice to the other parties of the decision to terminate consultation (see 36 CFR 800.7). After notification, the Advisory Council has forty-five days to issue final comments, which the NPS must take into account before making its final decision. Keep in mind, though, that the NPS almost always resolves adverse effects because failing to do so would put the agency, with its mission to preserve and protect resources, in a very bad light. For more information, see 36 CFR 800.7.

Memoranda of Agreement

Q: What is a memorandum of agreement (MOA)?

A: When a resolution of adverse effects has been reached, a memorandum of agreement (MOA) must be prepared and signed prior to the project’s commencement. The MOA documents agreed-upon terms, and has three principal parts:

  • Preamble language, which includes a series of “whereas” statements identifying the project and affected historic properties; cites the legal authority of the MOA; and names the parties who developed the agreement;
  • Stipulations, which include agreed-upon mitigation(s); identify who is responsible for carrying out the measures; provide for termination and reconsideration of the terms of the MOA if the undertaking has not been implemented within a specified time; provide for resolving disputes, monitoring, and reporting on implementation if needed; address subsequent discovery or identification of additional historic properties affected by the undertaking; and provide for amending the agreement; and
  • Signatures of the agency and other parties.

MOAs are never used when historic properties aren’t affected, or when there is no adverse effect. The Advisory Council has a template to help guide development of an MOA, and your regional Section 106 coordinator can also help you in developing an MOA.

Q: How is a memorandum of agreement (MOA) different from a programmatic agreement (PA)?

A: A memorandum of agreement (MOA) is different from a programmatic agreement (PA) in that MOAs are used to resolve known and definable adverse effects on historic properties. An example of a single, short-term undertaking that might require an MOA is a trail development project that will have an adverse effect on an archeological site.
PAs, in contrast, are used when the effects of an undertaking are not fully known, or as a tool for implementing approaches that do not follow the normal Section 106 process. This is done to streamline and enhance historic preservation and project development efforts. Examples of projects that may require a PA include a park’s Fire Management Plan or a Backcountry Management Plan, both of which involve long-term, repetitive undertakings. Likewise, Section 106 compliance for a road improvement project that is being done in phases over several years and has similar effects on each stretch of the road might be reached through development of a PA.

Q: Who are signatories to an MOA?

A: Principal signatories to a memorandum of agreement (MOA) are the park superintendent, state historic preservation officer (SHPO) and/or tribal historic preservation officer (THPO), and the Advisory Council on Historic Preservation (ACHP) if they are participating in the consultations. If the ACHP is not part of the consultation, then the MOA is executed between the park and SHPO/THPO and filed with the ACHP. The principal signatories can also invite any party – called invited signatories – to assume responsibility for the completion of treatment measures specified under the MOA. Invited signatories can also include Federally recognized tribes that attach religious and cultural significance to resources off tribal lands that would be affected by the MOA. These signatories are legally bound to see that the MOA is properly implemented, and they have the exclusive right to execute, amend, or terminate the agreement.

Concurring parties, unlike principle and invited signatories, do not have rights with regard to the MOA. Their cooperation is used to indicate that they are in agreement with the terms of the MOA. For example, if the NPS, the SHPO, and the Army Corps of Engineers negotiated an MOA to resolve adverse effects on a significant Native American site not on tribal lands, they could ask tribes to be concurring signatories to show evidence that those tribes were satisfied with the resolution of adverse effects. By their signatures, the agencies were bound to the terms of the MOA, but the tribes, as concurring signatories, had no legal authority to enforce the MOA.

Programmatic Agreement

Q: What is a programmatic agreement (PA)?

A: A programmatic agreement (PA) is a type of Section 106 agreement typically developed for a large or complex project that would otherwise require numerous individual Section 106 actions. A PA can tailor the four-step Section 106 review process for a particular program, or establish procedures for assessing and resolving adverse effects when they otherwise can’t be determined before project approval. For more information on the procedures for developing a PA, check out 36 CFR 800.14(b).

It’s important to know that a PA may be appropriate:

  • when effects on historic properties are similar and repetitive, or are multi-state or regional in scope;
  • when effects on historic properties cannot be fully determined prior to approval of an undertaking;
  • when non-Federal parties assume major decision-making responsibilities;
  • when routine management activities are undertaken at Federal installations, facilities, or other land management units; or
  • when circumstances warrant a departure from the normal Section 106 process.
Q: How is a programmatic agreement (PA) different from a memorandum of agreement (MOA)?

A: While both a memorandum of agreement (MOA) and a programmatic agreement (PA) can conclude a Section 106 review, there are differences between the two.

