Key
Questions
1.
Is your project an "undertaking" subject to Section 106
review? [800.2(a), 800.16(y)]
- If
no, then you have completed the process. Document the file.
- If
yes, then proceed to the next question.
2.
Does your project have the "potential to cause effects"
to historic properties? [800.2(a)(1)]
- If
no, then you have completed the process. Document the file. A
"no" response likely means that the project falls under
"exempt activities" per 50.19, 58.34 or "categorical
exclusions not subject to" related laws per 58.35(b).
- If
yes, then proceed to the next question.
3.
Is your project subject to an existing Programmatic Agreement (PA)?
[800.3(a)(2)]
- If
yes, notify SHPO/THPO that you will complete the process by complying
with the terms of that PA.
- If
no, then comply with the Section 106 review process explained
in 800.3-800.6.
4.
What is "consultation"?
Consultation means the process seeking, discussing, and considering
the views of other participants, and, where feasible, seeking agreement
with them regarding matters arising in the Section 106 process [800.16(f)].
Additional information on consultation is available at 63 FR 20504
(April 24, 1998)."
5. Section
106 Definitions
Historic
Properties
Question:
When must the environmental review for a HUD-assisted project include
an evaluation of the impacts to historic properties?
Answer:
If HUD assistance is proposed for property repair, rehabilitation
of an existing structure, conversion of use, demolition, new construction,
or the acquisition of undeveloped land, then the environmental review
(24
CFR 58.5(a) or 24
CFR 50.4 (a)) requires evidence of consultation with the State
Historic Preservation Officer (SHPO), the Tribal Historic Preservation
Officer (THPO), and in some cases the Advisory Council on Historic
Preservation (ACHP). Following the Secretary of the Interior's Standards
and Guidelines for Evaluation, and in consultation with the relevant
SHPO(s)/THPO(s), determinations must be made and documented in the
environmental review as to whether the property is:
(a) listed on or eligible for listing on the National
Register of Historic Places; or
(b) located within or directly adjacent to a National Register eligible
or listed historic district; or
(c) a property whose area of potential effects includes a National
Register eligible or listed historic district or property; and
(d) for properties found to be on or eligible for listing on the
National Register, further determinations are required concerning
the effect of the undertaking on the property (36
CFR Part 800.4(d)(2) and 800.5.)
Question:
What regulations are to be followed for historic preservation processing?
Answer:
Historic properties and districts are subject by law to special
protection and historic preservation processing, which must be performed
to comply with the regulations of the Advisory Council on Historic
Preservation (36 CFR Part 800). For properties determined to be
historic properties, (or properties whose area of potential effects
includes a historic district or property) even if the SHPO/THPO
concludes that no adverse effect will occur as a result of the assisted
project, 30 to 90 days may be required to obtain this information
and in most cases to perform the processing required by 36 CFR 800.
These regulations implement the National Historic Preservation Act
of 1966 (NHPA) as amended, (16
U.S.C. 470 et seq.) and related authorities. The goal of this
regulatory process is to avoid, minimize, or mitigate adverse effects
on historic properties.
Question:
What types of written findings or responses from the SHPO/THPO and/
or ACHP are included in the environmental review record for the
assisted project?
Answer:
- There
are four results of the historic property identification and evaluation
process to which the SHPO/THPO will respond in writing:
- There are no historic properties present;
- There are historic properties present but the undertaking
will have no effect upon them;
- There are historic properties present that may be affected
by the undertaking and the undertaking will have No Adverse
Effect on those properties; or
- There are historic properties present and the undertaking
will have an Adverse Effect on those properties.
-
If concurrence is not reached with the SHPO/THPO on (i)-(iii)
above, or if the SHPO/THPO or ACHP objects within 30 days to the
finding of (i)-(iii), then consultation must continue on the adverse
effects of the undertaking. There are two results of the adverse
effects assessment process to which the SHPO/THPO and/or ACHP
will respond: No adverse effect; or Adverse effect. The process
is concluded if concurrence is reached on (i)-(iii).
-
If an Adverse Effect is determined to exist, the ACHP must be
notified, continuing consultations with the SHPO/THPO, other consulting
parties and, in some cases the ACHP are necessary in accordance
with 36 CFR Part 800.6. Such consultations will result in either
a change in the undertaking to create No Adverse Effect, a Memorandum
of Agreement (MOA) or Programmatic Agreement (PA), for dealing
with the adverse effect, or a breaking off of consultations (36
CFR Part 800.7.)
