Historic Preservation: A New Section 106 Process

Charlotte R. Bell

Ms. Bell is Associate General Counsel for the Advisory Council on Historic Preservation, which is responsible for implementing § 106 of the National Historic Preservation Act.

[17 ELR 10002]

Section 106 of the National Historic Preservation Act (NHPA)¹ requires federal agencies to take into account the effects of their undertakings on properties eligible for or listed in the National Register of Historic Places. Agencies must afford the Advisory Council on Historic Preservation (the Council)² an opportunity to comment on those undertakings, prior to any licensing or approval of the expenditure of funds.³ In 1979, the Council issued regulations setting out the means by which federal agencies were to comply with § 106.⁴ The process set forth in the regulations became known as the "Section 106 process."

In 1981, the President instituted a government-wide regulatory reform effort, calling on agencies to review existing regulations and revise them when necessary to reduce regulatory burden, increase agency accountability, and ensure well-reasoned regulations.⁵ The chairman of the Council initiated a review of the § 106 regulations. In September 1986, after considerable deliberation within the government, the Council published revised § 106 regulations.⁶

The Council's revised regulations reassert the basic tenets of the former regulations: that the goals of § 106 are best achieved through thorough identification of historic properties, reasoned assessment of effects, and consultation involving the federal agency, representatives to the affected states, and others as appropriate.⁷ To this end, the revised § 106 process contains five steps, similar to those in the former regulations: identification of the historic properties within the area of an undertaking's potential effects; determination of the effects of the undertaking on those properties; consultation among the involved federal agency, the State Historic Preservation Officer (SHPO), and others, when appropriate, to seek ways to avoid or reduce the effects on the historic properties; affording the Council an opportunity to comment on the undertaking; and proceeding with the agency's decisionmaking process.⁸

General Changes in the Revised Regulations

Within this framework, however, the revised regulations are changed in several general respects. First, the revised rules offer greater flexibility in the § 106 process.⁹ Instead of requiring all agencies to follow the same procedure for all undertakings, the revised regulations offer the agencies alternative compliance systems. For example, agencies may consult with the SHPO with or without the participation of the Council or others,¹⁰ may develop programmatic approaches to their undertakings,¹¹ or may issue and follow counterpart regulations tailored to their particular needs.¹² The revised regulations eliminate several procedural hurdles and provide for more expeditious review.

Second, the revised regulations place more reliance on [17 ELR 10003] consultation between the federal agency and the SHPO and the solutions to preservation problems they develop during consultation.¹³ This is a departure from former procedure which required that the Council always be a party to consultation. Now, although the Council remains available to be included in the process, its primary role is that of arbitrator when problems arise.¹⁴

Third, the revised regulations contain more explicit public participation provisions. The goal of these provisions is to give all interested persons an opportunity to learn about federal agency undertakings and to voice their views.¹⁵

Finally, new provisions were added concerning National Historic Landmarks,¹⁶ resources discovered during construction,¹⁷ emergency undertakings,¹⁸ and coordination with other authorities.¹⁹

Identification of Historic Properties

The revised regulations make only minor changes in the identification step of the § 106 process. Federal agencies continue to have an affirmative responsibility to make a reasonable and good faith effort to identify historic properties that may be affected by their undertakings and to gather enough information to evaluate the eligibility of those properties for the National Register of Historic Places. The SHPOs are still consulted as experts on the state's resources and as sources of information.²⁰

One provision that has been changed is the definition of undertaking. Under the revised regulations, a federal activity is an "undertaking" requiring compliance with § 106 only if it has the potential to affect historic properties. Under the former regulations, the § 106 regulations applied even if there was no potential to affect historic properties. This change simplifies the process by eliminating unnecessary review. If historic properties may be affected, then the regulations apply, as before, to the full range of activities.²¹

A second change allows federal agencies and SHPOs jointly to determine the eligibility of properties for the National Register of Historic Places. When the agency and the SHPO agree, the agency need not submit the property to the Secretary of the Interior for a determination of eligibility, as was previously required.²²

Third, the revised regulations allow agencies to begin nondestructive planning for their undertakings before the § 106 process is complete.²³ The regulations also endorse the use of predictive modelling in identifying historic properties and the use of the Secretary of the Interior's "Standards and Guidelines for Archeology and Historic Preservation."²⁴

Assessing the Effects of the Undertaking

As under the former regulations, an agency, having identified the historic properties affected by its undertaking, is required to assess the effects of the undertaking on those properties. To do so, the agency first applies the regulations' criteria of effect²⁵ in consultation with the SHPO.²⁶ If no effect is found, the revised regulations require the agency to notify interested persons and the SHPO. Once the agency has done so, the required § 106 process is complete.²⁷