MOAs are used to resolve known and definable adverse effects on historic properties that result from a particular Federal undertaking. An example of a single, short-term undertaking that may require an MOA is a trail development project that will result in an adverse effect to an archeological site.

PAs, in contrast, are used when the effects of an undertaking are not fully known. They can also be used as a tool for implementing approaches that do not follow the normal Section 106 process, or for Section 106 compliance related to repetitive projects. This is done to streamline and enhance historic preservation and project development efforts. Examples of projects that may require a PA include a park’s Fire Management Plan or a Backcountry Management Plan, both of which involve long-term, repetitive undertakings.

Q: How do I prepare a programmatic agreement (PA)?

A: A programmatic agreement (PA), like a resolution of adverse effects and a memorandum of agreement (MOA), is typically the result of continued consultation about ways to ensure there will be no adverse effects to historic properties. The formats for PAs and MOAs are quite similar, as both typically including the same elements. The 2008 Nationwide Programmatic Agreement for Section 106 compliance includes all of the typical components of a PA, but remember that a PA must be tailored to specific circumstances. Your regional Section 106 coordinator can help you in developing a PA.

As a guideline, every PA should:

  • identify all parties to the agreement;
  • specify how additional historic properties will be identified, evaluated, and treated;
  • list activities excluded from, or requiring, further review;
  • clarify public involvement;
  • establish monitoring protocols;
  • specify processes for amendment, dispute resolution, termination, etc.; and
  • establish protocols for preparing historic preservation plans and other administrative and documentary materials.
Q: Who are signatories to a programmatic agreement (PA)?

A: Principal signatories to a programmatic agreement (PA) are the park superintendent, state historic preservation officer and/or tribal historic preservation officer, and the Advisory Council on Historic Preservation if they are participating in consultations. The signatories have the authority to execute, amend, or terminate the PA.

The signatories may invite others to be signatories, which are referred to as invited signatories. These can include:

  • any party that assumes a responsibility under the PA; or
  • an American Indian tribe or Native Hawaiian organization attaching religious and cultural significance to resources off tribal lands that would be affected by the PA.

Once the invited signatories have signed a PA, they have the same rights to terminate or amend the PA as the other signatories. Remember, the refusal of any party invited to be a signatory to a PA does not invalidate the PA between the other parties.

The signatories may also invite all other consulting parties to concur with the PA. Concurring signatories do not have the right to amend or terminate a PA. Their signature indicates only that they are familiar with the terms of the agreement and do not object to it. The refusal of any consulting party invited to concur in the PA does not invalidate the agreement.

2008 NPS Nationwide Programmatic Agreement (PA)

Q: What is the 2008 NPS Nationwide Programmatic Agreement for Section 106 compliance?

A: In 2008, the NPS signed a Nationwide Programmatic Agreement with the Advisory Council on Historic Preservation (ACHP) and the National Conference of State Historic Preservation Officers (NCSHPO) concerning compliance with Section 106.

Within parks, there are a large number of low-impact or repetitive activities on a regular basis that have the potential to affect properties listed or eligible for listing in the National Register of Historic Places and thus requiring consultation under Section 106. To reduce workloads for everyone concerned, this programmatic agreement (PA) was developed to streamline the process. The PA provides an efficient process for compliance with Section 106 for routine NPS park operations, management, and administration activities. Instead of the standard four-step review process, the PA simplifies the review process for undertakings that meet established criteria.

The PA tailors the Section 106 process to NPS program needs. It recognizes that the NPS has qualified cultural resource specialists, and policies and guidelines in place to protect cultural resources. To use the PA, a project review by experts from a standing team of cultural resource management specialists (CRM team) representing the major disciplines (history, historic architecture, cultural landscapes, museum collections, anthropology/ethnography, and archeology) is required. Under the PA, certain types of routine actions that are unlikely to adversely affect cultural resources are called “streamlined activities.” Our internal review of streamlined activities don’t need to be followed by a SHPO review, if:

  • the proposed action is eligible for streamlined review as defined in Section III.C of the nationwide PA;
  • all cultural resources within the APE have been evaluated for National Register eligibility and SHPO/THPO has concurred with the eligibility determination; and
  • our internal review determines that the effect of the undertaking on the eligible cultural resource(s) will not be adverse.

Training on the Nationwide PA is readily available. WASO has developed a “Nationwide Programmatic Agreement Toolkit.” Anyone with responsibilities under the PA—especially the superintendent, the park Section 106 coordinator, and members of the park CRM team—should successfully complete this training.

Q: How does the 2008 Nationwide PA streamline Section 106 compliance?

