HUD Memo

HUD Memorandum Updated February 2005

The above-linked document is the 16-page memo that we send out in response to funding notices we receive.  It contains all of the instructions and guidance for sending HUD-funded projects to the SHPO for review.  I’m pretty sure that most recipients have never gotten past the third page.  It’s a classic government document, full of government-ese, and guaranteed to put the most dedicated funding recipient to sleep.  That’s the world we live in, gotta keep the lawyers happy.

For years, I’ve been meaning to write a plain-English version that people might actually read.  It’s below:

Plain English Explanation for the HUD Memo

Rather than pasting sections of the Memo here and explaining them, I’m offering just the explanation.  If it makes it easier, keep the actual Memo open in a separate window and refer back to it.

February 2005 – No, the Memo isn’t out of date. That’s just the last time we updated it.  Since not much changes, we only update it every few years.

Although Kathleen Schmidt approved the updated Memo in 2005, she’s located in the Milwaukee HUD office.  The Detroit office has a new Field Environmental Officer, Carmen Reveron. You should contact her if you have any questions.

Helpful websites:

Advisory Council on Historic Preservation
Michigan State Historic Preservation Office
National Park Service
National Register of Historic Places
National Preservation Institute
National Trust for Historic Preservation
HUD Environmental Web Page

Definitions

Area of Potential Effects (APE): The APE is a geographic area where your project could potentially have an effect on historic resources.  The APE does not have to be determined for the housing rehab projects that use the small rehab cards and response sheets, but for any project that requires the use of our longer form, you must determine what your APE is.  Some people will determine if there are any historic properties near their project and then determine their APE accordingly. This is not the way it should be done.

A lot of people have a hard time figuring out what their APE should be when doing a project. If you run really stuck and just can’t decide what your APE should be, give me a call and we’ll discuss your project. 

However, I have a few tips.  If you are doing a facade rehab in an historic downtown, you might be tempted to think that only the building you are working on will be affected by your project.  However, that building will also have an indirect effect on its neighbors.  Think of it this way: if the building were abandoned and neglected, it would have a very negative effect on its neighbors, wouldn’t it? And it would extend to more than just the adjacent neighbors.  In an opposite way, you are hoping that a building that is rehabbed will have a positive effect on the downtown.  How far does that extend?  I would venture that at a minimum, the improvements to the building could have an effect on the entire block.

If you are doing a sewer project, your project will likely impact more than just the trench where you are laying the pipes.  An APE is very rarely just the physical footprint of the project.  If you extend the sewer to an existing portion of your town / village / township / subdivision / etc., you could assume that it might have an effect on the homes that are going to be newly connected to the sewer.  If you are extending sewer lines to an area that hasn’t already been built up, you might assume that the new sewer will encourage new construction in that area.  Where do you anticipate that new construction? That should be included in your APE.

Once you have determined what your APE is, only then should you try to determine if there are historic properties in your APE.

Historic property: A historic property is defined as any prehistoric or historic district, site, building, structure, or object that is listed on or eligible to be listed on the National Register of Historic Places.  When determining if anything in your APE is historic, you should apply the National Register criteria.

National Register of Historic Places:  You can find out all you want and more about the National Register at the National Park Service web site.

Effect: An effect is an alteration to the characteristics of the property that would qualify it for inclusion in the National Register.  These characteristics relate to the design, materials, workmanship, location, setting, feeling, and association.  An example of setting: if you have a road widening project and are removing all of the mature trees from an historic neighborhood, the lost of the tree canopy along the street would affect the setting of the historic neighborhood.

Adverse effect: Just as it sounds, an adverse effect is something that will negatively affect the characteristics mentioned above in the definition of “effect.”  Adverse effects include, but are not limited to: demolition, alteration, removal of a property from its original setting, neglect, abandonment, or the introduction of visual, atmospheric, or audible elements.

THE ROLE OF THE FEDERAL AGENCY:
UNDERSTANDING YOUR RESPONSIBILITY UNDER FEDERAL LAW

If you’re reading this, it’s very likely someone has asked you to contact the SHPO for a comment on your project.  The reason you have to consult with the SHPO on your project is that your project is receiving federal funding or a federal license or permit. If there is no federal involvement in your project, you don’t need to consult with us.

