COSCDA WorkshopRenovation, Reconstruction and Renewal of Historic

Properties and NeighborhoodsSection 106 and Programmatic Agreements Overview

The renowned

first Cultural Resource advisor to

government agencies.

Alas, then the lawyers

got involved…

What is Section 106?• Section 106 of the National Historic

Preservation Act (NHPA) establishes the protocols for most cultural resource studies.

• Applied to nearly all projects on non-federal lands that involves federal dollars or agency review (officially designated an “undertaking”).

• Requires that historic properties be identified and managed within the project’s direct and indirect impact zones (called the Area of Potential Effects).

• Main purpose is to avoid Adverse Effects to historic properties in the project area.

“Because of the statutory / regulatory requirement to afford State / Tribal Historic Preservation Offices (SHPO / THPO) a minimum 30 day period to comment on each undertaking, Historic Preservation will normally be the most time-consuming environmental review factor for projects involving minor exterior rehabilitation or disposition activities.”

Quote from July 2010 HUD guidance memo

What are historic properties?

All old things are not protected by the law

To be protected, the NHPA defines a historic property as a location that is eligible for listing on the National Register of Historic Places (the NRHP). It must generally be more than 50 years old and be significant at the local, state or federal level for one or more of the following reasons:

• The location is associated with events that are broadly important at a federal, state or local level (for example, a Civil War battlefield or an early African-American residential community)

• It is associated with a particular person that is significant to the community’s or nation’s past

• It demonstrates unique or rare qualities in its construction, its artistic value, or is an excellent example of its time period

• It has the potential to provide important information for our knowledge of history or of prehistoric Native American settlements

There are three primary kinds of cultural resources that are taken into account and can be historic properties:

(1) Architectural (historic preservation) – individual above-ground buildings or structures and groups of similar buildings (historic districts).

(2) Archaeological –cultural materials deposited in the ground through present and past settlement on the land.

(3) Traditional Cultural Properties – areas of importance to a community based on its past use, primarily associated with Native American Tribes but can be any ethnic group – information often can only be obtained through consultation. with those community members. It is not discussed further here as it has not been applicable.

Certain homes are obviously

of historic importance

But some less obvious things are also historic and protected by the federal acts, such as many bridges.

Or some less obvious homes…

A group of similar types of buildings can make up a historic district.

While NRHP-eligible archaeology sites can look like this from the surface.

Who is involved in Section 106?

• The Advisory Council on Historic Preservation in Washington, D.C. (Department of Interior, administrator of the NHPA).

• Each state has a State Historic Preservation Office (SHPO) that reviews Section 106 undertakings in that state.

• Federally-recognized Native American tribes that have demonstrated an interest in the area and can be equal in importance to the SHPO for consultation purposes.

• Other federal or state agencies with an interest in the project area (e.g., Depts. Of Transportation, National Park Service, U.S. Army Corps of Engineers, etc.).

• Local municipalities, especially those with historic preservation commissions overseeing local historic and conservation districts.

• Other interested parties, such as non-profit groups or foundations.

Types of Section 106 Agency or Tribal Responses

SHPOs and Tribes will likely respond in one of four ways depending on the type and amount of the information provided to their office:

• Request for additional information / studies: If the SHPO or Tribes do not have sufficient information, they may request more information, or that a professional architectural or archaeological field study be performed in the project area.

• No Historic Properties Present or Affected: in which case the project can proceed without any other consultation.

• No Adverse Effect: When a historic property is in the area but the undertaking is deemed to not be harmful, as long as the project scope remains the same.

• ADVERSE EFFECT: When a historic property is in the area and the proposed work is deemed to be harmful to its historic qualities. In this case, the applicant will have to adjust their design plans in order to obtain Section 106 compliance or the project may not be funded.

Standard Section 106 Referral ProcessIf involving an individual project or small number of locations, the standard approach is generally followed:

• The project proponent submits a request for Section 106 review to the SHPO, Native American Tribes and any other interested agency or party identified during the project consultation process.

• Each project is sent to the agencies separately and each is assessed as a unique undertaking.

The SHPO and Tribes legally have 30 days to respond from the date that they receive the request. • If any ask for additional information, they receive another 30 days after

that information is submitted back to them. This can be repeated many times if the review request is not put together properly or if architectural or archaeology field studies are requested.

• SHPO and Tribes can come to independent conclusions and impose different requirements for successfully concluding the Section 106 process.

• If an Adverse Effect is identified, consultation and a resolution must be made with each agency if the project is to proceed.

Programmatic Agreements

• When a large number of individual properties will be examined under a single extended program such as disaster recovery, a programmatic agreement is the preferred option for all parties.

• Creates a legal agreement between all of the agencies that expedites and standardizes the methods of the Section 106 referral process, as well as any study requirements and reporting procedures.

• Specifies what and where the areas of concern will be, what project activities need to be reported to the agencies, how they will be submitted and reviewed, and how adverse effects will be recognized and dealt with.

• Must be implemented at the beginning of the project to be effective. Normally takes about 3+ months to negotiate, depending on the number of agencies or Tribes involved and the complexity of the program.

Benefits of a Programmatic Agreement for large programs

• Creates a relationship between your program and each agency involved. They know about your program’s extent and purpose, communications flow easier through established points of contact and all parties know the established “ground rules” on how each project site will be evaluated.

• Can allow the project proponent to batch multiple properties together for SHPO, Tribal and other agency review instead of having separate 30-day response times that are applied at each stage of the process.

• Can define specific project activities where formal Section 106 review will not be required by the agencies beyond submitting simple records, or expedite review times for other activities by standardizing the way that submissions are made.

• Will specify how adverse effects are to be resolved or define mitigation measures that will be used to offset adverse effects that are already known to exist.

Example of Section 106 Review Procedures used in aDisaster Recovery Programmatic Agreement

• A qualified architectural historian initially evaluates all above-ground structures on the property using aerial imagery, GIS layers of historic districts, photographs, tax plat maps and recorded dates of construction.

• A qualified archaeologist also evaluates whether the project involves ground disturbance and is located within an area of high archaeological potential, as agreed beforehand by the parties during the P.A. negotiation.

• If the buildings are determined to not be of historic age or concern and no archaeological concern identified, P.A. excludes requirement of submitting to SHPO and Tribes. Section 106 review is concluded and application can proceed.

• If a historic building or archaeology concern is identified based on the criteria in the P.A., architectural historians and/or archaeologists conduct a field review, develop a brief summary report to SHPO and Tribes and a statement on how any adverse effect will be avoided or mitigated.

• Reports are batched together and are submitted to SHPO and Tribes, with a single 15 to 21-day review period for all of those properties and a simplified response form.

• Over 8,200 individual properties in 14 counties approved using this process.