A: The 2008 Nationwide Programmatic Agreement (PA) streamlines compliance by allowing qualified undertakings to go forward without state historic preservation officer involvement. The PA still requires review by the park’s Section 106 coordinator and appropriate members of the park’s CRM team, documentation to the standards described at 36 CFR 800.11, and annual and biennial reporting on use of the PA. The streamlining occurs because no consultation is required and the 30-day waiting period for SHPO review is waived. Keep in mind that some consultation with Federally recognized tribes or Native Hawaiian organizations may still be necessary.

Q: What are the requirements for using the 2008 Nationwide Programmatic Agreement (PA)?

A: Section III.A of the Programmatic Agreement (PA) lists the criteria for using the streamlined review process:

  • The proposed undertaking must be one of sixteen types of activities eligible for streamlined review as defined in the PA. See Section III.C of the PA for a list of those activities. Be sure to read the full description of each streamlined activity to ensure that the intent of each is understood. Contact your regional Section 106 coordinator if there is any doubt as to the applicability of streamlined review of a particular project.
  • All cultural resources within the area of potential effect (APE) must have already been identified in consultation with the SHPO/THPO and Native Hawaiian organization, and evaluated for National Register eligibility. The SHPO/THPO must have concurred with the eligibility determination. This means that all historic structures, cultural landscapes, ethnographic resources, and archeological resources within the APE have already been identified and evaluated.
  • The undertaking has been reviewed by the appropriate members of the park’s CRM team and the team has determined that the effect of the undertaking on the eligible cultural resource(s) will not be adverse. If an adverse effect is expected, the standard, four-step compliance process must be used.

Use of the PA assumes that the undertaking will be carried out in conformity with all of the requirements of the PA, the Secretary’s Standards and Guidelines for the Treatment of Historic Properties, and NPS Management Policies. As with all Section 106 compliance actions, the undertaking and assessment of effect for streamlined review must be properly documented in accordance with the regulations at 36 CFR 800.11. Finally, all undertakings where the PA was used to streamline compliance must be included in the annual report to the SHPO and the biennial report to the Regional Director, as defined in Section VIII of the PA.

Q: Can the Streamlined Review Process be modified?

A: Yes, but it must be a formal modification agreed to by the signatories of the nationwide programmatic agreement (PA). The PA is intended to meet specific park needs as outlined in Section III.D, but the list of activities eligible for streamlined review can be amended and new ones adopted if the SHPO agrees. Because of the logistical difficulties in amending the nationwide PA, it might be easier to develop a park-specific PA or a state-wide PA in consultation with SHPO. If you’d like additional guidance, please contact your regional Section 106 coordinator.

Q: Can a park that consults with a THPO rather than a SHPO use the 2008 Nationwide PA?

A: Generally, no. Since there were no tribal signatories to the 2008 Nationwide PA, Section 106 compliance requires following the standard four-step process for any undertaking on tribal lands. A park could consider working with a tribal historic preservation officer (THPO) to get his/her signature on the 2008 PA or to develop a modified version that could even include additional or modified streamlined activities. This might be especially useful where the park has a close, ongoing, working relationship with the THPO, but remember that a revised PA would need to be re-negotiated on a tribe by tribe basis.

Q: Can a park use the 2008 Nationwide PA when the undertaking involves a historic property that is sensitive to tribes or Native Hawaiian organizations?

A: Generally, yes. However, because there were no tribal or Native Hawaiian organization signatories to the PA, additional consultation with tribes or Native Hawaiian organizations in identification of historic properties and assessment of effects may be appropriate.

Q: How is a park’s use of the 2008 Nationwide PA monitored?

A: To monitor compliance, the 2008 programmatic agreement (PA) requires parks to hold biennial meetings with the SHPO and to provide annual reports to their SHPO and biennial reports to their Regional Director. These reports identify any undertaking during which the park used the streamlined review process, and report on the previous calendar year or years.

Q: How do I prepare the Annual Report required by the 2008 Nationwide PA?

A: A report function has been set up in the NPS Planning Environment and Public Comment (PEPC) system that produces a park’s annual reports automatically. It can be accessed by:

  • clicking the “Reports” tab in the PEPC toolbar; then
  • clicking “NHPA Annual/Biennial Report;” then
  • choosing your park from the drop-down menu; then
  • selecting “Streamlined Review” for the documentation method; then
  • selecting the appropriate date range (e.g., 1/1/2010 – 12/31/2010)

An Excel report can be generated showing all projects that utilized the Streamlined Review process, as well as which CRM specialists reviewed each undertaking. The report should be submitted to the appropriate SHPO or SHPOs no later than January 31 of each year. The reports and accompanying correspondence should be copied to your regional 106 coordinator. Remember that for PEPC to process an accurate report, information must have been entered into PEPC for each streamlined activity throughout the year and the superintendent must have signed the assessment of effect.