If an effect is found, the agency applies the criteria of adverse effect,²⁸ again in consultation with the SHPO.²⁹ If the agency determines the effect not to be adverse, the revised regulations allow the agency two options. It may obtain the SHPO's concurrence with its "no adverse effect" determination and submit summary documentation of the finding to the Council,³⁰ or it may submit the finding to the Council with more complete documentation³¹ and without the SHPO's concurrence, notifying the SHPO.³² If the Council does not object or if the Council objects but proposes changes that the agency accepts, the agency is not required to take further steps in the § 106 process.³³

The time frames within which the SHPO and the Council must operate are newly defined. As a general matter, the SHPO has 30 days to respond to any request from an agency for participation.³⁴ Specific sections of the regulations may shorten the SHPO's review time. For example, the SHPO has only 15 days to object to an agency's determination of "no effect."³⁵ The regulations also impose time constraints on the Council at this stage, allowing the Council 30 days to review agency findings of "no adverse effect."³⁶

Consultation

When the agency determines that the effect of an undertaking on historic properties is adverse, it initiates consultation [17 ELR 10004] with the SHPO. The revised regulations no longer require the Council to be a participant in this consultation process. However, the Council may be invited or may elect to participate without an invitation.³⁷ The revised regulations are also more specific on the circumstances under which other parties must be or may be invited to participate in the consultation,³⁸ and encourage written agreements between the agency and the SHPO.³⁹ These two-party agreements are similar to the "expedited memoranda of agreement" previously recognized only in supplementary guidance from the Council.

Although agencies are encouraged to use the consultation process to the fullest extent possible,⁴⁰ the structure of the consultation is left to the discretion of the participants. The revised regulations impose only documentation and public participation requirements.⁴¹ As before, the goal is a memorandum of agreement (MOA) embodying the parties' agreement on how the adverse effects of the undertaking will be addressed.⁴² When the consultation is not productive, the agency, SHPO, or the Council, if participating, may terminate the consultation process. The agency must then request comments from the Council.⁴³

Council Comment

As under the former regulations, the Council may comment either by accepting or executing an MOA⁴⁴ or by providing written comments.⁴⁵ The preferred method is through an MOA; written comments generally are prepared only when no agreement has been reached.⁴⁶

When the agency and the SHPO have submitted a two-party MOA to the Council, the Council reviews it and may either accept it, recommend changes, or decline to accept it and comment on the undertaking. If the Council accepts the agreement, the § 106 process is complete.⁴⁷ Likewise, when the Council has participated in the consultation and joins the agency and the SHPO in executing an MOA, the § 106 process is complete.⁴⁸

The form of Council endorsement of MOAs has been changed. Previously, the signatures of both the chairman of the Council and the Executive Director appeared on MOAs; under the revised regulations, the Council's endorsement of an MOA will be indicated by one signature only, usually the Chairman's.⁴⁹

The revised regulations introduce new time limits into the consultation process. When the agency and the SHPO submit a signed MOA to the Council, the Council has 30 days to accept it, offer changes, or decide to comment on the undertaking.⁵⁰ When there is no MOA, the Council provides written comments within 60 days. Many of the procedural steps contained in the former regulations have been omitted from this step.⁵¹

The revised regulations also permit the Council to advise an agency that the agency has foreclosed the Council's opportunity to comment.⁵² This occurs when the agency has not complied with the Council's regulations and has proceeded with its undertaking to such an extent that consideration of alternatives is no longer possible. When this happens, the agency is in violation of § 106.

Proceeding

Once the agency has completed the § 106 process, it makes its decision about whether and how to proceed with the undertaking. As under the former regulations, the agency must honor any commitments it has made during the consultation, including complying with the terms of any MOA it has signed. Failure to do so requires the agency to resubmit the undertaking to the Council for further comment.⁵³ If the Council has provided written comments on the undertaking, the agency must consider those comments in reaching its final decision on the proposed undertaking.⁵⁴

Public Participation

The revised regulations contain specific requirements at various stages of the process for notifying and including parties other than the agency, the SHPO, and the Council. These provisions seek to guarantee that the views of interested persons are considered at each major agency decisionmaking point in the § 106 process and that interested persons are notified whenever the agency makes a final decision that allows it to proceed without full consultation.⁵⁵ For example, the agency must seek input from certain parties in assessing its information needs at the beginning of the identification step of the § 106 process;⁵⁶ consider the views of interested persons in applying the criteria of effect;⁵⁷ and involve interested persons in the consultation process, as appropriate.⁵⁸ Interested persons must be notified when no historic properties are found⁵⁹ and when no effect is found.⁶⁰

[17 ELR 10005]

A new provision allows any person to request Council review of an agency's efforts to locate historic properties, its evaluation of properties' historic significance, its determination that no historic properties will be affected by the undertaking, and its finding of no effect. The agency must reconsider its finding in light of the Council's views.⁶¹

