Section 106 of the National Historic Preservation Act (NHPA) requires Federal agencies, including NEH, to consider the effects of Federally funded projects on historic properties and to afford the Advisory Council on Historic Preservation (ACHP) an opportunity to comment on such projects prior to the expenditure of any Federal funds.
What kinds of projects require Section 106 review, and how is an applicant who has been awarded or offered an NEH grant affected by Section 106?
Section 106 covers a broad range of projects, including construction, renovation, repair, or rehabilitation; ground disturbances; and changes to an area’s visual characteristics. NEH bears ultimate responsibility for ensuring that it meets all of its Section 106 requirements. However, NEH cannot meet its obligations without the full cooperation and assistance of NEH awardees or offers. Further, NEH cannot release grant funds until it completes its Section 106 obligations.
An historic property is any property that is included in, or eligible for inclusion in, the National Register of Historic Places (National Register). National Register-listed or -eligible properties fall into five broad categories:
- Buildings: constructions designed principally to shelter human activity, including houses, barns, commercial buildings, government buildings, etc.
- Structures: functional constructions not principally designed for human shelter, including bridges, canals, lighthouses, dams, boats, aircrafts, etc.
- Sites: Locations of significant events, or prehistoric or historic occupation or activity, including ceremonial sites, battlefields, shipwrecks, trails, designed landscapes, archaeological remains of habitation sites, natural features having cultural significance, etc.
- Objects: Constructions that are relatively small in scale, frequently artistic in nature, and associated with a specific setting or environment. They are not museum objects, but include sculptures, monuments, fountains, boundary markers, etc.
- Districts: A concentration or continuity of sites, buildings, structures, or objects that are united by their history or aesthetics. The identity of a district results from the interrelationship of its resources. Frequently encountered districts include residential areas, commercial areas, transportation networks, large farms, rural villages, groupings of habitation sites or ceremonial sites.
Historic properties also include artifacts, records, and remains related to and located within such properties, and properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization.
The ACHP is an independent Federal agency that promotes historic preservation, oversees the operation of the Section 106 process, and advises the President and Congress on historic preservation policy. Occasionally, the ACHP participates in the Section 106 review of an NEH project. For example, the ACHP may participate if NEH has made an adverse effect finding or if other parties involved in the Section 106 review of a project have requested ACHP guidance.
Who else participates when NEH reviews a project under Section 106 and what are their responsibilities?
NEH: Leads the Section 106 review process.
- NEH Federal Preservation Officer (FPO): Coordinates Section 106 reviews at NEH, and responds to general inquiries about Section 106 from applicants, award recipients, and the public.
- NEH Program Office/Division: Serves as the office primarily responsible for ensuring that NEH meets its Section 106 responsibilities.
- NEH General Counsel’s office: Assists the FPO and Program Offices/ Divisions with fulfilling NEH’s legal obligations under Section 106.
- Awardee/Offeree: Assists NEH with its Section 106 review by providing the agency with the materials necessary for its review, including SHPO/THPO decision letters, background research on historic properties, project plans and specifications, field investigations and/or surveys, etc. Also, as necessary, prepares studies and analyses, and coordinates public involvement in the Section 106 review of its project.
- SHPO/THPO: The State Historic Preservation Officer (SHPO) or Tribal Historic Preservation Officer (THPO) advises and assists NEH with carrying out its Section 106 obligations, including identifying historic properties, assessing and resolving adverse effects, and reviewing project design plans.
- Indian tribes and Native Hawaiian organizations: If participating, works with NEH to identify historic properties, assess adverse effects to historic properties, and resolve adverse effects.
- Representatives of local governments and other consulting parties: If participating, comments on the identification of historic properties, effects to historic properties, and ways to mitigate or avoid adverse effects.
- Public: Comments on the identification of historic properties, effects to historic properties, and ways to mitigate or avoid adverse effects.
The Section 106 regulations require Federal agencies to seek and consider the public’s views at every stage of the review process. However, agencies have discretion in how they notify the public of their proposed actions and how they seek public comment. Because proposed projects vary in scope and size, NEH’s plans for involving the public may be different for each Section 106 review. In most cases, NEH will ask awardees or offers to post public notices about their projects through appropriate media (e.g., newspapers, local post offices and libraries, applicant’s website, etc.,). The comment period generally lasts thirty (30) days.
First, NEH determines whether Section 106 covers the proposed project. If so, then NEH identifies the Area of Potential Effects (APE), which is the geographic area/s within which a project may directly or indirectly affect historic properties, and any historic properties in the APE. NEH also consults with the awardee or offeree, the SHPO/THPO, other consulting parties, and the public, as necessary, when making these identifications. If there are no historic properties, then NEH refrains from further Section 106 review of the project.