Q: How do I prepare the Biennial Report required by the 2008 Nationwide PA?

A: A report format has been set up in the NPS Planning Environment and Public Comment (PEPC) system to facilitate preparation of a park’s biennial report to the regional director. A memo goes out from WASO to the regional directors, and then on to the parks setting a due date and guidelines for submission. Generally, these reports are due in the winter of odd numbered years.

The biennial report differs from the Annual Report in that it includes all projects/undertakings subject to Section 106 review, as well as the documentation method used for compliance. The biennial report can be accessed in PEPC by:

  • clicking the “Reports” tab in the toolbar, then
  • clicking “NHPA Annual/Biennial Report,” then
  • choosing the park from the drop-down menu, then
  • selecting “all” for the documentation method, and finally
  • selecting the appropriate two-year date range (e.g., 1/1/2009 – 12/31/2010).

An Excel report will be automatically generated along with a Word document that will need to be completed manually. The Word document should include CRM team members, 106 training that has occurred, and information on the biennial meetings with the SHPO and other consulting parties. The report should be submitted to the regional director through the regional 106 coordinator at a date specified by the regional director. The parks’ biennial reports to the regional director will include four components (see PA Section I.A.2):

  1. an Excel report on use of PA, generated from PEPC using the Biennial Report format provided and covering the preceding two year period (e.g., 1/1/2009 – 12/31/2010);
  2. a description of Section 106 compliance training that has been completed by the superintendent, the park 106 coordinator, and other park staff in the last two years. Include dates of training, type of training (on-line, seminar, etc.), location, and who conducted the training (regional office, Advisory Council on Historic Preservation, etc.);
  3. a list identifying the park 106 coordinator and the standing members of the cultural resource management (CRM) team as required by the PA and appointed by the Superintendent. This list should include name, title, and contact information. It will be compiled and transmitted by the regional 106 Coordinator to the appropriate SHPO (see PA Section II.E.3); and
    information on the biennial meeting with the SHPO and other consulting parties.

Emergencies and Inadvertent Discoveries

Q: What constitutes a disaster or emergency situation for purposes of Section 106?

A: A disaster or emergency under Section 106 is typically declared by the President, tribal government, governor of a state, and, in immediate threats to life or property, by the superintendent. For more information, see 36 CFR 800.12(a).

Emergencies, as defined in the Section 106 regulations, refers to undertakings that will be implemented in direct response to a disaster or emergency within 30 days after the disaster/emergency has been formally declared. Examples of emergencies include storm damage, fire, tsunami, earthquake, and other such disasters. Examples of emergency undertakings could include removal of storm debris from roads, installation of temporary supports to prevent building collapse, and anything to do with search-and-rescue operations.

In the case of any declared emergency or disaster, the superintendent must notify the state historic preservation officer/tribal historic preservation officer (SHPO/THPO) within 24 hours, or as soon as conditions permit. If the emergency action requires work beyond the thirty-day period, the superintendent can request an extension of the emergency period from the Advisory Council, but they must do so before the end of the initial thirty days.

Actions taken after the immediate emergency is over, such as long term stabilization and repairs, are not emergency actions. Compliance for these undertakings must be completed in accordance with either the streamlined review process set forth in the nationwide PA or the standard four-step process.

Q: What constitutes a disaster or emergency situation for purposes of Section 106?

A: A disaster or emergency under Section 106 is typically declared by the President, tribal government, governor of a state, and, in immediate threats to life or property, by the superintendent. For more information, see 36 CFR 800.12(a).

Emergencies, as defined in the Section 106 regulations, refers to undertakings that will be implemented in direct response to a disaster or emergency within 30 days after the disaster/emergency has been formally declared. Examples of emergencies include storm damage, fire, tsunami, earthquake, and other such disasters. Examples of emergency undertakings could include removal of storm debris from roads, installation of temporary supports to prevent building collapse, and anything to do with search-and-rescue operations.

In the case of any declared emergency or disaster, the superintendent must notify the state historic preservation officer/tribal historic preservation officer (SHPO/THPO) within 24 hours, or as soon as conditions permit. If the emergency action requires work beyond the thirty-day period, the superintendent can request an extension of the emergency period from the Advisory Council, but they must do so before the end of the initial thirty days.

Actions taken after the immediate emergency is over, such as long term stabilization and repairs, are not emergency actions. Compliance for these undertakings must be completed in accordance with either the streamlined review process set forth in the nationwide PA or the standard four-step process.

Q: When would Section 106 apply in a disaster or emergency situation?

