The historic preservation review process required by Section 106 is outlined in regulations (36 CFR (Code of Federal Regulations) Part 800 Protecting Historic Properties) issued by Advisory Council on Historic Preservation (ACHP). Section 106 requires federal agencies to take into account the effects of their undertakings on historic properties and consider other agency, tribal and public views and concerns about historic preservation issues when making final project decisions. The procedures in 36 CFR 800 define how federal agencies meet these statutory responsibilities.
What is a federal undertaking? A federal undertaking is a project, activity, or program either funded, permitted, licensed, or approved by a federal agency. Undertakings may take place either on or off federally controlled property and include new and continuing projects, activities, or programs and any of their elements not previously considered under Section 106 review. All Denver Service Center design and construction projects are federal undertakings.
- Section 106 Four Step Review Process: For many projects, the NPS follows the ensuing four steps to fulfill Section 106 requirements. The steps must be carried out sequentially. For example, the NPS cannot assess the effects of the undertaking on historic properties until it has identified and evaluated historic properties within the project’s area of potential effects (APE).
- Initiate the Section 106 Process: Initiate consultation by notifying the appropriate consulting parties. The following parties are entitled to participate as consulting parties during Section 106 review: ACHP State Historic Preservation Officers (SHPO), federally recognized Indian tribes/Tribal Historic Preservation Officers (THPO), Native Hawaiian organizations, local governments; and applicants for federal assistance, permits, licenses, and other approvals. Other individuals and organizations with a demonstrated interest in the project may participate in Section 106 review as consulting parties due to the nature of their legal or economic relation to the project or affected properties, or their concern with the project’s effects on historic properties.
- Identify Historic Properties: Identify cultural resources that may be affected by the project and determine if the resource or resources are historic as determined by eligibility or listing in the National Register of Historic Places.
- Assess Effects: Assess the effects of the project on cultural resources in consultation with interested parties and establish if the effects are adverse. What is an adverse effect? If a project may alter characteristics that qualify cultural resources for inclusion in the National Register in a manner that would diminish the integrity of the resource, that project is considered to have an adverse effect. Integrity is the ability of a property to convey its significance, based on its location, design, setting, materials, workmanship, feeling, and association. Adverse effects may include reasonably foreseeable effects caused by the project that may occur later in time, be farther removed in distance or be cumulative.
Adverse effects can be direct or indirect and include the following:
- physical destruction or damage
- alteration inconsistent with the Secretary of the Interior’s Standards for the Treatment of Historic Properties
- relocation of the property
- change in the character of the property’s use or setting
- introduction of incompatible visual, atmospheric, or audible elements
- neglect and deterioration
- transfer, lease, or sale of a historic property out of federal control without adequate preservation restrictions
- Resolve Adverse Effects: Sometimes there is no feasible and prudent way for a needed project to proceed without adversely effecting cultural resources. Through discussions with other consulting parties, the NPS explores ways to minimize or mitigate adverse effects. The result of the consultations may be a memorandum of agreement (MOA) or a programmatic agreement (PA). The MOA or PA is a legally binding document, which evidences the NPS’s compliance with Section 106 and records the outcome of consultation, the effects of the project on cultural resources, and the way in which the adverse effects will be minimized or mitigated.
- Section 106 Four Step Review Process Flowchart
