National Historic Preservation Act Section 106 - Resource Survey (11-FD-a)
The responsible federal agency must consult with appropriate state and local officials, Indian tribes, applicants for federal assistance, and members of the public and consider their views and concerns about historic preservation issues when making final project decisions. The process begins with an identification of historic properties within the affected area. Once the agency identifies the historic properties, it must determine whether the proposed federal undertaking will have any effect on those properties.
National Historic Preservation Act Section 106 - Resource Survey Process
11-FD-a.1 – Request Designation as Non-Federal Representative & Consider Drafting a Historical Properties Management Plan (HPMP) (If Applicable)
The Federal Energy Regulatory Commission (FERC) encourages developers, if appropriate, to request designation as the Commission’s non-federal representative. FERC Handbook for Hydroelectric Project Licensing and 5 MW Exemptions from Licensing, p. 3-1. The non-federal representative is designated for consulting purposes pursuant to Section 106. See also 36 C.F.R. § 800.2(c)(4). The developer should request designation at the time of filing the notice of intent (NOI) and pre-application document (PAD).
In addition, FERC recommends that developers draft a Historic Properties Management Plan (HPMP) to avoid or mitigate the adverse effects the proposed project may have on historic properties. A HPMP is a plan, implemented pursuant to a FERC license, for considering and managing effects on historic properties of activities associated with constructing, operating, and maintaining hydropower projects. Guidelines for the Development of Historic Properties Management Plans for FERC Hydroelectric Projects.
At the time of filing the NOI and PAD, the developer should consider drafting a HPMP. If the developer decides to draft a pre-filing HPMP, they should start by identifying the project staff position (such as a Cultural Resources Liaison, project operator, plant operator, etc.) responsible for implementing the plan over the course of the license. Guidelines for the Development of Historic Properties Management Plans for FERC Hydroelectric Projects.
11-FD-a.2- Hold Kickoff Meeting & Draft HPMP (Optional)
The federal agency has the responsibility to identify the appropriate State Historic Preservation Officer (SHPO) and/or appropriate Tribal Historic Preservation Officer (THPO) for consultation. See 36 C.F.R. § 800.3(c). If the undertaking affects historic properties on tribal lands, then the agency must determine what tribe is involved. If the relevant tribe has instituted a THPO under Section 101(d)(2) and assumed the SHPO's Section 106 responsibilities of the NHPA, the agency must consult with such THPO in lieu of the SHPO. See 36 C.F.R. § 800.3(c)(1). Certain property owners on tribal lands can request SHPO involvement, even when 36 C.F.R. § 800.3(c)(1) requires consultations with a THPO. If the relevant tribe has not assumed responsibilities for Section 106 under Section 101(d)(2) of the NHPA, the agency must consult with the tribe in addition to consulting with the appropriate SHPO. See 36 C.F.R. § 800.3(d).Other related points include:
- A group of SHPOs may agree to designate a lead SHPO to act on their behalf for a specific undertaking (36 C.F.R. § 800.3(c)(2));
- The manner of consultation may vary depending on the agency's planning process, the nature of the undertaking, and the nature of its effects (36 C.F.R. § 800.3(c)(3));
- Failure of a SHPO/THPO to respond within the timeframes set by the regulation permit the agency to assume concurrence with the finding or to consult about the finding or determination with ACHP in the SHPO/THPO's absence. Subsequent involvement by the SHPO/THPO is not precluded, but the SHPO/THPO cannot reopen a finding or determination that it failed to respond to earlier (36 C.F.R. § 800.3(c)(4));
- For undertakings occurring, or affecting historic properties, on tribal lands, the Section 106 process may be completed even when the SHPO has decided not to participate in the process ( 36 C.F.R. § 800.3(d)); and
- A SHPO and a THPO may develop tailored agreements for SHPO participation in reviewing undertakings on the tribe's lands (36 C.F.R. § 800.3(d)).
There should also be a plan put in place to include the public. Depending on the scale of the project, a formal plan to involve the public may be prudent. See 36 C.F.R. § 800.3(e). Under 36 C.F.R. § 800.2(d)(3), public involvement under the section 106 process may be combined with the National Environmental Policy Act public review process.
The kickoff meeting can also be an opportunity to identify additional consulting parties. Local governments, Indian tribes and Native Hawaiian organizations and applicants for Federal assistance or permits may be appropriate for including in consultation. If the Agency Official authorizes an applicant or group of applicants for Federal assistance or permits, they must notify the SHPO/THPO. 36 C.F.R. § 800.2(c)(4).
At the beginning stages of the identification process, the Agency Official must consult with the SHPO/THPO on the scope of its identification efforts and in fulfilling Section 106 consultation requirements. These steps include:
- Determining and documenting the area of potential effects (APE);
- Reviewing existing information about historic properties;
- Seeking information from parties likely to have knowledge of or concerns about the area; and
- Gathering information from Indian tribes and Native Hawaiian organizations about properties to which they attach religious and cultural significance, while remaining sensitive to any concerns they may have about the confidentiality of this information.