A: In determining if a park has Section 106 responsibilities in a disaster or emergency situation, they must first determine whether they will be carrying out, assisting, or permitting an undertaking that may affect historic properties in response to, or as a result of, a disaster or emergency. This may include construction staging, temporary storage, building access routes, building stabilization, temporary storage of debris, constructing haul roads for removing debris, and other associated actions. If the agency has such an undertaking, Section 106 will apply. Remember, though, that immediate emergency rescue and salvage operations necessary to preserve life or property are exempt from the provisions of Section 106.

Q: Are any responses to emergencies exempt from Section 106 compliance?

A: Yes. Immediate rescue and salvage operations conducted to preserve life or property are exempt from the provisions of Section 106 (please see 36 CFR 800.12(d)). Such an exemption applies regardless of whether a disaster/emergency has been formally declared, but must first be reviewed by the superintendent or other agency official. Why, you may ask? It is because the regulations implementing Section 106 allow agencies to take necessary actions in a timely manner to protect public health and safety.

When the superintendent or other agency official becomes aware of a disaster or emergency situation, as explained in the paragraph above, it reviews the undertaking to determine if it:

  • needs to be carried out immediately to protect life and/or property. Such action is exempt from Section 106; or
  • can be delayed (to at least allow notification and some manner of consultation) without endangering people’s lives or property. Such action is not exempt from Section 106.

For example, undertakings likely to receive “exempt” responses would be the replacement of collapsed bridges in an active evacuation route; any actions to stop or slow down an existing fire from spreading (though planned, controlled fires are subject to Section 106); and removal of debris or portions of a building to reach trapped persons.

Examples of undertakings likely to receive a “not exempt” response include general debris cleanup after a tornado has passed; permanent replacement of utilities that were damaged by a disaster; and repair of buildings and structures that have been damaged by a disaster but are not endangering people or other properties.

Please remember, when a park considers demolishing structures damaged by a disaster or emergency event where Federal approval of demolition is necessary, or where receipt of Federal funds for such demolition is likely, it is important that the structures have been evaluated for National Register eligibility. The park should understand that the Section 106 compliance process will still need to be addressed, including mitigation for the demolition of the historic structure, because demolition is still considered to be an adverse effect, even if the structure has been damaged.

Q: What is the role of the state historic preservation officer (SHPO) during a disaster or emergency response?

A: The state historic preservation officer (SHPO) has multiple responsibilities during a disaster response. Such responsibilities include enforcing state historic preservation and environmental review laws (which may have special provisions for emergencies) as well as conducting their usual duties under Section 106.

The SHPO should be the agency’s primary point of contact for actions involving or affecting historic properties during a disaster or emergency response. SHPO staff should be included in the response planning, and closely consulted in the development of recovery plans. The SHPO maintains databases and information that can help locate and identify historic properties within the impacted area, and may also be able to provide additional information regarding tribal or Native Hawaiian interests in historic properties and help facilitate an agency’s outreach to Indian tribes or Native Hawaiian organizations.

Q: What is the role of the tribal historic preservation officer (THPO) during a disaster or emergency response on tribal lands?

A: The park must consult with Federally recognized Indian tribes and Native Hawaiian organizations regarding undertakings that may affect a historic property to which religious and/or cultural significance may be attached, including those historic properties located off tribal lands. Many tribes or Native Hawaiians may be interested in all parts of the response and recovery actions, so you should notify them as early as possible in the process and keep them well informed throughout the process. Where possible, they should be provided with multiple opportunities to visit affected sites and monitor actions that affect historic properties of significance to them. It is important to note that the Indian tribe may select the THPO, or it may select another individual, to represent tribal interests off tribal lands during an emergency situation.

Be aware that historic properties of religious and cultural significance are frequently located on ancestral, aboriginal, or ceded lands of Indian tribes. Tribal consultation can’t be limited when undertakings affect tribal lands, and can’t be inclusive of only those tribes currently located within the state boundaries. You should also be aware that in Hawaii, Native Hawaiians may not currently reside on the island containing a historic property to which its members attach religious and cultural significance.

Q: What is the role of ACHP during a disaster or emergency response?

A: The Advisory Council on Historic Preservation (ACHP) provides oversight for the Section 106 process used following a disaster or emergency (which is outlined in 36 CFR 800.12.) If the ACHP’s role has been defined in agency procedures developed for compliance with Section 106 or a Programmatic Agreement in emergency situations, the ACHP will operate in accordance with those provisions. During the development of such procedures and programmatic agreements, the ACHP can provide advice and assistance to an agency, and must approve any special procedures such as programmatic agreements (PA) that are developed to deal with the aftermath of a disaster.

