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National Historic Preservation Act Section 106 Consultation (11-FD-a)

Information current as of 2020
Each lead federal agency (lead agency), must take into account the effects that a federal undertaking may have on historic properties through conducting consultations with necessary parties (consulting parties) and providing the Advisory Council on Historic Preservation (Council) a reasonable opportunity to comment on any such undertaking pursuant to Section 106 of the National Historic Preservation Act, 54 U.S.C. §§ 300101-307108 (NHPA). Consulting parties may include the following:
  • State Historic Preservation Officer (SHPO);
  • Tribal Historic Preservation Officer (THPO);
  • Indian tribes;
  • Native Hawaiian Organizations (NHOs);
  • Applicants for federal assistance, permits and licenses (developer); and
  • The public.

National Historic Preservation Act, 54 U.S.C. §§ 306108; 36 C.F.R. §§ 800.2, 800.3(c).

The lead agency must determine whether a federal action qualifies as an undertaking (e.g., a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a federal agency) that has the potential to affect historic properties. 36 C.F.R. § 800.3(a). An effect means an alteration to the characteristics of a historic property qualifying it for inclusion in or eligibility for the National Register. 36 C.F.R. § 800.16(i). If an undertaking may affect historic properties, the lead agency must initiate NHPA Section 106 consultation procedures. 36 C.F.R. § 800.3(a).

Important terms include:

  • A “lead federal agency” (lead agency) is an agency with a high degree of involvement or expertise in a project (e.g., it manages the land where a project takes place, provides a significant amount of financial assistance for a project, or has broad control over how a project may be designed), which may fulfill the NHPA Section 106 consultation requirements on behalf of itself and any other agencies involved in a federal undertaking. 36 C.F.R. §§ 800.2, 800.3(c).
  • A “federal undertaking” means a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a federal agency. Federal undertakings include projects that a federal agency carries out, assists, funds, permits, licenses, or approves. 36 C.F.R. § 800.16(y).
  • A “historic property” means any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in the National Register of Historic Places (National Register) maintained by the Secretary of the Department of the Interior (DOI). The term includes any artifacts, records or remains related to or located within historic properties and any properties of traditional religious and cultural important to Indian tribes or NHOs. 36 C.F.R. § 800.16(l)(1).
  • The “State Historic Preservation Officer” (SHPO) is a state official responsible for administering a state historic preservation program, cooperating, advising and assisting agencies, individuals and private organizations regarding NHPA Section 106 compliance and identifying and nominating eligible property to the National Register. National Historic Preservation Act, 54 U.S.C. § 302303(b).
  • The “Tribal Historic Preservation Officer” (THPO) means a tribal official appointed by a tribe’s chief governing authority or designated by a triable ordinance or preservation program who has assumed the responsibilities of an SHPO for purposes of NHPA Section 106 compliance on tribal lands. 36 C.F.R. § 800.16(w).
  • A “Native Hawaiian Organization” (NHO) means any organization which serves and represents the interests of Native Hawaiians (e.g., an individual who is a descendant of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the State of Hawaii) and has expertise in aspects of historic preservation that are significant to Native Hawaiians. 36 C.F.R. § 800.16(s)(1)-(2).



National Historic Preservation Act Section 106 Consultation Process


11-FD-a.1 – Designate Non-Federal Representative (Optional)

The lead agency may designate a non-federal representative (e.g., developer, consultant or other designee) to fulfill any NHPA Section 106 compliance responsibilities on their behalf including preparing information, analyses, recommendations and conducting consultations. 36 C.F.R. § 800.2(a)(3). A designated non-federal representative is often the developer of a project receiving funds or requiring the approval of the lead federal agency.

Note: A designated non-federal representative may fulfill responsibilities that would otherwise fall under the purview of the lead agency. Accordingly, references to responsibilities of lead agencies include designated non-federal representatives, if applicable.

11-FD-a.2 – Identify the Appropriate State Historic Preservation Officer (SHPO)

The lead agency must identify the appropriate State Historic Preservation Officer (SHPO) that must be included in the NHPA Section 106 consultation process. If more than one state is involved in an undertaking, the involved SHPOs may agree to designate a lead SHPO to act on their behalf. 36 C.F.R. § 800.3(c).

