1. Is your project an "undertaking" subject to Section 106 review? [800.2(a), 800.16(y)]
If yes, then proceed to the next question.
- If no, then you have completed the process. Document the file.
2. Does your project have the "potential to cause effects" to historic properties? [800.2(a)(1)]
If yes, then proceed to the next question.
- If no, then you have completed the process. Document the file. A "no" response likely means that the project falls under "exempt activities" per 50.19, 58.34 or "categorical exclusions not subject to" related laws per 58.35(b).
3. Is your project subject to an existing Programmatic Agreement (PA)? [800.3(a)(2)]
If no, then comply with the Section 106 review process explained in 800.3-800.6.
- If yes, notify SHPO/THPO that you will complete the process by complying with the terms of that PA.
4. What is "consultation"?
Consultation means the process seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them regarding matters arising in the Section 106 process [800.16(f)]. Additional information on consultation is available at 63 FR 20504 (April 24, 1998)."
5. Section 106 Definitions
When must the environmental review for a HUD-assisted project include an evaluation of the impacts to historic properties?
If HUD assistance is proposed for property repair, rehabilitation of an existing structure, conversion of use, demolition, new construction, or the acquisition of undeveloped land, then the environmental review (24 CFR 58.5(a) or 24 CFR 50.4 (a)) requires evidence of consultation with the State Historic Preservation Officer (SHPO), the Tribal Historic Preservation Officer (THPO), and in some cases the Advisory Council on Historic Preservation (ACHP). Following the Secretary of the Interior's Standards and Guidelines for Evaluation, and in consultation with the relevant SHPO(s)/THPO(s), determinations must be made and documented in the environmental review as to whether the property is:
(a) listed on or eligible for listing on the National Register of Historic Places; or
(b) located within or directly adjacent to a National Register eligible or listed historic district; or
(c) a property whose area of potential effects includes a National Register eligible or listed historic district or property; and
(d) for properties found to be on or eligible for listing on the National Register, further determinations are required concerning the effect of the undertaking on the property (36 CFR Part 800.4(d)(2) and 800.5.)
What regulations are to be followed for historic preservation processing?
Historic properties and districts are subject by law to special protection and historic preservation processing, which must be performed to comply with the regulations of the Advisory Council on Historic Preservation (36 CFR Part 800). For properties determined to be historic properties, (or properties whose area of potential effects includes a historic district or property) even if the SHPO/THPO concludes that no adverse effect will occur as a result of the assisted project, 30 to 90 days may be required to obtain this information and in most cases to perform the processing required by 36 CFR 800. These regulations implement the National Historic Preservation Act of 1966 (NHPA) as amended, (16 U.S.C. 470 et seq.) and related authorities. The goal of this regulatory process is to avoid, minimize, or mitigate adverse effects on historic properties.
What types of written findings or responses from the SHPO/THPO and/ or ACHP are included in the environmental review record for the assisted project?
If an Adverse Effect is determined to exist, the ACHP must be notified, continuing consultations with the SHPO/THPO, other consulting parties and, in some cases the ACHP are necessary in accordance with 36 CFR Part 800.6. Such consultations will result in either a change in the undertaking to create No Adverse Effect, a Memorandum of Agreement (MOA) or Programmatic Agreement (PA), for dealing with the adverse effect, or a breaking off of consultations (36 CFR Part 800.7.)
- There are four results of the historic property identification and evaluation process to which the SHPO/THPO will respond in writing:
- There are no historic properties present;
- There are historic properties present but the undertaking will have no effect upon them;
- There are historic properties present that may be affected by the undertaking and the undertaking will have No Adverse Effect on those properties; or
- There are historic properties present and the undertaking will have an Adverse Effect on those properties.
- If concurrence is not reached with the SHPO/THPO on (i)-(iii) above, or if the SHPO/THPO or ACHP objects within 30 days to the finding of (i)-(iii), then consultation must continue on the adverse effects of the undertaking. There are two results of the adverse effects assessment process to which the SHPO/THPO and/or ACHP will respond: No adverse effect; or Adverse effect. The process is concluded if concurrence is reached on (i)-(iii).