If such procedures or a programmatic agreement aren’t in place, the ACHP must be notified when you decide to follow the expedited review process as described in 36 CFR 800.12(b)(2).

Keep in mind, ACHP is available to answer questions and provide technical assistance in the Section 106 process during a disaster or emergency situation.

Q: What are inadvertent discoveries and how should they be handled?

A: An inadvertent, or accidental, discovery happens when previously unidentified historic properties are discovered during an undertaking, or as a result of events such as erosion, storm surge, or animal activity.

If there is an inadvertent discovery, you should stop all activities that could potentially affect the discovery. Your park should have a plan in place for dealing with inadvertent discoveries, which should include immediate mitigation measures and notification of the state historic preservation officer (SHPO)/tribal historic preservation officer (THPO), Indian tribe, or Native Hawaiian organization.

If the discovery is believed to contain human remains, the superintendent must comply with applicable Federal, state and/or local laws and NPS policy/procedures regarding the discovery and treatment of human remains. Remember, human remains or other cultural material may fall under the Native American Grave Protection and Repatriation Act (NAGPRA) or Archaeological Resources Protection Act (ARPA), and if it is determined that they do, the superintendent should comply with those laws. See Question 99 for direction on dealing with human remains. If human remains aren’t present, the superintendent will consult with the park’s Section 106 Coordinator and the appropriate members of the CRM team, and make reasonable efforts to avoid, minimize, or mitigate adverse effects on those discoveries by doing the following:

  • avoiding further direct effects until it’s determined if the properties are eligible for the National Register of Historic Places or are Traditional Cultural Properties, which should be done as quickly as possible;
  • notifying the SHPO/THPO or tribal government of the discovery within twenty-four hours or as soon as possible;
  • ensuring a field evaluation is conducted within forty-eight hours by a qualified professional of the appropriate discipline to determine the context and significance of the resources, and to record and document the findings in writing with appropriate photographs and drawings.

If disturbance of the resource is minimal and there will be no effect on historic properties, and if the disturbing project can be relocated to avoid the property the superintendent will conclude this procedure and notify the SHPO/THPO. The superintendent can also conclude the procedure (and notify the SHPO/THPO) if the property is determined to not be eligible for the National Register. But keep in mind that archeological resources not eligible for the National Register, and thus not subject to Section 106 compliance, may still be protected under ARPA.

If the property is eligible for the National Register – or has not yet been evaluated for eligibility – and the activity cannot be relocated, the superintendent will consult with the SHPO/THPO on National Register eligibility. If necessary, they should also quickly identify appropriate treatment measures to minimize impacts to the property, and to ensure that the undertaking is completed in a timely manner. This may require additional Section 106 compliance.

Unless materials discovered are governed by NAGPRA, appropriate consulting parties should be notified of all actions within a reasonable time after they are completed. Inadvertent discoveries must be documented in the project file.

Finally, whenever a project involves ground disturbance, the park should always have a plan in place to alert contractors to the kinds of items that could be exposed that might trigger NAGPRA, and especially for large-scale projects, to require archeological monitoring

Q: What do I do about burials and burial items?

A: If human remains are inadvertently discovered during a project, immediately stop all ground disturbing activity in the area, protect the burial from harm and exposure to the elements, and do not move or remove any burial items. State laws on human remains vary, but generally you’re supposed to notify local law enforcement, who will contact the coroner to ensure that the remains are not part of a crime scene, and are indeed part of a burial.

At the same time, or soon after contacting local law enforcement, your park should also contact the appropriate state historic preservation officer (SHPO) or tribal historic preservation officer (THPO). If the remains are not part of a crime scene, the requirements of the Native American Grave Repatriation and Protection Act (NAGPRA) may apply, and consultation with tribal representatives or Native Hawaiian organizations should be begin immediately so that the appropriate treatment of the remains can be determined. If the human remains or other cultural material do fall under NAGPRA, the superintendent will have to comply both with NAGPRA and the Archaeological Resources Protection Act (ARPA). The superintendent must ensure that any human remains are left in situ, are not exposed, and remain protected while compliance with NAGPRA, ARPA, or other applicable Federal, state, and/or local laws and procedures is undertaken. For assistance or more information, contact your regional Section 106 coordinator.

Documenting Compliance

Q: What is an assessment of effects or XXX form?

A: The “Assessment of Actions Having an Effect on Cultural Resources” form (see Appendix O of Director’s Order 28) is used by the NPS to describe and document the potential effects of a proposed action that may affect historic properties. This form has often been referred to as a XXX because at one time it required three signatures, as well as an AEF, or an AoE form.

