Section 106 Review and Compliance

Section 106 of the National Historic Preservation Act of 1966, as amended, requires a federal agency to take into account the effects of its undertakings on properties eligible for, or listed in the National Register of Historic Places. Federal agencies may ask applicants for federal funds, licenses, or permits to assist them in meeting their Section 106 compliance responsibilities. Section 106 review is a consultative process. As the State Historic Preservation Office (SHPO) for Tennessee, the Tennessee Historical Commission (THC) has specific responsibilities throughout the review process. The federal regulations for implementing Section 106 can be found at 36 CFR 800. For detailed guidance, please review the Section 106 Applicant Toolkit.

 

Review Process

  1. Initiate Consultation – The federal agency must determine whether the proposed action is an “undertaking” as defined in 36 CFR 800. If the action has no potential to affect historic properties, then it does not qualify as an undertaking and the agency is finished with its Section 106 obligations.

    When an action qualifies as an undertaking, the federal agency or its designated representative must submit detailed project documentation to THC office and any additional consulting parties for review and comment. Participants in the Section 106 process may include local governments, federally recognized Native American Tribes, applicants for federal assistance, interested parties, and the public. Please review the THC Section 106 Review and Compliance Checklist for guidance regarding the basic documentation necessary to begin Section 106 Review.

    THC Section 106 Review and Compliance staff have 30 days from receipt of a project submission to respond. Subsequent 30 day review periods begin each time additional information is received.

  2. Identifying Historic Properties – Federal agencies are required to make a reasonable and good faith effort to identify historic properties located within the Area of Potential Effect (APE). The APE is the geographic area of an undertaking that has the potential to cause effects to historic properties, either directly or indirectly. For Section 106 purposes, historic properties are defined as those listed in or eligible for the National Register of Historic Places. Historic properties include such resources as individual buildings, historic districts, bridges, landscapes, and archaeological sites.Identification surveys must be carried out by professionals who meet the Secretary of the Interior’s Professional Qualifications Standards.
     
  3. Assess Effects on Historic Properties – If historic properties are identified within the APE, the federal agency must determine if the proposed undertaking will affect those historic properties and whether that effect will be “adverse.” An effect is adverse if the undertaking will alter the characteristics of a property that qualify it for listing in the National Register in such a way that it diminishes that property’s eligibility. Effects may be direct or indirect. Direct effects include changes in the property’s location, design, setting, materials, and integrity. Indirect effects may include visual, audible, or economic changes associated with the proposed undertaking.

    Once the federal agency or its designated representative has made an assessment of effects they should submit all relevant documentation to our office with a request for concurrence with their determination. THC will respond either concurring or not concurring with the agency’s effect determination. Consultation can result in one of the following three effect determinations:
     
    • No Historic Properties Affected – Applicable when either there are no historic properties present in the APE or the undertaking will have no effect on a historic property within the APE.
    • No Adverse Effect – The undertaking will affect historic properties in the APE, but the effect will not be adverse.
    • Adverse Effect – The proposed project will have an adverse effect on historic properties in the APE. The federal agency shall continue consultation to avoid, minimize, or mitigate the adverse effects to historic properties.
  4. Resolve Adverse Effects –The agency will consult with the THC and other consulting parties to develop alternatives to avoid, minimize, or mitigate the adverse effects of an undertaking on historic properties. If complete avoidance of adverse effects to historic properties is impossible, the agency, THC, and other consulting parties will formalize the steps necessary to minimize, mitigate, or treat the adverse effect in a Memorandum of Agreement.

All reviews must be submitted as a hard copy to:

E. Patrick McIntyre, Jr.
Executive Director and State Historic Preservation Officer
Tennessee Historical Commission
State Historic Preservation Office
2941 Lebanon Pike
Nashville, TN 37214