National Historic Preservation Act Section 106 - Assessment of Adverse Effects (11-FD-c)
National Historic Preservation Act Section 106 - Assessment of Adverse Effects Process
11-FD-c.1 - Apply Criteria of Adverse Effect
Adverse effects occur when an undertaking may directly or indirectly alter characteristics of a historic property that qualify it for inclusion in the National Register in a manner that would diminish the integrity of the property's location, design, setting, materials, workmanship, feeling, or association. Reasonably foreseeable effects caused by the undertaking that may occur later in time, are farther removed in distance, or are cumulative also need to be considered. See 36 CFR 800.5(a)(1).
Examples of adverse effects include:
- Physical destruction or damage;
- Alteration not consistent with the Secretary of the Interior's Standards;
- Relocation of a property;
- Change of use or physical features of a property's setting;
- Visual, atmospheric, or audible intrusions;
- Neglect resulting in deterioration; or
- Transfer, lease, or sale of a property out of Federal ownership or control without adequate protections.
See 36 CFR 800.5(a)(2).
If a property is restored, rehabilitated, repaired, maintained, stabilized, remediated or otherwise changed in accordance with the Secretary's Standards, then it will not be considered an adverse effect (assuming that the SHPO/THPO agrees). See 36 CFR 800.5(b). Where properties of religious and cultural significance to Indian tribes or Native Hawaiian organizations are involved, neglect and deterioration may be recognized as qualities of those properties and thus may not necessarily constitute an adverse effect.
If a property is transferred, leased, or sold out of Federal ownership with proper preservation restrictions, then it will not be considered an adverse effect as per past regulations. Transfer between Federal agencies is not an adverse effect per se; the purpose of the transfer should be evaluated for potential adverse effects, so that they can be considered before the transfer takes place.
Alteration or destruction of an archaeological site is an adverse effect, whether or not recovery of archaeological data from the site is proposed. The ACHP has issued guidance to help agencies and others reach agreement on the treatment of such properties.
11-FD-c.2 – Has the Undertaking Agency Proposed a Finding of No Adverse Effect?
If the proposed undertaking does not meet the criteria of adverse effect, the undertaking agency should propose a finding of no adverse effect.
Agencies must retain records of their findings of no adverse effect and make them available to the public. The public should be given access to the information upon request, consistent with the confidentiality requirements found in 36 CFR 800.11(c). Implementation of the undertaking in accordance with the finding of no adverse effect, as documented, fulfills the agency official's responsibilities under Section 106. See 36 CFR 800.5(d)(1).
After the undertaking agency proposes a finding of no adverse effect, it must notify all consulting parties (including the SHPO/THPO) and provide them with documentation that must include:
- 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.
See 36 CFR 800.11(e).
11-FD-c.3 - Initiate Section 106 Resolution of Adverse Effects
11-FD-c.4 to 11-FD-c.5 – Have any Consulting Parties Objected?
Section 106 of the (NHPA) requires federal agencies to take into account the effects of their undertaking on historic properties. The Advisory Council on Historic Preservation (ACHP) regulations interpret Section 106 to require an assessment by federal agencies of the potential for adverse effects when it finds that historic properties may be affected. See 36 CFR 800.5. The agency must notify all consulting parties and invite their views when making the assessment.
11-FD-c.6 to 11-FD-c.10 – Can the Disagreement be Resolved through Consultation?
If the SHPO/THPO or consulting party disagrees with the finding of no adverse effect, it must notify the undertaking agency. The undertaking agency must then either consult with the party to resolve the disagreement or request that the ACHP review the finding. If, after consultation, the parties agree that a finding of no adverse effect should be issued, the undertaking agency’s official must maintain a record of the finding and provide information on the finding to the public on request, consistent with the confidentiality provisions of 36 CFR 800.11(c). 36 CFR 800.5.
If the parties agree that there are adverse effects, the undertaking agency commences consultation to resolve the effects in accordance with 36 CFR 800.6. If an agreement cannot be reached, the undertaking agency submits its finding to the ACHP for review. The ACHP may also object to the finding and issue a written opinion within 30 days under certain circumstances. See 36 CFR 800.5(c)(2)(i)-(ii).
11-FD-c.11 to 11-FD-c.14 – Submit Findings to the ACHP; Issue Summary of Final Decision to Consulting Parties
The ACHP may review findings that are submitted by the undertaking agency and issue an opinion that addresses whether the adverse effects criteria have been correctly applied. The ACHP will review the finding if it deems it appropriate based on the criteria listed in 36 CFR 800, Appendix A (circumstances warranting ACHP involvement). If the ACHP does not respond to the request within the applicable time period, the undertaking agency’s obligations under Section 106 are fulfilled. See 36 CFR 800.5(c)(3)(i).
If the ACHP issues an opinion, the undertaking agency must take that opinion into account when finalizing its decision regarding the finding of no adverse effect, but the ACHP opinion does not dictate the undertaking agency’s decision. After the opinion has been issued, the undertaking agency must prepare a summary of its final decision. The summary should include rationale for its decision and evidence that it considered the ACHP’s opinion. The summary must be provided to the ACHP, the SHPO/THPO, and the consulting parties. If the summary confirms the undertaking agency’s initial finding of no adverse effect, the undertaking agency’s Section 106 obligations are complete. See 36 CFR 800.5(c)(3)(ii).
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