Information Sources for Historic Properties
Where is information available on historic properties?
Information on historic properties within your State or Tribe is available from the State Historic Preservation Officer (SHPO) or Tribal Historic Preservation Officer (THPO) and the local historical society.
The National Park Service, Department of Interior, holds information on every property listed in the National Register of Historic Places. It may also have information on many properties that have been determined eligible and that have been nominated for (not yet listed in) the National Register. For the National Register regulations, see: 36 CFR Part 60.
For regulations of the Advisory Council on Historic Preservation, see 36 CFR Part 800.
See the Secretary of the Interior's Standards and Guidelines for Evaluation.
EZ/EC and Historic Properties
Does Section 106 for historic preservation processing apply to the Empowerment Zone/Enterprise Communities (EZ/EC) program?
Compliance with environmental review procedures including historic preservation processing is required for EZ grants proposed for property acquisition, repairs and rehabilitation of an existing structure, conversion of land use, demolition, and new construction. Environmental review procedures do not apply to the tax incentive aspects of the EZ/EC program. HUD policy is at Notice CPD-99-07 (issued September 20, 1999).
Emergency Demolition of Public Housing Structures and Section 106 Applicability
What Section 106 procedural and documentation requirements apply to emergency undertakings?
Section 110(k) of the NHPA as amended (16 U.S.C. 470 et seq.) states that no federal agency shall give assistance to an applicant who intends to intentionally create an adverse effect on historic properties. This is to prevent federal agencies from rewarding applicants for neglecting and/or mismanaging historic properties and thus undermining the goals of the NHPA. However, under the Section 106 regulations (see 36 CFR 800.12), "Emergency Situations"), there are specific times when emergency undertakings may occur with federal assistance. First, §800.12 applies only to undertakings that will be implemented within 30 days after a disaster or emergency has been formally declared by the appropriate authority (President, Tribal government, Governor, local government's chief executive officer or legislative body). Second, the types of emergency undertakings intended to be covered under §800.12 include, but are not limited to, immediate and essential responses to storms, floods, acts of war or terrorism, and other threats to life and property. Sec. 800.12 is not intended to cover cases of property-owner neglect or mismanagement.
When the agency official determines that §800.12 applies, the following procedural and documentation requirements apply:
Notify the SHPO/THPO, ACHP, and other consulting parties of the properties to be affected prior to the undertaking and allow them an opportunity to comment within 7 days. Notification can be by telephone, fax, e-mail, or letter. Comments may be submitted likewise.
If the agency official determines that circumstances do not permit 7 days for comment, the agency official must notify the SHPO/THPO, ACHP, and other consulting parties and invite any comments within the time available. Again, notification can be by telephone, fax, e-mail, or letter. Comments may be submitted likewise.
When a local government official serves as the agency official (for purposes of Section 106 compliance), the same procedural and documentation requirements as noted above apply. However, if the ACHP or SHPO/THPO objects to the proposed emergency undertaking within 7 days, the local government shall comply with §800.3 through 800.6.
If §800.12 does not apply to a proposed "emergency" undertaking, then the agency official must comply with §800.3 through 800.6.
Sec. 800.12 encourages agencies to develop procedures, Programmatic Agreements, and other agency alternatives to streamline the Section 106 compliance process for emergency undertakings.
SHPO/THPO Response within 30 Days
Is the failure of the SHPO/THPO to respond within the 30-day period considered agreement of the SHPO/THPO with the finding required at 36 CFR 800.5(c)(1) and fulfillment of the SHPO/THPO 106 review responsibilities?
From 36 CFR Part 800.3(a)(4) and 800.5(c)(1), it is clear that if the SHPO/THPO fails to respond within 30 days from receipt of the finding, it shall be considered agreement of the SHPO/THPO with the finding. It is prudent to have proper documentation that proves the dates on which the SHPO/THPO received/logged the information (i.e., a USPS return receipt).