Other Changes

The revised regulations contain a number of other changes. First, a new section requires special consideration of National Historic Landmarks. Consultations involving landmarks must include the Council.⁶² Second, the revised regulations expand the alternatives and accelerate the handling of discoveries of historic properties made during the course of construction. Agencies are encouraged to plan for discoveries and are offered various options to speed resolution of the additional problems posed by discoveries.⁶³

Third, a new section provides agencies with alternative ways to fulfill their § 106 responsibilities in an emergency, including a waiver option in certain circumstances and an expedited commenting period.⁶⁴

Finally, the revised regulations encouraged agencies to coordinate their § 106 responsibilities with their implementation of other historic preservation and environmental authorities. In addition to the National Environmental Policy Act,⁶⁵ which was mentioned in this context in the former regulations, the revised regulations urge coordination with the Archeological and Historic Preservation Act,⁶⁶ the Archeological Resources Protection Act,⁶⁷ and § 4(f) of the Department of Transportation Act.⁶⁸ The provision encourages the coordination of studies and public involvement processes and the use of a single document to satisfy all applicable authorities.⁶⁹

Conclusion

Although the Council's regulations were revised to eliminate perceived regulatory burdens, the revised § 106 process is not greatly changed. The basic steps — identification, assessment of effects, consultation, Council comment, and proceeding — are indispensable for agencies successfully to take the effects of their undertakings into account and to afford the Council a reasonable opportunity to comment. Nevertheless, by offering new options and eliminating procedural hurdles, the revised regulations achieve the President's goal of less burdensome, better-reasoned regulations.

1. 16 U.S.C. §§ 470-470w-6, ELR STAT. 42435.

2. The Council was established by NHPA § 201, 16 U.S.C. § 470i, ELR STAT. 42441.

3. Section 106 of NHPA is codified at 16 U.S.C. § 470f, ELR STAT. 42440. The National Register is maintained by the Secretary of the Interior under NHPA § 101, 16 U.S.C. § 470a, ELR STAT. 42436.

4. The Council is authorized to issue regulations by NHPA § 211, 16 U.S.C. § 470s, ELR STAT. 42443. The Council's regulations are at 36 C.F.R. Part800 (1986). References in this article to 36 C.F.R. are to the revised regulations. For a thorough discussion of the § 106 process prior to the revisions, see Bell, Protecting the Built Environment: An Overview of Federal Historic Preservation Law, 15 ELR 10354 (1985).

5. Executive Order No. 12291, 3 C.F.R. 127 (1982), ELR REG. 45035, reprinted in 5 U.S.C. § 601 note (1982). The background of the Executive Order is described in Comment, Reagan Orders Cost-Benefit Analysis of Regulations, Confers Broad Powers on OMB, 11 ELR 10044 (1981).

6. The proposed revised regulations were published at 50 Fed. Reg. 41,828 (Oct. 15, 1985). The final revised regulations were published at 51 Fed. Reg. 31,115 (Sept. 2, 1986), and became effective on October 1, 1986.

7. See 36 C.F.R. § 800.1(b) (1986).

8. For an in-depth discussion of how the § 106 process works, see generally ADVISORY COUNCIL ON HISTORIC PRESERVATION, SECTION 106, STEP-BY-STEP (1986) (booklet available from the Council).

9. See 36 C.F.R. § 800.3(b) (1986).

10. See 36 C.F.R. § 800.5(e) (1986). See also 36 C.F.R. § 800.7 (1986) which allows agencies to elect to follow a state review process that has been approved by the Council.

11. 36 C.F.R. § 800.13 (1986). Programmatic agreements are appropriate for programs or projects with similar effects, of national or regional scope, for which effects cannot be determined prior to approval, that involve delegation to nonfederal entities, or that involve routine matters. Programmatic agreements are developed by the agency, the Council, and the appropriate SHPO or SHPOs through a consultation process similar to the § 106 process for individual undertakings.

12. Agencies may develop counterpart regulations in consultation with the Council to stand in the place of the Council's § 106 regulations. 36 C.F.R. § 800.15 (1986).

13. 36 C.F.R. § 800.5(e) (1986).

14. See 36 C.F.R. § 800.5(d) (objection to "no adverse effect" determination), § 800.5(e)(6) (ending consultation), § 800.6(a) (objection to two-party MOA), § 800.6(b) (comment when no agreement has been reached), and § 800.6(e) (response to public requests for review of agency findings).

15. For a description of "interested persons," see 36 C.F.R. § 800.1(c)(2) (1986).

16. 36 C.F.R. § 800.10 (1986).

17. 36 C.F.R. § 800.11 (1986).

18. 36 C.F.R. § 800.12 (1986).

19. 36 C.F.R. § 800.14 (1986).

20. 36 C.F.R. §§ 800.4(a)-(c) (1986). For a discussion of the general role of the SHPO, see 36 C.F.R. § 800.1(c)(1)(ii) (1986).