Information Sources for Historic Properties
Question:
Where is information available on historic properties?
Answer:
Information
on historic properties within your State or Tribe is available from
the State
Historic Preservation Officer (SHPO) or Tribal
Historic Preservation Officer (THPO) and the local historical
society.
The
National
Park Service, Department of Interior, holds information on every
property listed in the National
Register of Historic Places. It may also have information on
many properties that have been determined eligible and that have
been nominated for (not yet listed in) the National Register. For
the National Register regulations, see: 36 CFR Part 60.
For
regulations of the Advisory Council on Historic Preservation, see
36 CFR Part 800.
See
the Secretary of the Interior's Standards
and Guidelines for Evaluation.
EZ/EC
and Historic Properties
Question:
Does Section 106 for historic preservation processing apply to the
Empowerment Zone/Enterprise Communities (EZ/EC) program?
Answer:
Compliance with environmental review procedures including historic
preservation processing is required for EZ grants proposed for property
acquisition, repairs and rehabilitation of an existing structure,
conversion of land use, demolition, and new construction. Environmental
review procedures do not apply to the tax incentive aspects of the
EZ/EC program. HUD policy is at Notice
CPD-99-07 (issued September 20, 1999).
Emergency Demolition of Public Housing
Structures and Section 106 Applicability
Question:
What Section 106 procedural and documentation requirements apply
to emergency undertakings?
Answer:
Section
110(k) of the NHPA as amended (16
U.S.C. 470 et seq.) states that no federal agency shall give
assistance to an applicant who intends to intentionally create an
adverse effect on historic properties. This is to prevent federal
agencies from rewarding applicants for neglecting and/or mismanaging
historic properties and thus undermining the goals of the NHPA.
However, under the Section 106 regulations (see 36 CFR 800.12),
"Emergency Situations"), there are specific times when
emergency undertakings may occur with federal assistance. First,
§800.12 applies only to undertakings that will be implemented
within 30 days after a disaster or emergency has been formally declared
by the appropriate authority (President, Tribal government, Governor,
local government's chief executive officer or legislative body).
Second, the types of emergency undertakings intended to be covered
under §800.12 include, but are not limited to, immediate and
essential responses to storms, floods, acts of war or terrorism,
and other threats to life and property. Sec. 800.12 is not intended
to cover cases of property-owner neglect or mismanagement.
When
the agency official determines that §800.12 applies, the following
procedural and documentation requirements apply:
Notify
the SHPO/THPO, ACHP, and other consulting parties of the properties
to be affected prior to the undertaking and allow them an opportunity
to comment within 7 days. Notification can be by telephone, fax,
e-mail, or letter. Comments may be submitted likewise.
If
the agency official determines that circumstances do not permit
7 days for comment, the agency official must notify the SHPO/THPO,
ACHP, and other consulting parties and invite any comments within
the time available. Again, notification can be by telephone, fax,
e-mail, or letter. Comments may be submitted likewise.
When
a local government official serves as the agency official (for purposes
of Section 106 compliance), the same procedural and documentation
requirements as noted above apply. However, if the ACHP or SHPO/THPO
objects to the proposed emergency undertaking within 7 days, the
local government shall comply with §800.3 through 800.6.
If
§800.12 does not apply to a proposed "emergency"
undertaking, then the agency official must comply with §800.3
through 800.6.
Sec.
800.12 encourages agencies to develop procedures, Programmatic Agreements,
and other agency alternatives to streamline the Section 106 compliance
process for emergency undertakings.
SHPO/THPO Response within 30 Days
Question:
Is the failure of the SHPO/THPO to respond within the 30-day period
considered agreement of the SHPO/THPO with the finding required
at 36 CFR 800.5(c)(1) and fulfillment of the SHPO/THPO 106 review
responsibilities?
Answer:
From 36 CFR Part 800.3(a)(4) and 800.5(c)(1), it is clear that if
the SHPO/THPO fails to respond within 30 days from receipt of the
finding, it shall be considered agreement of the SHPO/THPO with
the finding. It is prudent to have proper documentation that proves
the dates on which the SHPO/THPO received/logged the information
(i.e., a USPS return receipt).
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