However, before you start protesting that you don’t have federal involvement in your project, and that someone else required you to contact the SHPO, and thinking maybe you don’t need to consult with us, you might want to check with the person who told you to contact us.  In many cases, federal funding or licensing is passed from the federal agency to a state or local agency.  For example, if MSHDA or MEDC asked you to contact us, it is because the funding they are providing for your project originated with the federal government, almost always with the US Department of Housing and Urban Development (HUD).  If MDEQ asked you to contact us, there is probably an EPA permit involved.  If you aren’t sure about the federal connection, contact the person who told you to send information to us; do not contact us to find out what your federal connection is.

HUD, under the Housing and Community Development Act [42 USC 5301], passed its responsibility for complying with federal laws off to its funding recipients. Thus, if you are getting funds from HUD (even indirectly, through MSHDA or MEDC) and in any of the following you see a reference to the “federal agency, or its federally-delegated authority” being responsible for something, that’s likely to be YOU, not HUD.  By accepting the funding, you accept the responsibility, both financially and legally, for complying with federal laws on behalf of HUD.   

The purpose of the HUD Memo we send out in response to funding notices is to make sure YOU know what YOUR responsibilities are under Section 106 of the National Historic Preservation Act (NHPA) of 1966, as amended.

YOU/HUD are responsible for:

1. Determining if your project is what the law calls an “undertaking.”  In other words, you need to know if your project requires you to have it reviewed by the SHPO.  Generally, if the person providing you with the funds tells you that you have to contact us and get a response from our office before they will release your funding, your project is an undertaking.
2. Determining the project’s Area of Potential Effects.  Most people think that determining the APE isn’t important and if they skip that step, no one will really know.  Not true.  Determining the APE is an important part of the Section 106 process.  If you don’t know what your APE is, it could take longer for us to review your project (and thus for you to have your funding released), because we will probably need to send the project back to you and ask you to determine your APE.  If you say your APE is limited to just the physical location of the work being done, but can’t justify why that’s your APE (other than that was easier than trying to think it through), then we are also likely to send your project back for you to re-evaluate your APE. (see the definition of Area of Potential Effects, above, if you haven’t already read that section)
3. Identifying historic properties within the project’s APE, if such properties exist. Once you’ve determined what your APE is, find out if there are any properties that are eligible for or listed on the National Register.
4. Assessing the effect(s) that the project may have on any historic properties in the APE. (see the definitions for “effect” and “adverse effect” above, if you haven’t already read that section.

Project Planning and Section 106

Section 106 is intended to be a planning tool. It is important that you consult with the SHPO early enough in your project so that if there will be an adverse effect on historic properties, you can adjust your project accordingly, either by avoiding the adverse effect, or by mitigating the adverse effect.  It is far easier to avoid an adverse effect if you find out about it early in your project. If you wait until the project planning is completed and then do your environmentals and find out that your project will have an adverse effect on a property, your project could experience significant delays.

Compliance with Section 106 and the National Environmental Policy Act (NEPA)

Section 106 and NEPA are notthe same – they are two separate laws.  In most cases, the information that would satisfy a NEPA review will not suffice for a Section 106 review.  Your best course of action will likely be to satisfy your Section 106 responsibilities firstand then address historic properties in your NEPA compliance, based on your consultation with the SHPO.

Projects that are “categorically excluded” under NEPA are not always exempt from Section 106 review.  If a project qualifies as an undertaking according to the Section 106 regulations, then it will have to be reviewed by our office, even if it is considered “categorically excluded” under NEPA.

Involving Consulting Parties in the Section 106 Review Process

Section 106 regulations require you to actively consult with specific individuals and organizations about your project for the Section 106 process.  Consulting parties are defined as “individuals and organizations with a demonstrated interest in the project due to the nature of their legal and economic relation to the undertaking or affected properties, o r their concern with the undertaking’s effect on historic properties.”  Consultation is particularly important in controversial projects.  

Involving the Public in the Section 106 Review Process

It is a requirement that the federal agency or their federally-delegated authority (you) consider public opinion regarding your project and the project’s effects on historic properties.  You should decide early in the planning process how you will get public input on your project.  Public input is generally proportional to the scale of the project and the possibility that it will have an effect on an historic property.  If your project will have an adverse effect on an historic property, we will ask for a record of public comment on your project.

