What is Section 106?

36 CFR § 800.1(a)
“Section 106 of the National Historic Preservation Act requires Federal agencies to take into account the effects of their undertakings on historic properties . . . The goal of consultation is to identify historic properties potentially affected by the undertaking, assess its effects and seek ways to avoid, minimize or mitigate any adverse effects on historic properties.”

What is an undertaking?

36 CFR §  800.16(y)
An undertaking is, “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 a Federal agency; those carried out with Federal financial assistance; those requiring a Federal permit, license or approval; and those subject to state or local regulation administered pursuant to a delegation or approval by a Federal agency.”

When must a Section 106 review take place?

36 CFR § 800.1(c)
The section 106 process must be completed, “’prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license.’. . . The Agency Official shall ensure that the section 106 process is initiated early in the undertaking’s planning, so that a broad range of alternatives may be considered during the planning process for the undertaking.”

Why doesn’t the SHPO do the Section 106 review? 

36 CFR § 800.2(a)
“It is the statutory obligation of the Federal agency to fulfill the requirements of section 106.”

36 CFR § 800.4(b)(1)
Federal agencies, or federally-delegated authorities must, “ make a reasonable and good faith effort to carry out appropriate identification efforts, which may include background research, consultation, oral history interviews, sample field investigation, and field survey.

36 CFR § 800.2(c)(1)
The SHPO is a consulting party in the Section 106 review process.  The SHPO, “advises and assists Federal agencies in carrying out their section 106 responsibilities.”  The SHPO is not the authority, and the SHPO is not a regulatory agency.  The SHPO opinion, however, can trigger certain actions.

What is a federally-delegated authority?

36 CFR § 800.2(a)
“The Agency Official may be a State, local, or tribal government official who has been delegated legal responsibility for compliance with section 106 in accordance with Federal law.”

What is the role of a consultant?

36 CFR § 800.2(a)(3)
Consultants or designees contracted to prepare information are not recognized as federally-delegated authorities.  Federal agencies, or federally-delegated authorities, “may use the services of applicants, consultants, or designees to prepare information, analyses and recommendations under this part.”  The federal agency, or federally-delegated authority, “remains legally responsible for all required findings and determinations.”

Why doesn’t the information submitted for a NEPA review suffice for a Section 106 review?

36 CFR § 800.3(b)

Federal agencies, or federally-delegated authorities may choose to,” coordinate the steps of the section 106 process, as appropriate, with the overall planning schedule for the undertaking and with any reviews required under other authorities such as the National Environmental Policy Act.”

“Where consistent with the procedures in this subpart, the Agency Official may use information developed for other reviews under Federal, State or tribal law to meet the requirements of section 106.”  In many instances, however, the information submitted to complete a NEPA review, will not suffice for a Section 106 review.  Section 106 is a component of a NEPA review.  In a sense, Section 106 and NEPA are two distinct reviews, requiring different information.  Section 106 deals with the historic built environment, and the appropriates steps must be taken to identify historic properties and impact the undertaking will have on these properties.

What is the area of potential effects (APE)?

36 CFR § 800.16(d)
The area of potential effects is the, “geographic area or areas within which an undertaking may directly or indirectly cause changes in the character or use of historic properties, if any such properties exist. The area of potential effects is influenced by the scale and nature of an undertaking and may be different for different kinds of effects caused by the undertaking.”  In many instances, the APE is not simply the project’s physical boundaries, or right-of-way.

What is a historic property?

36 CFR § 800.16(l)
A historic property is, “any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register of Historic Places.”

What makes a property “historic”?

36 CFR § 800.4(c)(1)

Federal agencies, or federally-delegated authorities, “shall apply the National Register Criteria to properties identified within the area of potential effects.”

The National Register criteria are: a)  association with events, activities, or broad patterns of history; b)  association with persons significant in the past; c)  characteristic of a type, period, or method of construction; has high artistic value; or d)  potential to yield information.  In addition to meeting at least one of the criteria, a property must be at least 50 years of age, and retain it’s integrity.

What is the National Register of Historic Places?

