What is the National Historic Preservation Act and how does it relate to the Section 106 process?
Section 106 of the National Historic Preservation Act requires federal agencies to seek out consulting parties to request their views and participate in consultation regarding a project's effect on historic properties. The goal of the 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. Historic properties include any prehistoric or historic district, site, building, structure, or object considered eligible for listing on the National Register of Historic Places (NRHP). Section 106 requires that the Advisory Council on Historic Preservation (ACHP) have an opportunity to comment on the project. Federal regulations for implementing Section 106 are contained in 36 CFR Part 800, Protection of Historic and Cultural Properties.
What are the steps of the Section 106 process?
The Section 106 process begins with the appropriate FTA Regional Administrator establishing that the action in question (i.e., transit project) is a federal undertaking. From there, grant applicants work through the step-by-step process shown in the following flowchart.
Initiate the Section 106 Process
FTA determines whether a project has the potential to cause effects on historic properties. If FTA determines there is no undertaking or no potential to cause effects, FTA should document that finding in the administrative record, and the Section 106 process is completed.
The plan to involve the public, tribal and consulting parties can be coordinated with the NEPA process (e.g., scoping, outlined in the SAFETEA-LU Section 6002 EIS coordination plan). Where possible, the grant applicant should include plans to provide non-sensitive information on the Section 106 process on the project website.
Agencies should consider their Section 106 responsibilities as early as possible in the NEPA process, and plan their public participation, analysis, and review in such a way that they can meet the purposes and requirements of both Section 106 and NEPA in a timely and efficient manner.
Identify Historic Properties
FTA initiates the Section 106 consultation process with a letter from the Regional Administrator to the State Historic Preservation Office (SHPO) or Tribal Historic Preservation Office (THPO).
The FTA Regional Administrator reaches out to Indian tribes that may have an interest in the project. Consultation with Indian tribes will be documented throughout the Section 106 process.
Under Section 110 of the Historic Preservation Act, if a project may affect a National Historic Landmark, FTA must consult with the National Park Service.
Before identifying historic properties as eligible for the National Register of Historic Places (NRHP) (36 CFR Part 60), an area of potential effects (APE) (36 CFR Part 800.16(d)) must be defined. An APE is the geographic area that an FTA project may directly or indirectly cause changes to the character of historic properties. It is common to have different APEs for archeological and historic structures and landscapes for project Section 106 review. Together with the SHPO, FTA will identify consulting parties (36 CFR Part 800.2(c)). However, FTA may decide to include other agencies.
Although FTA relies heavily on the expertise of the grant applicant’s historic preservation consultant and consulting parties, ultimately FTA makes the determination of eligibility for the NRHP. If there is a dispute on eligibility, FTA may request an opinion from the Keeper of the Register (more formally known as the Keeper of the National Register of Historic Places) at the National Park Service rather than just accepting the SHPO or other consulting party’s opinion.
Assess Adverse Effects
For projects involving the preparation of an EA or EIS, FTA should get through the initiation, identification of historic properties (receiving concurrence from the SHPO on the APE), and preliminary determinations of effect (no concurrence from SHPO) stages before publishing the EA or draft EIS. This is to provide the public and interested agencies an opportunity to comment on the project’s effects and propose alternatives to avoid adverse effects or mitigation measures. This information is also needed for FTA to conduct a Department of Transportation Act Section 4(f) analysis.
As a practice, FTA makes effects determinations for each historic property. In FTA’s environmental documents, where adverse effect determinations have been identified, the document will include the eligibility criteria (for example, eligible under Criterion A for being associated with the development of railroads in Utah) for each historic property and identify what the adverse effect would be (adverse effect to the historic setting or demolition of a property). The document does not have to be incredibly detailed and can reference a technical appendix that is available on the grant applicant’s website.
Once the Section 106 process is completed and before publication of a final Environmental Impact Statement (EIS), FTA will have received written concurrence from the SHPO on the effect determinations. Where there are adverse effects, FTA will have worked with the consulting parties to develop a draft of a Memorandum of Agreement (MOA) (36 CFR Part 800.16(o)) or Programmatic Agreement (PA) (36 CFR Part 800.16(t)),which is included in the NEPA document appendix. FTA prefers, particularly for complicated and controversial projects, to have an executed programmatic agreement included in the final EIS. In extraordinary circumstances, such as direction from the FTA Administrator, FTA can publish a final EIS without an executed MOA or PA. However, FTA must have an executed MOA or PA before issuing a FONSI or ROD.
After executing a MOA or PA, FTA should email or mail a copy of the agreement to the ACHP with a copy of the agreement and all correspondence sent to FTA’s Federal Preservation Officer.
What is Section 4(f) and how does it involve historic properties?
When Section 4(f) of the U.S. Department of Transportation Act of 1966 (49 USC § 303) was originally codified, it established the policy that a “special effort should be made to preserve the natural beauty of the countryside and public park and recreational lands, wildlife and waterfowl refuges, and historic sites.” Transportation projects that use publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance, or land of an historic site of national, State, or local significance may not be approved by the Secretary of Transportation unless a determination is made that there is no feasible andprudent alternative, and that all possible planning has been done to minimize harm.
Section 4(f) regulations are contained in the joint FHWA and FTA environmental procedures (23 CFR Part 774) for the U.S. Department of Transportation (USDOT). Section 4(f) only applies when USDOT funds are used or anticipated.
Section 106 of the National Historic Preservation Act of 1966, as amended, requires that federal agencies identify and assess the effects of federally assisted undertakings on historic properties. These regulations (contained in 36 CFR Part 800) encourage maximum coordination during the National Environmental Policy Act (NEPA) environmental review process, including Section 4(f). Section 4(f) resources can also be Section 106 resources in the case of historic sites. Under USDOT regulations (23 CFR § 771.135), historic sites qualify as Section 4(f) resources if they are on or are eligible for listing on the National Register of Historic Places.
Are archeological sites addressed as part of the Section 106 process?
Archeological sites are also protected under the National Historic Preservation Act, and the Section 106 process is applied in a similar fashion when a mass transit project involves excavation of any kind. The Archeological and Historic Preservation Act of 1974 (16 USC § 469a) (often referred to as the Moss-Bennett Act), the Archeological Resources Protection Act of 1979, and Executive Order 11593 were written to protect significant archeological resources.
Additional Resources:
National Historic Preservation Act of 1966 (16 USC § 470)
Establishes a national policy for the protection of historic and archaeological sites and outlines responsibilities for federal and state governments to preserve the nation’s history.
Protection of Historic and Cultural Properties (36 CFR Part 800)
Describes the process that FTA must follow to comply with Section 106. Also includes responsibilities of other key participants – the State Historic Preservation Officer, grant applicants for federal grants, and local interested parties.
National Register Criteria for Evaluation (36 CFR Part 60)
The criteria are designed to guide state and local governments, federal agencies, and others in evaluating potential listings on the National Register of Historic Places.
Section 106 Regulations Users Guide, Advisory Council on Historic Preservation
Step-by-step guidance from Advisory Council on Historic Preservation.
Advisory Council on Historic Preservation
An independent federal agency that addresses historic preservation issues in federal policy, programs, and activities, and promotes the protection and enhancement of U.S. historic resources.