The SHPO reflects the interests of the state and its citizens in the preservation of their cultural heritage. Accordingly, SHPOs advise and assist lead agencies in carrying out their NHPA Section 106 compliance responsibilities and cooperates with lead agencies, local governments, organizations and individuals to ensure that historic properties are taken into consideration at all levels of project planning and development. 36 C.F.R. § 800.2(c)(1)(i).

11-FD-a.3 to 11-FD-a.4 – May an Undertaking Occur on or Affect Historic Properties on Tribal Lands?

The lead agency must determine whether an undertaking may occur on or affect historic properties on tribal lands and, if so, whether a Tribal Historic Preservation Officer (THPO) has assumed the duties of an SHPO on tribal lands. Tribal lands mean all lands within the exterior boundaries of any Indian reservation and all dependent Indian communities. 36 C.F.R. §§ 800.3(c)(1), 800.16(x).

If a THPO has assumed the responsibilities of a SHPO, the lead agency must conduct NHPA Section 106 consultation with the THPO in lieu of the SHPO. 36 C.F.R. § 800.3(c). The SHPO may participate as a consulting party if the undertaking takes place on tribal lands but affects historic properties off tribal lands. 36 C.F.R. § 800.2(c)(1)(ii).

If an Indian tribe has not assumed the responsibilities of an SHPO (e.g., there is no THPO) and the undertaking occurs on or may affect tribal lands, the lead agency must conduct NHPA Section 106 consultation with a representative designated by the Indian tribe in addition to and on the same basis as consultation with the SHPO. 36 C.F.R. §§ 800.3(c)(1), 800.16(x). Such Indian tribes have the same rights of consultation that THPOs are given. 36 C.F.R. § 800.2(c)(i)(B).

11-FD-a.5 to 11-FD-a.6 – May an Undertaking Affect Historic Property with Religious and Cultural Significance to Indian Tribes?

The NHPA requires that lead agencies consult with any Indian tribe or Native Hawaiian Organization (NHO) that attaches religious and cultural significance to historic properties that may be affected by an undertaking. This requirement applies regardless of the location of the historic property. Lead agencies should be aware that historic properties with religious and cultural significance to Indian tribes and NHOs are often located on ancestral, aboriginal, or ceded lands of Indian tribes and NHOs. The lead agency is responsible for making a reasonable and good faith effort to identify Indian tribes and NHOs that must be consulted with in the NHPA Section 106 process early in project planning. 36 C.F.R. § 800.2(c)(2)(ii).

The lead agency must ensure that the NHPA Section 106 consultation process provides Indian tribes and/or NHOs a reasonable opportunity to:

  • Identify their concerns about historic properties;
  • Advise on the identification and evaluation of historic properties, including those of traditional religious and cultural importance;
  • Articulate their views on the undertaking’s effects on such properties; and
  • Participate in the resolution of adverse effects. 36 C.F.R. § 800.2(c)(2)(ii)(A).

The Federal Government has a unique legal relationship with Indian tribes. NHPA Section 106 consultation with Indian tribes and NHOs should be conducted in a sensitive manner respectful of tribal sovereignty. 36 C.F.R. § 800.2(c)(2)(ii)(B).

For more information on NHPA Section 106 tribal consultation, see:

National Historic Preservation Act Section 106-Tribal Consultation:
11-FD-b

11-FD-a.7 – Identify Other Consulting Parties

In consultation with the SHPO and/or THPO, the lead agency should identify any other parties entitled to be consulting parties and invite them to participate. 36 C.F.R. § 800.3(f). Other consulting parties entitled to participate in the NHPA Section 106 process may include:

  • Representatives of local governments with jurisdiction over the area in which the effects of an undertaking may occur;
  • Applicants for federal assistance, permits, licenses, and other approvals (e.g., developer); and
  • Certain individuals and organizations with a demonstrated interest (e.g., legal or economic relationship to the undertaking or affected properties or concern with the undertakings effects on historic properties) in the undertaking. 36 C.F.R. §§ 800.2(c)(3)-(5), 800.3(f).

11-FD-a.8 – Draft Plan to Involve the Public

In consultation with the SHPO and/or THPO, the lead agency must draft a plan to involve the public in the NHPA Section 106 consultation process. The lead agency, SHPO and/or THPO must identify the appropriate times at which to seek public input and notify the public of proposed undertaking and its effects on historic properties. 36 C.F.R. § 800.3(e).