The form and supporting information – which often includes photographs, maps, plans and specifications, and other types of documentation – is typically used to initiate Section 106 consultation with the SHPO, and is critical in documenting compliance with Section 106. The form can be generated automatically from project data entered at Step 4 in the Planning, Environment, and Public Comment (PEPC) system, which must be used to document compliance.

Q: What are the required elements of an assessment of effect form?

A: Required elements of an assessments of effect form include:

  • a description of the undertaking, which should include enough detail so that reviewers who aren’t familiar with the project can understand its scope of work;
  • the project’s area of potential effects;
  • historic properties potentially affected;
  • review comments from the park’s CRM team; and
  • the park’s final assessment of effects.

In addition, if the Streamlined Process under the 2008 Nationwide PA is being followed, then the assessment of effects form should include review by the appropriate members of the park’s Cultural Resource Management specialists (CRM team) in archeology, historical architecture, historical landscape architecture, history, anthropology, and museum collections.

Q: What is PEPC and am I required to use it?

A: “PEPC” is the acronym for the Planning, Environment, and Public Comment system established by the NPS to track, record, and facilitate the compliance process for park projects involving natural or cultural resources. Its use is required for documenting compliance with Section 106 and with the National Environmental Policy Act.

Q: What information must be compiled to demonstrate compliance with Section 106?

A: Advisory Council on Historic Preservation (ACHP) regulations list the types of specific information necessary for each type of assessment of effect (see §800.11). This documentation must be submitted to SHPO/THPO and consulting parties, and their agreement is necessary before a project is implemented.

Documentation must be retained as part of the park’s permanent record of compliance. In addition, each park must submit annual reports on its use of the streamlined Section 106 review process as well as biennial reports to the regional director.

Q: How long do I have to keep compliance documentation?

A: Documentation of compliance is part of the administrative record for a project, and should be retained indefinitely as part of the park’s permanent archives. See Director’s Order #11D: Records and Electronic Information Management for additional information.

Q: How is a finding of “No Historic Properties Affected” documented?

A: For a determination of “no historic properties affected”, regulations (see 36 CFR 800.11(d) for more information) require that documentation includes:

  • a description of the undertaking, specifying the Federal government’s involvement, and the undertaking’s area of potential effects, including photographs, maps, and drawings, as necessary;
  • a description of the steps taken to identify historic properties, including (as appropriate) efforts to seek information during the identification of historic properties; and
  • the basis for determining that no historic properties are present or affected.

Typically, the park 106 coordinator will send this documentation to the SHPO/THPO for their concurrence.

Q: How are findings of “No Adverse Effect” and “Adverse Effect” documented?

A: For a determination of “no adverse effect,” the regulations (see 36 CFR 800.11(e) for more information) require that documentation includes:

  • a description of the undertaking, specifying the Federal government’s involvement, and the undertaking’s area of potential effects, including photographs, maps, drawings, as necessary;
  • a description of the steps taken to identify historic properties;
  • a description of the affected historic properties, including information on the characteristics that qualify them for the National Register;
  • a description of the undertaking’s effects on historic properties;
  • an explanation of why the criteria of adverse effect were found applicable or inapplicable, including any conditions or future actions to avoid, minimize, or mitigate adverse effects; and
  • copies or summaries of any views provided by consulting parties and the public.

Section 106 and NEPA

Q: What is the relationship between Section 106 and NEPA?

A: The National Historic Preservation Act (NHPA) and the National Environmental Policy Act (NEPA) are separate laws, with separate regulations and compliance procedures. Compliance procedures for these laws overlap at certain points, and while there are ways to coordinate the compliance procedures, one law never supersedes the other. Generally, Section 106 compliance informs NEPA compliance, and thus NEPA requires that Section 106 be concluded before the NEPA decision document is signed. NEPA decision documents include a categorical exclusion (CE), a finding of no significant impact (FONSI), or a record of decision (ROD). For the purposes of NEPA, Section 106 compliance can be completed for all three of these through a project-specific programmatic agreement (PA), the nationwide PA, or the standard four-step process. For additional information see the Advisory Council’s NEPA and NHPA: A Handbook for Integrating NEPA and Section 106.

Q: What is the role of the CRM team in the development of a NEPA document?

A: The Section 106 coordinator and the CRM team should be actively involved in the development of NEPA documents, including categorical exclusions (CE), environmental assessments (EA), and findings of no significant impact (FONSI), as well as environmental impact statements (EIS) and records of decision (ROD). While NEPA practitioners are experts in NEPA, they are not necessarily experts in Section 106 and cultural resources management—just as Section 106 experts are not necessarily experts in NEPA. The successful integration of Section 106 with the NEPA process requires the active collaboration of the CRM team, Section 106 experts, and NEPA experts throughout the NEPA process.