 When gathering public opinion, it is important that you gather the comments and then submit them to us, rather than having the public submit their comments directly to us.  When our office receives public comment, but the entity responsible for the project (you) don’t, it can be a very inefficient process and creates far more work for both you and us.  We’re already working with less staff than we’d like, and we suspect you are, too. Let’s not create extra work for both of us. Besides, the law assigns responsibility for the public comment to you, not us.  Really, the only time it would be appropriate for the public to contact our office directly is if their efforts to contact you are unsuccessful.

A Proactive Approach to Section 106 Consultation

We encourage you to take a proactive approach to identifying and evaluating the historic resources in your community.  Time spent identifying your local historic resources can save you a lot of time when you are completing the Section 106 process for future projects.

The most effective way to identify local historic resources is to conduct a “windshield” survey of your community.  A windshield survey provides very basic information and usually involves photographing areas that are likely to contain historic properties and evaluating their significance with a historic preservation professional.  The SHPO has a list of such professionals, if you are interested.  They will conduct research form local resources to develop a general history of the area.  Once the survey is completed, communities consult with the SHPO to finalize the survey and a copy is retained by the SHPO to expedite future Section 106 reviews.  These surveys should be updated periodically, as new resources are identified.

Conducting a survey can identify National Register eligible properties and define the boundaries of historic districts.  If your community has adequate survey information, it is also possible to identify areas that will not have the potential to become historic and these areas may be eventually excluded from Section 106 review, if the SHPO agrees. That could streamline your environmental process, especially if you do a significant number of housing rehabilitation projects.

Reconnaissance-level surveys provide innumerable benefits and can be cost effective.  Consider enlisting volunteers, students, retirees, etc. to take photographs and conduct research ad compile the data.  Several communities could get together and pool their resources to hire an historic preservation professional to conduct the survey.  You might even be eligible to receive HUD funding for the project.

Several communities in Michigan have streamlined their Section 106 review process by entering into a Programmatic Agreement (PA) with the SHPO.  Under that agreement, the community can identify historic properties and evaluate effects to them without the SHPOsinvolvement; however, these communites have qualified historic preservation personnel on their staffs. If you are interested discussing a PA, or in streamlining the process through a local survey, contact me.

THE ROLE OF THE SHPO

State Historic Preservation Offices were created by the  National Historic Preservation Act of 1966, as amended, and exist in US states and territories. In Michigan, the SHPO is part of the Michigan Historical Center, Department of History, Arts and Libraries. The SHPO identifies, evaluates, registers, interprets, and protects the state’s historic properties.

In the Section 106 process, the SHPO is a mandatory consulting party.  We are not mandated by the law to conduct the research, to identify historic properties, or to determine project effects on behalf of the federal agency – that’s what the federal agency (or you!) is mandated to do.  We are required to respond to requests to review projects that are adequately documented. We are not a regulatory agency – we do not have the authority to clear, authorize, license, or permit (or deny) your project.  Those are things the federal agency does. We just consult with them – agree or disagree – on the effects of their projects.

Common misunderstandings we’d like to clear up:

• The SHPO does not have a complete list or database of all historic properties in the state.  We do maintain a listof properties that are listed on the State and National Registers. However, this list does not include properties that are eligible for listing on the National Register, and Section 106 requires you to consider those eligible properties when determining the effects of your project.  We wish we had information on every eligible property in the state; that would make our jobs – and yours – much easier.  Unfortunately, funding and time limitations prevent that.  Identifying historic properties within an Area of Potential Effects is the duty of the federal agency (or you), not the SHPO. We do not conduct research or identify historic properties with in a project’s APE on behalf of an agency.
• The SHPO is responsible for other programs in addition to Section 106 review activities. Every year, we review approximately 5000 projects of varying degrees of complexity. Our office is also responsible for implementing the National Register of Historic Places and the Historical Marker program, state and federal tax incentives programs, Michigan’s Certified Local Government (CLG) program, several grant programs, the Michigan Lighthouse Program, providing design work for the Michigan Main Street Program, and overseeing Michgan’s Historic Resources Survey Program. 
• The SHPO cannot conduct site visits.  We generally cannot accommodate requests for site visits concerning Section 106 projects.  We’re limited both in our staffing and our funding. This is why it is important that your project is adequately documented when you submit it for our review.  You may know what the project area looks like, but we don’t, and we rely heavily on the photographs, maps, and narratives you submit with your project.