11-FD-a.9 – Identify Historic Properties that Could Be Affected by the Undertaking

The lead agency, in consultation with the SHPO and/or THPO, must gather information to determine if any properties in the area that may be affected by the undertaking are listed, or are eligible for listing, in the National Register. 36 C.F.R. § 800.4(a).

To determine the scope of its identification efforts, the lead agency must:

  • Determine and document the area of potential effects (e.g., the geographic area within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties);
  • Review existing information on historic properties within the area of potential effects, including any data concerning possible historic properties not yet identified;
  • Seek information, as appropriate, from consulting parties and other individuals and organizations likely to have knowledge of, or concerns with, historic properties in the area;
  • Identify issues relating to the undertaking’s potential effects on historic properties; and
  • Gather information from any Indian tribe or NHO to assist in identifying properties, including those located off tribal lands, which may of religious and cultural significance to them and be eligible for the National Register. 36 C.F.R. § 800.4(a).

The lead agency must make a reasonable and good faith effort to carry out the appropriate identification efforts, which may include background research, consultation, oral history interviews, sample field investigation, and field surveys. 36 C.F.R. § 800.4(b)(1).

11-FD-a.10 to 11-FD-a.11 – Are There Properties Within the Area of Potential Effects which may be Eligible for Listing in the National Register?

The lead agency, in consultation with the SHPO and/or THPO, must evaluate the historical significance of properties within the area of potential effects that were not evaluated in previous consultations for eligibility for listing in the National Register. 36 C.F.R. § 800.4(c). To determine eligibility for inclusion in the National Register, the lead agency must consider the following criteria, including whether the property:

  • Is associated with events that have made a significant contribution to the broad patterns of United States history;
  • Is associated with the lives of significant persons in the past;
  • Embodies the distinctive characteristics of a type, period, or method of construction, represents the work of a master, possesses high artistic values; or
  • May yield information important in history or prehistory.

National Park Service – National Register of Historic Places Frequently Asked Questions Webpage.

If the lead agency, SHPO and/or THPO agree that the property meets the criteria for inclusion for the National Register, then the property must be considered eligible for NHPA Section 106 consultation purposes. If the lead agency, SHPO and/or THPO determine that the property is not eligible for listing in the National Register, the property is not considered eligible for NHPA Section 106 consultation purposes. 36 C.F.R. § 800.4(c).

11-FD-a.12 to 11-FD-a.13 – Are Eligible or Listed Historic Properties Identified?

If the lead agency determines that there are no historic properties present, which could be affected by the undertaking, the lead agency must provide a finding that no historic properties are present within the area of potential effects (Finding of No Historic Properties Present Determination) and supporting documentation to the SHPO and/or THPO, any consulting parties (including Indian tribes and NHOs) and the public. 36 C.F.R. § 800.4(d)(1). The supporting documentation must include:

  • A description of the undertaking, specifying the federal involvement, and its area of potential effects, including photographs, maps, drawings, as necessary;
  • A description of the steps taken to identify historic properties, including as appropriate, efforts to seek information;
  • The basis for determining that no historic properties are present or affected. 36 C.F.R. § 800.11(d).

If the lead agency identifies at least one historic property, which could be affected by the undertaking, the lead agency must assess adverse effects, if any, on the property. 36 C.F.R. § 800.4(d)(2).

11-FD-a.14 – Review Finding of No Historic Properties Present Determination for Approval or Objection

The SHPO and/or THPO have 30 days from receipt of the finding and supporting documentation to review the Finding of No Historic Properties Present Determination and decide whether to approve of or object to the lead agency’s conclusions. 36 C.F.R. § 800.4(d)(1)(i).

11-FD-a.15 to 11-FD-a.20 – Is There an Objection to the Finding?

If the SHPO and/or THPO do not object to the Finding of No Historic Properties Present Determination within 30 days of receipt of the documentation, no further NHPA Section 106 consultation is required. 36 C.F.R. § 800.4(d)(1)(i).

