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Section 106 Review Process
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The Section 106 review process is a consultive process that must be completed prior to the initiation of demolition, construction, and ground disturbing activities.
Federal agencies often look to those applying for grants, loans, licenses, or permits to initiate the consultation with the SHPO. Under the Council's current 36 C.F.R. Part 800 regulations which took effect August 5, 2004, the federal agency may authorize the applicant or consultants to gather information on properties that might be affected by the undertaking and to exchange information with the SHPO. According to the Council, the authorization should be communicated to the SHPO in writing or by e-mail. However, the regulations state that the federal agency is to make findings regarding the existence of historic properties within the undertaking's area of potential effects (APE) and regarding the undertaking's effects on them. APE is defined as: The geographic area or areas within which an undertaking may cause changes in the use or character of historic properties, if any such properties exist and includes effects that are direct or indirect, cumulative, later in time, or at a distance
The DHPA staff, upon request, will advise federal agencies or their applicants or consultants on the kinds of information that should be submitted to begin the review of a particular project. During the course of the review, the DHPA staff also will share pertinent information in its possession about the significance of properties within the APE. The federal agencies also are obligated under the regulations to gather information and then, in addition, to make findings based on that information. The DHPA staff is not authorized to perform the agencies' responsibilities for them. Rather, the DHPA's role, as the staff to the SHPO, is to comment on whether potentially historic properties will be affected, how they may be affected, and how any adverse effects on historic properties may be avoided, reduced, or mitigated. Adverse effects that cannot be avoided often are mitigated through stipulations included in a formal document called a memorandum of agreement.
Although the kinds of information about an undertaking and about properties within the APE that are critical to the Section 106 review will vary based on the circumstances, the federal agency (or its applicant or consultant) typically should provide the following kinds of information to the SHPO as early in the review process as possible:
Depending on whether or not there is the potential for archaeological sites at the undertaking location, it may also be necessary to have a qualified, professional archaeologist conduct and report on a field investigation of sites. However, it is usually better to wait until the SHPO has requested an archaeological field investigation before contracting to have that service performed.
Similarly, if an existing building or structure will be altered, or a new one constructed, it may be necessary to provide the SHPO with plans and specifications, or at least a detailed work write-up, to enable the SHPO to comment on the possible effects of the undertaking. However, it is usually better to wait until the SHPO requests such materials before submitting them for review.
Please keep in mind the Section 106 review must be completed prior to the initiation of demolition, construction, and ground disturbing activities. If the DHPA are not given reasonable opportunity to comment on the project, or to develop and evaluate alternatives or modifications to the project that could avoid, minimize or mitigate adverse effects on historic properties, the federal agency will most likely need to notify the Advisory Council on Historic Preservation of the situation and invite them to participate in consultation.