However, if there are historic properties, then NEH, in consultation with the consulting parties and the public, assesses whether the project will adversely affect historic properties. If the project will not adversely affect historic properties, then NEH refrains from further Section 106 review of the project. On the other hand, if there will be adverse effects to historic properties, then NEH, in consultation with the consulting parties and the public, explores ways to avoid or mitigate adverse effects to historic properties. If necessary, NEH may also reach out to the ACHP to participate in the agency’s Section 106 review. Finally, if NEH and the SHPO/THPO agree on how to resolve adverse effects, then they will execute a memorandum of agreement.
For further details on the Section 106 review process, you may wish to consult the Section 106 regulations, 36 C.F.R. Part 800.
An adverse effect occurs when a project may directly or indirectly diminish the integrity of an historic property by altering any of the characteristics that qualify that property for National Register inclusion. Specifically, if the project diminishes the integrity of a property’s location, design, setting, materials, workmanship, feeling, and association, then there is an adverse effect. Examples of adverse effects include:
- Physical destruction or damage;
- Alteration inconsistent with the Secretary of the Interior's Standards for the Treatment of Historic Properties;
- Relocation of the property;
- Change in the character of the property's use or setting;
- Introduction of incompatible visual, atmospheric, or audible elements;
- Neglect and deterioration;
- Transfer, lease, or sale out of federal control without adequate preservation restrictions
Yes. Although NEH does not formally initiate Section 106 review until it decides to fund a project, there are many steps that an applicant should take prior to submitting an application to ensure that Section 106 review of its project moves along smoothly and efficiently.
If your institution requests NEH funds to support ground disturbances, changes to an area’s visual characteristics, or any construction, renovation, repair, or rehabilitation of a building, then you should take the following measures:
- Contact your SHPO and/or THPO (if the project will take place on tribal land) about the proposed project. Once you have initiated contact, provide the NEH FPO (FPO@neh.gov) with the name and contact information of the person in the SHPO/THPO office who will be assisting NEH with its review.
Request a written decision from the SHPO/THPO on the following:
- Whether there are any known National Register –listed or –eligible properties that are in or near the project site, and whether there are any other National Register-eligible properties.
- If there are historic properties, comments on the effects of the NEH-funded project on historic properties; and
- If effects are adverse, comments on ways to avoid, minimize, or mitigate adverse effects.
If applicable, submit an archaeological survey for the APE to NEH.
Note for Challenge Grant applicant: If the applicant does not include the survey with its application and later receives a challenge grant offer, NEH’s Section 106 review of the offeree’s project will be delayed until the offeree has submitted the survey.
- Submit a list containing the names of all consulting parties and their contact information, including titles, mailing addresses, and email addresses. Consulting parties include Federally-recognized tribes, Native Hawaiian organizations, state and local governments, and individuals and organizations with a legal or economic relationship to a project or property (e.g. historic societies or commissions).
Are there any materials I should submit to the SHPO/THPO when I ask for the written decision on the eligibility of historic properties, effects to historic properties, and ways to avoid or mitigate adverse effects?
Yes. To facilitate this determination, you should provide the SHPO/THPO the following materials:
- A written description of the applicant’s project. The description should include the proposed use(s) for the property and the scope of the proposed construction, renovation, repair, rehabilitation, or ground or visual disturbance;
- A map, photograph, or drawing clearly demarcating the project’s Area of Potential Effects (APE). The APE is the geographic area(s) within which a project may directly or indirectly affect historic properties. To determine the APE, applicants should consider all locations where the project may result in ground, visible, or audible disturbances, or changes in public access, traffic patterns, or land use;
- Descriptions of all known National Register-listed or –eligible properties that are in the APE, and descriptions and evaluations of all other properties in the APE for National Register-eligibility (regardless of age) by considering the National Register criteria. (See 36 C.F.R. Part 60 and 36 C.F.R. Part 63). Descriptions should be based on materials such as background research on historic properties, oral history interviews, field surveys and/or investigations, and past planning, research, and studies, and should include information such as a property’s location, the year of its construction (if a structure), and previous ownership;
- A description of the NEH-funded project’s effects on historic properties. For a project to have an effect on an historic property, it must have the potential to alter the characteristics that qualify that property for inclusion in or eligibility for the National Register; and
- An explanation of why the 36 C.F.R. § 800.5(a)(1) criteria for an adverse effect were found applicable or inapplicable, including any conditions or future actions to avoid, minimize, or mitigate adverse effects. Adverse effects to historic properties include physical destruction, alteration, or removal of a property.
Any materials that you provide to the SHPO/THPO must also be provided to NEH, preferably with your grant application or as soon as practicable thereafter.
