Section 106 Review

The Federal agency must determine if their proposed action is an “undertaking” as defined in 36 CFR 800.16y: which states an undertaking “means a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; and those requiring a Federal permit, license or approval.” Further, undertakings are those actions that have the potential to affect historic properties. This is determined by the action itself and not whether or not there are historic properties present as the presence of historic properties is determined through consultation (Step 2) during the Section 106 process. During this step, Federal agencies must also plan identify the appropriate SHPO/THPO, other potential consulting parties (Indian tribes, local governments, historical organizations, etc.), and plan to involve the public. Our office is the Tennessee SHPO and is a mandatory consulting party for all Section 106 undertakings in Tennessee.

In consultation with the SHPO (or THPO if on Tribal land), Federal agencies should identify the scope of identification efforts for historic properties. During this step, Federal agencies determine and document the Area of Potential Effects (APE), which is the area in which an undertaking may affect historic properties, either directly or indirectly, if historic properties were to be present. The Federal agency then identifies historic properties within the APE. For purposes of Section 106, historic properties are resources either listed in or determined eligible for the National Register of Historic Places and can be both above and below-ground resources. Identification efforts can include background research, consultation with parties with information about the history of a certain area or resources in that area, field work, oral history interviews, etc. Consultation with Indian tribes is important in this step as they possess special expertise in assessing the eligibility of historic properties that may be of significance to them, as required in the Section 106 regulations at 36 CFR Section 800.4(c)(1). This consultation should be done on a government to government basis. More information on consultation with Indian tribes can be found here.

If the Federal agency determines there are no historic properties within the APE, or that historic properties within the APE will not be affected, they should document this finding of no historic properties affected and provide that documentation to our office for concurrence. Other consulting parties and the public should also be notified of this finding.
Below are resources from our office that can aid in background research for identifying historic properties.
 

If historic properties are identified, then Federal agencies must apply the criteria of adverse effects to determine if those properties will be adversely affected by the undertaking. An adverse effect is found when an undertaking directly or indirectly alters any characteristics of a historic property that qualify the property for inclusion in the National Register of Historic Places in a manner that diminishes the resource’s integrity. Effects can be direct or indirect and include reasonable foreseeable effects that may occur later in time, be further removed in distance, or be cumulative.

If the Federal agency determines that there will not be an adverse effect, then they should submit a finding of no adverse effect to the SHPO for concurrence. Other consulting parties and the public should also be notified of the finding of no adverse effect. If an adverse effect is determined, the same notification process should take place, but they will also move to Step 4 to resolve the adverse effect.

If an adverse effect is determined is Step 3, the Federal agency must resolve the adverse effect through consultation either by avoidance, minimization, or mitigation. If complete of avoidance of the adverse effects to historic properties is not possible, the Federal agency will need to continue the Section 106 process and develop a Memorandum of Agreement (MOA) and follow the steps below.

1. Notify the Advisory Council on Historic Preservation (ACHP) of the adverse effect to afford them the opportunity to participate in the consultation to resolve the adverse effect. You will fill out their e106 form which can be found on their website. Please ensure you follow their directions and provide all the information they request. ACHP gets 15 days to decide if they wish to participate or if they need more information.
2. Notify any relevant Tribes of the adverse effect to afford them the opportunity to participate in consultation. Most federal agencies have their own Tribal Consultation processes that should be followed.
3. Notify the public and potential consulting parties of the adverse effect so they are afforded the opportunity to participate. In our experience, most federal agencies notify potential parties and then allow anywhere from 30-60 days for a response. Most federal agencies have their own process for this step.
4. Consult with all consulting parties, including Tribes, and any members of the public on minimization efforts or mitigation for the adverse effect. This is where all parties decide what will go into the Memorandum of Agreement (MOA). This can take the form of formal consultation meetings or through other means. Regardless how this step is implemented, it is important that all consulting parties are aware of the views and comments of one another, unless sensitive or confidential information is involved. 
5. Once the MOA is signed, the project can move forward as long as any mitigation that needs to be completed before the project starts is completed prior to any work (for instance, if mitigation includes documentation, the documentation must be completed before any work begins).