GUIDELINES FOR HUD PROGRAM CONSULTATION WITH THE SHPO

The information described in these guidelines are the minimum requirements for a Section 106 review.  If you have a project that does not seem to be covered in these guidelines, please contact HUD or the SHPOto determine if your project requires consultation with the SHPO.

How to submit your project and when to expect a response

Specific information for submitting your project (which forms to use, what information to provide) is covered in these guidelines.   Projects that are not submitted in the correct format will be returned for revision and resubmission, or we may request more information.  That will slow down your project, since we’ll need to wait to hear back from you.  For your own sake, make sure your project is adequately documented.

The SHPO has thirty (30) calendar days from when we receive your project in our office to provide a response.  We cannot guarantee a 30-day response if you submit your project without adequate documentation, or if you do not demostrate a reasonable, good-faith effort to identify historic properties within your project’s Area of Potential Effects and/or to correctly assess the effect of your project on those properties.

What is an adequately-documented finding? This is outlined in the Section 106 regulations.  Your finding must be supported by sufficient documentation to enable any of the reviewing parties to understand the basis for your decision.  In practical terms, if you submit a housing rehab without a map, or don’t complete the “existing exterior materials” section of the rehab card, I as the reviewer won’t have enough information to review your project.  Likewise, if you are filling out the longer form and don’t provide our office with photographs or maps, or if you don’t have a project description that would allow us to properly evaluate the work being done and it’s potential effects on historic properties, those would be inadequately documented projects.  The more information we have about the project, the quicker the review process is likely to go.  Every time we have to ask for more information, the 30-day clock starts again when we receive the information.

What is a reasonable and good-faith effort?This is outlined in the regulations [36 CFR Part 800.4(b)(1)].  It may include background research, consultation, oral history interviews, sample field investigation, and field survey.  You should take into account past planning, research and studies, the size and nature of the project, and the likely nature and location of historic properties within the projects Area of Effects.

What is a finding of effect? This is the final step in the process.  You’ve determined your APE, done some research to determine whether there are historic properties in your APE, considered whether your project is likely to affect those properties (if any), if it will affect them, now you consider what those effects will be.  You have three choices when it comes to a finding of effect (note: you should NOT check all three boxes in this section of the long form!!).

1. No historic properties affected. This determination applies if 1) there are no historic properties in your APE, or 2) there are historic properties in the APE but the project will have no effect on them
2. No adverse effect.  This applies if there are historic properties in the APE that will be affected, but the effect will not meet the criteria of adverse effect (see the definition section for “adverse effect”)
3. Adverse effect. This means that there are historic properties in the APE and the effect that your project will have meets the criteria for an adverse effect (again, see the definition section above for “adverse effect”)

Who can submit projects to the SHPO?

Projects may be submitted by consultants, non-profit housing corporations, housing coalitions, or local units of government.  The SHPO must respond to the federally-delegated authority.  If you are a consultant submitting a project, you should also provide us with a contact information for the funding recipient.  Although the SHPO can contact a consultant to get more information about a project, we will need to address our response to the project to the federally-designated authority.

On our longer form, contact information for both the consultant (if you are using one) and the federally-delegated authority should be included in Section 1.f.  Both mailing addresses and contact names should be included. We can’t address our letters “To Whom It May Concern” and the secretary can’t send the letters out unless we get a mailing address.  This sounds obvious, but you might be amazed at how often this information is left out of submissions.  It slows down the process if we need to contact a consultant for this information. Again, the 30-day clock will start again when we receive that information.  If the consultant information is included, we will copy the consultant on our response. Likewise, if you’d like HUD or MSHDA/MEDC to receive a copy of our letters, their contact information should be included in Section 1.d or Section 1.e.

The Response Sheets that are submitted with the rehab Inventory Cards are returned in envelopes using the return address you provided in a window.  Please make sure that your complete address is legible. Please also include a contact name with the address. If we have any questions and need to sned a letter regarding the project, we much prefer to address it to a specific person than “To Whom It May Concern.”  We cannot respond to projects if a return address is not included.

Occasionally, a non-profit or local unit of government will require the homeowner receiving the funds to contact our office. This is neverappropriate.  According to the law under which we review projects, the federal agency is responsible for consultation with our office. HUD has legally passed its responsiblity off to their federally-designated authorities.  This is NEVER the homeowner.  We will not review requests submitted by homeowners.