Q: Is Section 106 compliance required even though we’re doing NEPA?

A: Yes – and the opposite is true, too. The National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA) are separate laws, with separate regulations and compliance procedures. Compliance procedures for these laws overlap at certain points, but one law never supersedes the other. There are ways to coordinate the NEPA and Section 106 compliance procedures in development of an environmental assessment (EA) or environmental impact statement (EIS), but regulatory requirements under 36 CFR 800 must still be addressed. You should remember that an undertaking cannot be implemented until both NEPA and Section 106 compliance are complete.

Q: If I have a “categorical exclusion” under NEPA or have completed an EA or EIS, do I still have to comply with Section 106?

A: Yes, you still have to comply with Section 106. The term “categorical exclusion” (also known as a “cat ex”) is specific to the compliance procedures for the National Environmental Policy Act (NEPA). Whether or not an undertaking is covered by a “cat ex” or has had an environmental assessment (EA) or an environmental impact statement (EIS) will likely be irrelevant to the Section 106 compliance process because compliance with NEPA and Section 106 are separate processes. Remember, however, if certain procedures are followed then aspects of the NEPA and Section 106 compliance processes can be combined to simplify the process. For more information you can consult NEPA and NHPA: A Handbook for Integrating NEPA and Section 106.

Troubleshooting

Q: What should I do if the state historic preservation officer (SHPO) does not respond within 30 days?

A: You are allowed to proceed with making your decisions regarding the proposed undertaking even if the SHPO has not responded within 30 days of its receipt of your Section 106 consultation letter and documentation. However, as a matter of courtesy, and in the interest of maintaining good working relationships, the park should, in most cases, contact the SHPO to ensure that communications have not been lost in transit or misplaced. Sometimes a SHPO may give verbal agreement as a means of expediting compliance, but this must always be followed up with written concurrence.

Q: If Section 106 compliance for a project was completed in the past, but there was a delay of several years in starting the project, does the compliance process have to be revisited?

A: The compliance process is generally based on a particular set of circumstances or conditions that may or may not change over time. The compliance process should be revisited to the extent necessary to determine if any of those circumstances or conditions have changed and, if so, to what degree. If those circumstances or conditions have changed, then Section 106 compliance may need to be revisited. The same is true as a project is implemented: if conditions change, additional consultation with the SHPO and other consulting parties may be necessary.

Q: If my park accidentally damages a historic property, what should I do?

A: Immediate consultation with the regional 106 coordinator would be helpful in determining the best course of action. In general, the state historic preservation office (SHPO), tribal historic preservation officer (THPO) or other tribal consulting parties, and the Advisory Council on Historic Preservation (ACHP) (as appropriate) should all be consulted to acknowledge the accidental damage. Explain how and why the damage occurred and consult with them to determine what, if any, corrective actions are possible. Generally the issues are resolved with the SHPO and/or THPO, but the ACHP can investigate to determine if the action was accidental or simply negligent of compliance, and can issue a finding that the NPS has prevented meaningful review of the project (known as “foreclosure”). ”Foreclosure” means that, in the ACHP’s opinion, the NPS has failed to comply with Section 106 and therefore has not met the requirements of the NHPA.

Q: What is foreclosure in relation to Section 106 compliance?

A: Foreclosure means that an action has been taken that prevents the Advisory Council on Historic Preservation (ACHP) from providing comments that can be considered in a meaningful way prior to approval of an undertaking. Foreclosure essentially means that the Federal agency is out of compliance with Section 106. Should the ACHP reach a finding of foreclosure, it will notify the head of the Federal agency of this finding and make the finding public. Federal agencies that are found to be in foreclosure may be sued in Federal court through the Administrative Procedures Act. Completing a project without compliance is the most egregious example of foreclosing the ACHP’s opportunity to comment.

Q: If we have completed a project before realizing that compliance had not been completed, what should we do?

A: You should consult immediately with the regional 106 coordinator and/or the national 106 compliance program manager at WASO to help in determining the best course of action. In general, the state historic preservation officer (SHPO), tribal historic preservation officer (THPO), Indian tribes, Native Hawaiian organizations, other consulting parties, and the Advisory Council on Historic Preservation (ACHP) should be consulted to acknowledge the oversight. During consultation, you will need to explain how and why the oversight occurred, and determine what, if any, corrective measures are possible. In most cases, issues are resolved during consultation with the appropriate SHPO and/or THPO, but the ACHP can issue a finding of foreclosure, meaning that the NPS has prevented meaningful review of the project. This means that, in the ACHP’s opinion, the NPS has failed to comply with Section 106 and therefore has not met the requirements of Federal law.

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