If the SHPO and/or THPO object to the Finding of No Historic Properties Present Determination within 30 days of receipt of the documentation, the lead agency may initiate further consultation with the objecting party to resolve the disagreement. If no resolution is reached, the lead agency must submit a request to assess the lead agency’s Finding of No Historic Properties Present Determination to the Council. 36 C.F.R. § 800.4(d)(1)(i).

Note: If the SHPO and/or THPO object to the Finding of No Historic Properties Present Determination, the lead agency may submit a request to the Council to review the lead agency’s Finding of No Historic Properties Present Determination without initiating further consultation with the objecting party.

11-FD-a.21 – Notify Consulting Agencies and the Public of the Request

The lead agency must notify all consulting parties, including Indian tribes and NHOs, of the request to review the Finding of No Historic Properties Present Determination and make the document available to the public at the same time it submits the request to the Council. 36 C.F.R. § 800.4(d)(1)(ii).

11-FD-a.22 to 11-FD-a.25 – Evaluate Request to Review Finding of No Historic Properties Present Determination

The Council must evaluate the lead agency’s request to review the Finding of No Historic Properties Present Determination within 30 days of receipt of the request. If the Council does not respond within 30 days of receipt of the request, then no further NHPA Section 106 consultation is required. 36 C.F.R. § 800.4(d)(1)(iv).

The Council may respond to the lead agency’s Finding of No Historic Properties Present Determination by issuing an opinion on the undertaking (Undertaking Opinion) within 30 days of receipt of the request. 36 C.F.R. § 800.4(d)(1)(iv). The Council is likely to issue an Undertaking Opinion if it determines that an undertaking:

  • May have substantial impacts on important properties;
  • Presents important questions of policy or interpretation;
  • Has the potential to cause procedural problems or public controversy;
  • Presents issues of concern to Indian tribes or NHOs. 36 C.F.R. Appendix A.

11-FD-a.26 – Review Undertaking Opinion

The lead agency reviews the Undertaking Opinion prepared by the Council. The lead agency must take into account the Council’s Undertaking Opinion before the agency reaches a final decision regarding the undertaking. 36 C.F.R. § 800.4(d)(1)(iv)(B).

11-FD-a.27 to 11-FD-a.29 – Decision Summary

The lead agency must prepare a summary of its decision regarding the undertaking (Decision Summary), which contains the rationale for the decision and evidence of the Council’s Undertaking Opinion. After completing the Decision Summary, the lead agency may affirm the original Finding of No Historic Properties Present, conclude NHPA Section 106 consultation and proceed with the project. 36 C.F.R. § 800.4(d)(1)(iv)(C).

11-FD-a.30 – Assess Adverse Effects of Undertaking on Identified Historic Properties

If the lead agency identifies historic properties or properties that have religious and cultural significance to any Indian tribe and/or NHO within the area of potential effects, the lead agency, in consultation with the SHPO and/or THPO and consulting parties, must assess the adverse effects of the undertaking, if any, on all identified properties by applying the Criteria of Adverse Effect. 36 C.F.R. § 800.5(a).

Pursuant to the Criteria of Adverse Effect, a lead agency may make a finding that historic property is adversely affected if an undertaking:

  • May alter, directly or indirectly, any of the characteristics of a historic property that qualifies for inclusion in the National Register; and/or
  • Diminishes the integrity of a property’s location, design, setting, materials, workmanship, feeling, or association. 36 C.F.R. § 800.5(a)(1).

The lead agency must consider all qualifying characteristics of a historic property, including any characteristics identified after the original evaluation of the property’s eligibility for the National Register. Adverse effects may include reasonably foreseeable effects caused by the undertaking that may occur later in time or which are cumulative. 36 C.F.R. § 800.5(a)(1).

Some examples of adverse effects on historic properties include, but are not limited to:

  • Physical destruction of or damage to all or part of the property;
  • Alteration of a property including restoration, rehabilitation, repair, maintenance, stabilization, hazardous material remediation, and provision of handicapped access, which is not consistent with standards developed by the Secretary of the Department of the Interior;
  • Removal of property from its historic location;
  • Change of the character of the property’s use or of physical features within the property’s setting that contribute to its historic significance;
  • Introduction of visual, atmospheric, or audible elements that diminish the integrity of the property’s significant historic features;
  • Neglect of a property which causes its deterioration, except where such neglect and deterioration are recognized qualities of a property of religious and cultural significance to an Indian tribe or NHO; and
  • Transfer, lease, or sale of a property out of federal ownership or control without adequate and legally enforceable restrictions or conditions to ensure long-term preservation of the property’s historic significance. 36 C.F.R. § 800.5(a)(2).

