Does issuance of an ARPA permit constitute an undertaking requiring Section 106 review?
Section 4(i) of the Archeological Resources Protection Act of 1979 [16 U.S.C. 470cc(i)] states:
“Issuance of a permit in accordance with this section and applicable regulations shall not require compliance with section 106 of the National Historic Preservation Act, as amended [16 U.S.C. 470f].”
Thus, federal agency issuance of an ARPA permit for archaeological investigations on public or Indian lands does not, by itself, trigger review under Section 106 of the NHPA.
However, the uniform regulations implementing ARPA [43 CFR § 7.12] state that “mere issuance of such a permit does not excuse the Federal land manager from compliance with section 106 where otherwise required.” This means that if an ARPA permit is issued for archaeological investigations done in conjunction with an undertaking subject to Section 106 review, the federal land manager will still need to comply with Section 106 for the undertaking.
An example would be a federal undertaking on public or tribal lands, such as the building of a road or permitting of an energy development project that has the potential to affect historic properties. In these examples, the issuance of an ARPA permit for archaeological investigations designed to identify, evaluate, and mitigate eligible archaeological sites does not trigger Section 106 review. However, the overall undertaking for which these investigations are being carried out (i.e., the building of the road or the energy development project) is subject to Section 106 review. (added 2/5/08)