21. 36 C.F.R. § 800.2(o) (1986).

22. 36 C.F.R. §§ 800.4(c)(2) and (3) (1986). If the agency and the SHPO do not agree or if the Council or the Secretary of the Interior so request, the agency must obtain a determination from the Secretary. 36 C.F.R. § 800.4(c)(4) (1986).

23. 36 C.F.R. § 800.3(c) (1986).

24. 36 C.F.R. §§ 800.4(a)(2) and (b) (1986). The Secretary's Standards and Guidelines are found at 48 Fed. Reg. 44,716 (Sept. 29, 1983).

25. The criteria of effect have been condensed from those in the former regulations. The revised criteria are at 36 C.F.R. § 800.9(a) (1986).

26. 36 C.F.R. § 800.5(a) (1986).

27. 36 C.F.R. § 800.5(b) (1986).

28. The criteria of adverse effect are at 36 C.F.R. § 800.9(b) (1986).

29. 36 C.F.R. § 800.5(c) (1986).

30. 36 C.F.R. § 800.5(d)(1)(i) (1986).

31. The documentation requirements are at 36 C.F.R. § 800.8(a) (1986).

32. 36 C.F.R. § 800.5(d)(1)(ii) (1986).

33. 36 C.F.R. § 800.5(d)(2) (1986).

34. 36 C.F.R. § 800.1(c)(1)(ii) (1986).

35. 36 C.F.R. § 800.5(b) (1986).

36. 36 C.F.R. §§ 800.5(d)(1)(ii) and (d)(2) (1986). As under the former regulations, the Council may accept a finding, propose changes to it, or object to the finding. 36 C.F.R. § 800.5(d)(2) (1986).

37. 36 C.F.R. § 800.5(e) (1986).

38. 36 C.F.R. § 800.5(e)(1) (1986).

39. 36 C.F.R. § 800.5(e)(4) (1986).

40. See 36 C.F.R. § 800.5(e)(6) (1986).

41. Documentation requirements are found at 36 C.F.R. §§ 800.5(e)(2) and 800.8(b) (1986). Public participation requirements are found at 36 C.F.R. §§ 800.5(e)(1) and (3) (1986).

42. 36 C.F.R. § 800.5(e)(4) (1986).

43. 36 C.F.R. § 800.5(e)(6) (1986).

44. 36 C.F.R. §§ 800.5(e)(4) and 800.6(a) (1986).

45. 36 C.F.R. §§ 800.6(a)(1)(iii), (a)(2), and (b) (1986).

46. 36 C.F.R. §§ 800.6(a)(2) and (b) (1986).

47. 36 C.F.R. §§ 800.6(a)(1)(i) and (ii) (1986).

48. 36 C.F.R. §§ 800.5(e)(4) and 800.6(c)(1) (1986).

49. The revised regulations omit the distinctions between the Council, the chairman of the Council, and the Executive Director of the Council that were found in the former regulations. The revised regulations refer only to the Council. This change is the basis for the change in endorsement.

50. 36 C.F.R. § 800.6(a)(1) (1986).

51. 36 C.F.R. § 800.6(b) (1986).

52. 36 C.F.R. § 800.6(d) (1986).

53. See 36 C.F.R. § 800.6(c)(1) (1986).

54. 36 C.F.R. § 800.6(c)(2) (1986). As before, the agency is legally free to decide not to follow the Council's comments. See Bell, Protecting the Built Environment: An Overview of Federal Historic Preservation Law, 15 ELR 10354, 10362 (1985).

55. See 36 C.F.R. § 800.1(c)(2) (1986) for a description of interested persons.

56. 36 C.F.R. § 800.4(a)(1)(iii) (1986).

57. 36 C.F.R. § 800.5(a) (1986).

58. 36 C.F.R. §§ 800.5(e)(1) and (3) (1986).

59. 36 C.F.R. § 800.4(d) (1986).

60. 36 C.F.R. § 800.5(b) (1986).

61. 36 C.F.R. § 800.6(e) (1986).

62. 36 C.F.R. § 800.10 (1986). Section 110(f) of NHPA requires that agencies, to the maximum extent possible, undertake such planning and actions as may be necessary to minimize harm to any National Historic Landmark that may be directly and adversely affected by an undertaking, and to provide the Council an opportunity to comment. 16 U.S.C. § 470h-2, ELR STAT. 42440.

63. 36 C.F.R. § 800.11 (1986).

64. 36 C.F.R. § 800.12 (1986).

65. 42 U.S.C. §§ 4321-4361, ELR STAT. 41009.

66. 16 U.S.C. §§ 469-469c.

67. 16 U.S.C. §§ 470aa-470ll.

68. 49 U.S.C. § 303, ELR STAT. 41605.

69. 36 C.F.R. § 800.14 (1986).