11-FD-a.31 to 11-FD-a.32– Are Historic Properties Adversely Affected ?

If the lead agency determines that historic properties are adversely affected by the undertaking, the lead agency must continue consultation with the SHPO and/or THPO, Indian tribes and/or NHOs, and other consulting parties to resolve the adverse effects. 36 C.F.R. § 800.5(d)(2).

If the lead agency, in consultation with the SHPO and/or THPO determines that historic properties are not adversely affected by the undertaking, the lead agency drafts a Finding of No Adverse Effect. 36 C.F.R. § 800.5(b).

11-FD-a.33 – Notify Consulting Parties of Finding of No Adverse Effect

The lead agency notifies the SHPO and/or THPO and all consulting parties of the Finding of No Adverse Effect and provides them with the following supporting documentation:

  • A description of the undertaking, specifying the federal involvement, and its area of potential effects, including photographs, maps, and drawings, as necessary;
  • A description of the steps taken to identify historic properties;
  • A description of the affected historic properties, including information on the characteristics that qualify them for the National Register;
  • A description of the undertaking’s effects on historic properties;
  • An explanation of why the Criteria of Adverse Effect were found applicable or inapplicable, including any conditions or future actions to avoid, minimize or mitigate adverse effects; and
  • Copies or summaries of any views provided by consulting parties and the public. 36 C.F.R. § 800.11(e)(1)-(6).

11-FD-a.34 to 11-FD-a.36 – Review Finding of No Adverse Effect for Approval or Objection

The SHPO and/or THPO and consulting parties, including any Indian tribes and/or NHOs, must review the Finding of No Adverse Effect within 30 days of receipt for approval or objection. 36 C.F.R. § 800.5(c).

If the SHPO, THPO, Indian tribes and/or NHOs agree with the Proposed Finding of No Adverse Effect – or fail to object within 30 days – and no other consulting parties object, no further NHPA Section 106 consultation is required and the lead agency may proceed with the project. The lead agency must retain a record of the Finding of No Adverse Effect and provide information on the finding to the public on request. 36 C.F.R. § 800.5(c)(1).

11-FD-a.37 – Provide Notification of Objection

If the SHPO and/or THPO or any consulting party disagrees with the Proposed Finding of No Adverse Effect, they must notify the lead agency in writing of their objection and specify the reasons for the objection. 36 C.F.R. § 800.5(c)(2)(i).

11-FD-a.38 – Initiate Further Consultation with Objecting Party (Optional)

The lead agency may initiate further consultation with the objecting party to resolve the disagreement. 36 C.F.R. § 800.5(c)(2)(i).

11-FD-a.39 to 11-FD-a.41 – Is a Resolution Reached?

If a resolution is reached with the objecting party, the lead agency may continue with the project and no further NHPA Section 106 consultation is necessary. 36 C.F.R. § 800.5(c)(2)(i).

If no resolution is reached, the lead agency must submit a request to the Council to review the Finding of No Adverse Effect. 36 C.F.R. § 800.5(c)(2)(i).

11-FD-a.42 to 11-FD-a.45– Review Finding of No Adverse Effect for Response

The Council reviews the Finding of No Adverse Effect within 15 days of receipt of lead agency’s request. If the Council does not respond to the lead agency’s Finding of No Adverse Effect, then no further NHPA Section 106 consultation is required and the lead agency may proceed with the project. 36 C.F.R. § 800.5(c)(3)(i).

The Council may respond to the lead agency’s Finding of No Adverse Effect by issuing an opinion as to whether the lead agency correctly applied the Criteria of Adverse Effect (Adverse Effect Criteria Opinion) within 15 days of receipt of the Proposed Finding Review Request. 36 C.F.R. § 800.5(c)(3)(ii). The Council is likely to issue an Adverse Effect Criteria Opinion if it determines that an undertaking:

  • May have substantial impacts on important properties;
  • Presents important questions of policy or interpretation;
  • Has the potential to cause procedural problems or public controversy;
  • Presents issues of concern to Indian tribes or NHOs. 36 C.F.R. Appendix A.