See 36 C.F.R. § 800.4(a).
The Agency Official should consult with the SHPO/THPO at all steps in the scoping process. After consulting the SHPO/THPO, the Agency Official determines the Area of Potential Effects (APE). See 36 C.F.R. § 800.4(b). Where federal agencies are engaged in an action that is on or may affect ancestral, aboriginal or ceded lands, federal agencies must gather information from Indian tribes and Native Hawaiian organizations regarding properties that may be of traditional religious and cultural significance to them, and that may be eligible for the National Register, on such lands.
In addition, if the developer decides to draft a HPMP, they should begin consulting with affected Indian tribes and other stakeholders as part of the plan to mitigate harm to archaeological and cultural sites near the proposed project. 18 C.F.R. § 5.18 (b)(3)(v); see also 18 CFR 5.16(d). FERC recommends that developers begin drafting the HPMP as early as possible and submit it at the time they file a license application with FERC. 18 C.F.R. § 5.18 (b)(3)(v); see also 18 C.F.R. § 5.16(d); 36 C.F.R. § 800.2(c)(4). Drafting the HPMP during the pre-filing stage allows FERC staff to freely consult with the developer and other stakeholders without violating FERC’s rules concerning off-the-record communications. HPMP Guidelines.
A HPMP establishes a decision-making process for considering potential effects on historic properties. The HPMP should consider and manage the effects on historic properties of actions taken to implement the license over its entire term. The HPMP Guidelines outline additional factors that the developer should consider when developing a HPMP. Refer to section 11-FD-d for more information.
11-FD-a.3 - Define Area of Potential Effects (APE)
An APE is the geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist. Influenced by the scale and nature of an undertaking, an APE may be different for diverse kinds of effects caused by the undertaking. See 36 C.F.R. § 800.16(d).
11-FD-a.4 - Initiate Tribal Consultation
36 C.F.R. § 800.2(c)(2)(ii)(B) states that "the Federal Government has a unique legal relationship with Indian tribes set forth in the Constitution of the United States, treaties, statutes and court decisions. Consultation with Indian tribes should be conducted in a sensitive manner respectful of tribal sovereignty."
In addition to the requirements for identifying historic properties on tribal lands, 36 C.F.R. § 800.4(a)(4) requires the agency to gather information from tribes. The Agency Official uses this information to identify properties with religious and cultural significance that may be eligible for the National Register, even if the property is not located on tribal lands.
11-FD-a.5 - Perform Records/ Literature Search for Cultural Resource Surveys in Project Area
The Agency Official may reference several sources in determining potentially affected cultural resources. Often historic maps, landmarks registers, inventories, offices of historic preservation and the National Register of Historic Places are examined.
11-FD-a.6 to 11-FD-a.7 - Conduct Appropriate Cultural Resource Survey; Cultural Survey Report, Including Eligibility Recommendations
36 C.F.R. § 800.4(b) requires the agency, in consultation with the SHPO/THPO, to identify historic properties within the APE. This includes both identifying historic properties on the National Register and historic properties that are eligible for the National Register. In order to determine whether a historic property is eligible, the agency must determine its historic significance using the National Register criteria found in 36 C.F.R. § 63. See 36 C.F.R. § 800.4(c). If the property meets the National Register criteria it is eligible for the National Register for section 106 purposes and potential effects on the property from the undertaking must be considered. See 36 C.F.R. § 800.4(c)(2).
The criteria applied to evaluate properties, listed below, do not include areas of the National Park System and National Historic Landmarks.. The regulations define the criteria broadly to include a wide diversity of resources. The following criteria, found in 36 C.F.R. § 60.4, are used to evaluate properties for nomination to the National Register, by the National Park Service in reviewing nominations, and for evaluating National Register eligibility of properties.
Guidance in applying the criteria is further discussed in the "How To" publications, Standards and Guidelines sheets, and opinions of the Keeper of the National Register. Such materials are available upon request from National Register of Historic Places Publications.
Criteria for evaluation:
The quality of significance in American history, architecture, archaeology, engineering, and culture is present in districts, sites, buildings, structures, and objects that possess integrity of location, design, setting, materials, workmanship, feeling, and association and that
- are associated with events that have made a significant contribution to the broad patterns of our history; or
- are associated with the lives of persons significant in our past; or
- embody distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or
- have yielded, or may be likely to yield, information important in prehistory or history.