Where to go for information about historic properties

Our longer form requires you to gather information about historic properties in the project’s APE.  We understand that most of the times the form is filled out by someone with no background in researching historic properties.  That’s why we provide a list of places to check for information.  The law requires that you make a “reasonable and good faith” effort to identify historic properties.  While you don’t need to consult each and every resource that we suggested, making no effort to identify properties would not be considered a “good faith effort.”

The Michigan County Histories and Atlases Digitization Projectmakes many county histories and older atlases available online.  As more resources become digitized and available online, we’ll provide links ob our Property Histories page.

Emergency situations

Section 106 regulations are very specific regarding emergencies.  If you have a building that has been deteriorating for a number of years and you are planning to use HUD funds to demolish that building, for the purposes of Section 106, this would not be considered an emergency that would allow you to either skip the Section 106 process altogether not follow the standard Section 106 review process.

SUBMITTING ALL OTHER PROJECTS

If your project is a housing rehabilitation or a housing demolition project, it should be submitted on the housing rehab inventory cards with the historic significance response sheets.  All other projects that need to be submitted for our review should be submitted on our longer form. 

Types of projects that we need to review include, but are not limited to the following:

• Streetscape improvement projects
• Infrastructure projects
• New build / infill projects
• Construction of public housing units
• Commercial rehabilitation or development projects
• Construction of new government facilities

To determine if we need to review your project, either consult the person providing your funding or check the list below.

You are required to complete the Section 106 process for construction-related projects if:

• Any properties to be affected by the project are fifty years of age or older (unless the work to be done is exempt according to the list below)
• Any properties to be affected by the project are included in, or eligible for inclusion in, the State Register of Historic Sites or the National Register of Historic Places
•  The project’s APE includes any properties that are included in, or eligible for inclusion in, the State Register of Historic Sites or the National Register of Historic Places
• Any properties to be affected by the project have historic significance (for example, the factory building in which there was a significant invention, the site of an important workers’ strike, the home of an important local historical figure, etc.)
• The project, or  buildings in the project’s APE are located in a locally-designated historic district, a historic district included in – or eligible for inclusion in – the State Register of Historic Sites, and/or a historic district included in – or eligible for inclusion in - the National Register of Historic Places
• Any properties 50 years or older will be altered, removed, abandoned, or demolished to accommodate the project
• The project is in an established neighborhood fifty years of age or older where trees, sidewalks, or other streetscape features may be added, altered, removed, or demolished to accommodate the project

The HUD memo neglects to mention that we also need to review projects that have ground-disturbing components (perhaps it is time to update the memo?). 

Why on earth would we need to review ground-disturbing projects and what does that have to do with old buildings?  Archaeology.  The National Historic Preservation Act of 1966, as amended, addresses both above-ground and below-ground historic resources.  The Office of the State Archaeologist works with the SHPO to review projects for possible effects on below-ground historic resources.

One thing to keep in mind with the above list is that the regulations require consideration of resources that are eligible for the National Register, not just resources that have already been listed.  Most of the historic resources in Michigan have not been formally nominated to the National Register.  Also, when we are considering housing rehab projects, very few of those houses are listed or eligible for listing as individual resources; the vast majority of houses that are “historic” are part of an historic district.  So, although you might check the National Register listings and not find your specific address, that doesn’t necessarily mean that it’s not historic.

HUD PROJECT TYPES NOT REQUIRING CONSULTATION WITH THE SHPO

These types of projects (see the chart on page 15 and 16 of the HUD Memo) have little or no potential to cause effects on historic properties.  If all of the work to be done on your project falls into the categories listed in the chart, please do not send the project in for us to review!  Really.  We have more than enough work to do here, and I’m sure you have plenty of other things to keep you busy.  Just document for your file that all the work to be done falls into the categories listed on the chart.  We don’t need to see the project. 

Sometimes the response sheets will be returned noting that the resource is historic and our office will need to review the specifications.  Occasionally when this happens, the project funder will decide to only fund work items that are on the chart and don’t require us to review the specifications.  If you do this, please drop me a note so I can close the file on your project.  Open projects are stored in my cubicle rather than the regular file cabinets and threaten to overwhelm my workspace.  If you have any questions about your project and whether or not the work is exempt from our review, just call me.