11-FD-a.46 – Review Adverse Effect Criteria Opinion

The lead agency reviews the Adverse Effect Criteria Opinion prepared by the Council. The lead agency must take into account the Council’s Adverse Effect Criteria Opinion before the agency reaches a final decision regarding the undertaking. 36 C.F.R. § 800.5(c)(3)(ii)(A).

11-FD-a.47 – Summary of Decision

The lead agency drafts a Summary of Decision that contains the rationale for the lead agency’s decision regarding the Finding of No Adverse Effect and evidence of consideration of the Council’s Adverse Effect Criteria Opinion and provides it to the Council, SHPO and/or THPO and the consulting parties. 36 C.F.R. § 800.5(c)(3)(ii).

11-FD-a.48 to 11-FD-a.49 – Affirm Finding of No Adverse Effect

The lead agency may affirm the Finding of No Adverse Effect and continue with the project. No further NHPA Section 106 consultation is necessary. 36 C.F.R. § 800.5(c)(3)(ii).

The lead agency must maintain a record of the Finding of No Adverse Effect and provide it to the public upon request. If the lead agency fails to conduct the project as outlined in the Finding of No Adverse Effect, then the lead agency must reopen NHPA Section 106 consultation. 36 C.F.R. § 800.5(d)(1).

11-FD-a.50 – Continue Consultation to Resolve Adverse Effects

If the lead agency determines that the undertaking adversely affects historic properties, the lead agency, SHPO and/or THPO must continue consultation to resolve adverse effects through developing and evaluating alternatives or modifications to avoid, minimize, or mitigate adverse effects of the undertaking. 36 C.F.R. § 800.6(a).

11-FD-a.51 to 11-FD-a.52 – Invite Council to Participate in Consultation

The lead agency must invite the Council to participate in consultation by providing the Council with a Notification of Adverse Effects containing the following information:

  • A description of the undertaking, specifying the federal involvement, its area of potential effects, including photographs, maps, and drawings, as necessary;
  • A description of the steps taken to identify historic properties;
  • A description of the affected historic properties, including information on the characteristics that qualify them for the National Register;
  • A description of the undertaking’s effects on historic properties;
  • An explanation of why the criteria of adverse effect were found applicable, including any conditions or future actions to avoid, minimize or mitigate adverse effects; and
  • Copies or summaries of any views provided by consulting parties and the public. 36 C.F.R. §§ 800.6(a)(1), 800.11(e).

11-FD-a.53 – Review Notification of Adverse Effects

The Council reviews the lead agency’s Notification of Adverse Effects within 15 days and advises the lead agency and all consulting parties as to whether it will participate in the consultation. 36 C.F.R. § 800.6(a)(1)(iii).

11-FD-a.54 to 11-FD-a.55 – Does the Council Agree to Participate in the Consultation?

If the Council agrees to participate in the consultation, it must provide Written Notice of Participation to the lead agency and consulting parties that its decision to participate meets the following criteria:

  • The undertaking has substantial impacts on important historic properties;
  • The undertaking presents important questions of policy or interpretation;
  • The undertaking has the potential for presenting procedural problems; or
  • The undertaking presents issues of concern to Indian tribes or NHOs;

36 C.F.R. §§ 800.6(a)(1)(iii), Appendix A.

If the Council does not join consultation, the lead agency, SHPO and/or THPO, and other consulting parties must proceed with consultation. 36 C.F.R. § 800.6(a)(1)(iv).

11-FD-a.56 – Invite Consulting Parties

The lead agency, SHPO and/or THPO must invite all other consulting parties to join consultation. In addition, the lead agency, SHPO and/or THPO and the Council (if participating) may agree to invite other individuals or organizations that may assume a specific role or responsibility in the project. 36 C.F.R. § 800.6(a)(2).

11-FD-a.57 to 11-FD-a.58 – Provide Opportunity for Public to Comment on Adverse Effects

The lead agency must make information regarding the adverse effect of the undertaking on historic properties available to the public and provide an opportunity for the public to express their views on resolving adverse effects of the undertaking. 36 C.F.R. § 800.6(a)(4).