Criteria considerations: Ordinarily cemeteries, birthplaces, or graves of historical figures, properties owned by religious institutions or used for religious purposes, structures moved from their original locations, reconstructed historic buildings, properties primarily commemorative in nature, and properties that have achieved significance within the past 50 years shall not be considered eligible for the National Register. However, such properties will qualify if they are integral parts of districts that do meet the criteria or if they fall within the following categories:
- A religious property deriving primary significance from architectural or artistic distinction or historical importance;
- A building or structure removed from its original location, but which is significant primarily for architectural value, or which is the surviving structure most importantly associated with a historic person or event;
- A birthplace or grave of a historical figure of outstanding importance if there is no appropriate site or building directly associated with his productive life;
- A cemetery that derives its primary significance from graves of persons of transcendent importance, from age, from distinctive design features, or from association with historic events;
- A reconstructed building when accurately executed in a suitable environment and presented in a dignified manner as part of a restoration master plan, and when no other building or structure with the same association has survived;
- A property primarily commemorative in intent if design, age, tradition, or symbolic value has invested it with its own exceptional significance; or
- A property achieving significance within the past 50 years if it is of exceptional importance.
If there is disagreement between the agency and the SHPO/THPO over eligibility, or if the ACHP or Secretary of Interior so requests, the agency must refer the matter to the Keeper of the National Register. If an Indian tribe or Native Hawaiian organization disagrees with a determination of eligibility involving a property to which it attaches religious and cultural significance, then the tribe can ask ACHP to request that the Agency Official obtain a determination of eligibility. The intention is to provide a way to ensure appropriate determinations regarding properties located off tribal lands to which tribes attach religious and cultural significance. See 36 C.F.R. § 800.4(c)(2); 36 C.F.R. § 63.4.
36 C.F.R. § 800.4(b)(1) requires agencies to make a “reasonable and good faith effort” to identify historic properties. The identification efforts may include “background research, consultation, oral history interviews, sample field investigation, and field surveys.” In addition, the agency should take into account:
- Past planning, research, and studies;
- The magnitude and nature of the undertaking;
- The degree of Federal involvement;
- The nature and extent of effects on historic properties; and
- The likely nature and location of historic properties within the area of potential effects
In addition, the Secretary of the Interior’s standards and guidelines for identification provide guidance on this subject. See Cultural Resource Survey Standards and Guidelines. For more information regarding the reasonable and good faith effort requirements, see "reasonable and good faith effort" to identify historic properties.
Typically, an applicant retains an archaeologist to complete the cultural resource survey. Under 36 C.F.R. § 800.2(a)(3), an Agency Official may use the services of applicants, consultants or designees to prepare information, analyses and recommendations under the CFR.
Phased identification may take place when alternatives under consideration consist of corridors or large land areas, or where access to properties is restricted. The Agency may defer final identification and evaluation by agreement with the SHPO/THPO or other circumstances. Under this approach, Agency Officials are required to follow up with full identification and evaluation once project alternatives are refined or access to the property become unrestricted. Any further deferral of final identification would complicate the process and jeopardize an adequate assessment of effects and resolution of adverse effects. See 36 C.F.R. § 800.4(b)(2)
11-FD-a.8 - Determine Whether Historic Properties May Be Affected
The Agency Official must provide appropriate documentation to the SHPO/THPO and notify the consulting parties if there are no historic properties or historic effects on the properties identified. The federal agency must place its documentation in a public file prior to approving the undertaking, and provide access to the information when requested by the public. See 36 C.F.R. § 800.4(d).
Once the SHPO/THPO receives the adequate documentation, the SHPO/THPO has 30 days to object to the determination. The ACHP may also object and provide its own opinion, within 30 days, if the ACHP meets the criteria in Appendix A to 36 C.F.R. § 800. If the ACHP does not object within 30 days, the agency has completed its Section 106 responsibilities. See 36 C.F.R. § 800.4(d)(1)(i).
If the SHPO/THPO or ACHP objects to the federal agency’s determination that no historic properties will be affected, the federal agency must either resolve the disagreement or forward the finding, along with supporting documentation, to the ACHP. The ACHP must then review the findings within 30 days and issue an opinion, which the agency must respond to and consider when making its final decision. The agency has fulfilled its obligations under section 106, if the ACHP does not respond within 30 days. See 36 C.F.R. §§ 800.4(d)(1)(ii)-(iv). If the ACHP issues an opinion, the agency must consider that opinion when making its final decision. The agency must then prepare a summary of its decision and provide it to the ACHP, the SHPO/THPO and consulting parties.
11-FD-a.9 to 11-FD-a.12 - Is Additional Subsurface Work Required to Assess Eligible Resources?
Additional subsurface work may be needed if the agency decides to revise its decision after an objection from the SHPO/THPO or an opinion from the ACHP. An independent archaeologist may need to prepare a design/work plan. The applicable entity should follow this plan during additional studies. Once the studies are completed, the agency attaches the supplemental information to the cultural resource survey and forwards the document to the SHPO.
11-FD-a.13 - Are There Any Potential Effects on Historic Properties?
As stated above, if the agency does not identify eligible historic properties the project may continue without further section 106 analyses. If the agency finds that historic properties may be affected, it must proceed with an assessment of adverse effects.
11-FD-a.14 - Conduct Section 106 Assessment of Adverse Effects
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