NEH will ask you to provide all the materials necessary for it to initiate a formal review of your project. Specifically, NEH will ask you for the following:
- The SHPO/THPO’s written determination if you haven’t already provided it;
- Any materials that should have been submitted to the SHPO/THPO to assist him/her with the written determination (See Question 10 above);
- Descriptions of the steps taken to identify any historic properties;
- Information about any known National Historic Landmarks; and
- Any other information provided to and received from the SHPO/THPO.
The APE is the geographic area(s) within which a project may directly or indirectly affect historic properties. The APE is defined before the identification of any historic properties. Therefore, to determine the APE, you do not need to know whether any historic properties exist in the area(s), but you should consider all locations where the project may result in ground disturbances; visible or audible disturbances; or changes in public access, traffic patterns, or land use.
Information about historic properties is available from your SHPO or THPO, local historical societies, public libraries, or local government archives. The National Park Service, U.S. Department of the Interior (NPS) also holds information on every property listed in the National Register. NPS may also have information on properties that have been determined eligible and that have been nominated for (but not yet listed in) the National Register. For the National Register regulations, see 36 C.F.R. Part 60.
To be National Register-listed or -eligible, the property must be significant in American history, architecture, archeology, engineering, and culture, and possess integrity of location, design, setting, materials, workmanship, feeling, and association. Furthermore, the property must meet one or more of the following criteria:
- Be associated with events that have made a significant contribution to the broad patterns of our history; or
- Be associated with the lives of significant persons in or past; or
- Embody the 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 history or prehistory.
National Historic Landmarks are nationally significant historic places designated by the Secretary of the U.S. Department of the Interior because they possess exceptional value or quality in illustrating or interpreting the heritage of the United States. For a listing of National Historic Landmarks, see here.
Once NEH receives all requested materials, it will then review them, consult with the ACHP (if participating), the SHPO/THPO, other consulting parties, and the public to determine the APE, whether there are historic properties present, whether the project will affect those properties, and ways to mitigate or avoid any adverse effects.
NEH’s Section 106 decisions usually fall under one of the following categories:
- No historic properties: If NEH finds there are either no historic properties or there are historic properties but the project will not affect them, then it will follow § 800.4 of the Section 106 regulations, which requires NEH to notify the SHPO/THPO of NEH’s finding. If the SHPO/THPO does not object within thirty (30) days after receiving the letter, then NEH is generally permitted to release grant funds.
- Project’s effects indeterminable: If NEH cannot fully determine a project’s effects on historic properties, then NEH will follow § 800.14, which requires NEH to continue consultations, draft a programmatic agreement (PA), and invite the ACHP to consult on the PA. If the SHPO/THPO and other parties to the PA agree to it and once the PA is filed with the ACHP, then NEH is generally permitted to release grant funds.
- No adverse effects to historic properties: If NEH finds that the project will not adversely affect historic properties, then it will follow § 800.5, which requires NEH to notify the SHPO/THPO and consulting parties of NEH’s findings. If the SHPO/THPO or any of the consulting parties do not object, then NEH is generally permitted to release grant funds.
- Adverse effects to historic properties: If NEH finds that a project will adversely affect historic properties, then NEH will follow § 800.6, which requires NEH to continue consultations, seek ways to mitigate or resolve adverse effects, and execute a memorandum of agreement (MOA). If the SHPO/THPO and other parties to the MOA agree to it and the MOA is filed with the ACHP, then NEH is generally permitted to release grant funds.
The Section 106 review process may take between several months to a year for NEH to complete, depending on the complexity of the project and the cooperation of the awardee or offeree. Therefore, the sooner you are able to provide NEH with the necessary information, the sooner NEH can complete its review. Please be aware that awardees and offers cannot begin any work involving construction, renovation, repair, rehabilitation, or ground or visual disturbances activities until NEH completes its Section 106 review.
What happens if construction is already underway on my project at the time I submit a grant application?
Under Section 110(k) of the NHPA, Federal agencies are prohibited from providing grants, licenses, or other assistance to applicants who intentionally significantly and adversely affect historic properties. This provision, known as the "anticipatory demolition" section, is designed to prevent applicants from destroying historic properties prior to seeking Federal assistance in an effort to avoid the Section 106 review process. NEH encourages all applicants to submit their grant applications early in the project's planning process to avoid any complications from this provision. However, if the project is already underway and you have questions about how Section 110(k) may affect your organization’s eligibility for NEH grant funds, please contact the NEH FPO.
Additional information about Section 106 is available on the ACHP’s website at www.achp.gov. You may also contact the NEH FPO by email: FPO@neh.gov, by phone: (202) 606-8309, or by mail: Federal Preservation Officer, National Endowment for the Humanities, Room 420, 1100 Pennsylvania Ave., N.W., Washington, D.C. 20506.