The views of the public are essential to informed federal decision-making in the NHPA Section 106 Consultation process. The lead agency must seek and consider the views of the public in a manner that reflects:

  • The nature and complexity of the undertaking and its effects on historic properties;
  • The likely interest of the public in the effects on historic properties;
  • Confidentiality concerns of private individuals and businesses; and
  • The relationship of the federal involvement to the undertaking. 36 C.F.R. § 800.2(d).

11-FD-a.59 – Conduct Consultation

The lead agency conducts consultation with the SHPO and/or THPO, Council (if participating) and other consulting parties to seek ways to avoid, minimize or mitigate adverse effects of the undertaking on historic properties. The lead agency must take the views of the public into account when considering and evaluating any measures to avoid or minimize the undertaking’s adverse effects. 36 C.F.R. § 800.6(b)-(c).

11-FD-a.60 to 11-FD-a.63 – Section 106 Agreement

If the lead agency, SHPO and/or THPO, Council (if participating) and other consulting parties agree on how the adverse effects of the undertaking may be resolved, they must execute a Section 106 agreement document that sets out the measures the lead federal agency must implement to avoid, minimize, or mitigate adverse effects. The Section 106 agreement may take the form of a Memorandum of Agreement or Programmatic Agreement.

A Memorandum of Agreement is appropriate for federal undertakings where adverse effects are understood. The Memorandum of Agreement must include:

  • Any substantive revisions or additions to the Notification of Adverse Effects originally provided to the Council;
  • A description and evaluation of any measures considered to avoid or minimize the undertaking’s adverse effects; and
  • A summary of the views of consulting parties and the public.

36 C.F.R. § 800.6(b)-(c).

A Programmatic Agreement is appropriate for complex federal undertakings in the following circumstances:

  • Effects to historic properties cannot be fully determined in advance;
  • Effects on historic properties are similar and repetitive or are multi-State or regional in scope;
  • When nonfederal parties are delegated major decision-making responsibilities;
  • Where routine management activities are undertaken at federal installations, facilities, or other land -management units; or
  • To tailor the standard Section 106 process to better fit in with agency management or decision making.

36 C.F.R. § 800.14(b)(1).

The Section 106 agreement evidences the lead agency’s compliance with NHPA Section 106 consultation procedures and governs the undertaking. The lead agency must ensure that the undertaking is carried out in accordance with the Section 106 agreement. After the Section 106 agreement is executed, the project may continue and NHPA Section 106 consultation concludes. 36 C.F.R. § 800.6(b)-(c).

If the lead agency, SHPO and/or THPO, Council (if participating) and other consulting parties cannot reach a resolution of the adverse effects of the undertaking, they may terminate consultation. 36 C.F.R. § 800.7(a).

11-FD-a.64 – Notify Consulting Parties of Termination of Consultation

Any party that terminates consultation must notify the other consulting parties and provide them the reasons for the termination in writing. 36 C.F.R. § 800.7(a).

11-FD-a.65 – Request Council Comments

After termination of consultation, the lead agency, SHPO and/or THPO must request that the Council provide advisory comments on the undertaking. 36 C.F.R. § 800.7(a)(1).

11-FD-a.66 – Provide Comments

The Council provides comments on the undertaking to the lead agency within 45 days of receipt of the request to comment. 36 C.F.R. § 800.7(c).

11-FD-a.67 – Summary of Decision

The lead agency must draft a Summary of Decision, which takes into account the Council’s comments. The Summary of Decision must contain the rationale for the lead agency’s decision and evidence of consideration of the Council’s comments. 36 C.F.R. § 800.7(c)(4).

11-FD-a.68 – Distribute Summary of Decision

The lead agency must provide the Summary of Decision to all consulting parties and make the Summary of Decision available for public inspection. After the lead agency provides the Summary of Decision to all consulting parties and the public, NHPA Section 106 consultation concludes and the project may go forward. 36 C.F.R. § 800.7(c)(4).

The lead agency must conduct the undertaking as determine by the Summary of Decision. If the lead agency does not conduct the undertaking as determined by the Summary of Decision, the NHPA Section 106 consultation may be reopened. 36 C.F.R. § 800.7(c)(4).


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