36 CFR § 800.16(l)

The National Register is the official list of properties recognized by the federal government as worthy of preservation.  It is honorary and does not, by itself, afford properties any protection.  Listing does not prevent property owners from remodeling, repairing, altering, selling, or even demolishing the property, unless federal dollars are involved.  Property owners are not obligated to make any repairs or improvements to the property. The National Register of Historic Places is not a complete list of all historic properties. – it is being added to continuously.  It is possible that a historic property may never be listed in the National Register and for this reason, it is necessary to consider properties that are eligible for inclusion in the National Register in the Section 106 review process.  “The term eligible for inclusion in the National Register includes both properties formally determined as such in accordance with regulations of the Secretary of the Interior and all other properties that meet the National Register criteria.”

The SHPO reviewed a property several years ago and it was not eligible, and now the SHPO determines that it is.  How can that be?

36 CFR § 800.4(c)(1)
“The passage of time, changing perceptions of significance, or incomplete prior evaluations may require the Agency Official to reevaluate properties previously determined eligible or ineligible.”

How can one property be historic and a similar neighboring property not be historic?

Integrity.  Integrity is the authenticity of a property’s historic identity, evidenced by the survival of physical characteristics that existed during the property’s period of significance.  Severe alterations to the original appearance may reduce the integrity of a property.  It is important , however, to recognize that properties change over time and the addition of an element not original to the property does not necessarily compromise the integrity. 

What if I don’t want my property to be deemed “historic”?

36 CFR § 800.4(c)(2)
A property owner may object to listing in the National Register of Historic Places, and based on this objection the property will not be included in the National Register.  However, a failure to list does not diminish the property’s eligibility for inclusion in the National Register.  For purposes of Section 106, if a federal agency, or a federally-delegated authority, “determines any of the National Register Criteria are met and the SHPO/THPO agrees, the property shall be considered eligible for the National Register.”

What is an adverse effect?

36 CFR § 800.5(a)(1)

“An adverse effect is found when an undertaking may alter, directly or indirectly, any of the characteristics of a historic property that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property’s location, design, setting, materials, workmanship, feeling, or association.”

36 CFR § 800.5(a)(2)

“Adverse effects on historic properties include, but are not limited to:

 (i) Physical destruction of or damage to all or part of the property;  (ii) Alteration of a property, including restoration, rehabilitation, repair, maintenance, stabilization, hazardous material remediation and provision of handicapped access, that is not consistent with the Secretary’s Standards for the Treatment of Historic Properties (36 CFR part 68) and applicable guidelines;  (iii) Removal of the property from its historic location;  (iv) Change of the character of the property’s use or of physical features within the property’s setting that contribute to its historic significance;  (v) Introduction of visual, atmospheric or audible elements that diminish the integrity of the property’s significant historic features;  (vi) Neglect of a property which causes its deterioration, except where such neglect and deterioration are recognized qualities of a property of religious and cultural significance to an Indian tribe or Native Hawaiian organization; and  (vii) Transfer, lease, or sale of property out of Federal ownership or control without adequate and legally enforceable restrictions or conditions to ensure long-term preservation of the property’s historic significance.”

Where is it specified what  is required for a Section 106 review?

36 CFR § 800.11(a)
Federal agencies, or federally-delegated authorities, “shall ensure that a determination, finding, or agreement under the procedures in this subpart is supported by sufficient documentation to enable any reviewing parties to understand its basis.”

36 CFR § 800.11(d)

“Finding of no historic properties affected. Documentation shall include:

(1) A description of the undertaking, specifying the Federal involvement, and its area of potential effects, including photographs, maps, drawings, as necessary; (2) A description of the steps taken to identify historic properties, including, as appropriate, efforts to seek information pursuant to 800.4(b); and (3) The basis for determining that no historic properties are present or affected.”

36 CFR § 800.11(e)

“Finding of no adverse effect or adverse effect. Documentation shall include:

(1) A description of the undertaking, specifying the Federal involvement, and its area of potential effects, including photographs, maps, and drawings, as necessary; (2) A description of the steps taken to identify historic properties; (3) A description of the affected historic properties, including information on the characteristics that qualify them for the National Register; (4) A description of the undertaking’s effects on historic properties. (5) 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 (6) Copies or summaries of any views provided by consulting parties and the public.”

How does the SHPO make decisions?

The SHPO does not make arbitrary and capricious decisions.  Objective criteria, set forth in 36 CFR § 800, govern the Section 106 review process.