Part 8: Environmental Review for Federal Undertakings

The National Historic Preservation Act, as amended, created the authority and mechanisms to ensure the consideration of historic places in federally funded, licensed, or approved undertakings. Other Federal laws, such as the National Environmental Policy Act of 1964, as amended, the Archaeological Resources Protection Act of 1979, as amended, and the Archeological and Historic Preservation Act (AHPA) provide additional protective mechanisms for historic properties when the Federal Government is involved. Further, the National Historic Preservation Act and the AHPA, underscore the responsibility of Federal agencies to identify historic properties and ensure that they are fully considered during Federal planning. Many States have adopted similar policies and legislation pertaining to State funded, licensed, or approved projects. Parallel policies are implemented at the local level through planning and zoning ordinances.

It is important to realize that these Federal laws are not meant to obstruct project planning or require preservation, but simply to ensure that the impact on historic properties is analyzed and carefully weighed prior to final decision-making and implementation of projects authorized by government. The State historic preservation office can provide information on State and local laws regarding protection of historic properties through environmental review and other mechanisms. This section is limited to environmental review for Federal undertakings. State historic preservation office activities involving protection of historic properties through environmental review are known collectively as the State's "Review and Compliance" program because they involve the State's review of agency activities for compliance with historic preservation related statutory responsibilities.

Section 106 of the National Historic Preservation Act and the Advisory Council on Historic Preservation

The National Historic Preservation Act, as amended, created the Advisory Council on Historic Preservation, an independent agency in the executive branch of the Federal government whose purpose is to inform, educate, encourage, and advise the President, Congress, and Federal agencies on matters relating to historic preservation. The Council also administers the Federal historic preservation regulatory process known as Section 106 review, which ensures that historic properties are given due consideration in the planning of Federal projects or actions.

The Council is composed of a chairman, vice chairman, six other private citizen members, a governor, and a mayor, all appointed by the President of the United States. The Council also includes the Secretaries of the Interior and Agriculture, the heads of four Federal agencies designated by the President, the Architect of the Capitol, the chairman of the National Trust for Historic Preservation, and the President of the National Conference of State Historic Preservation Officers. Day-to-day business of the Council involving Section 106 review is conducted by an executive director and a professional staff of historians, architects, archeologists, planners, lawyers, and administrative personnel.

One of the most significant responsibilities of the Advisory Council is reviewing and commenting upon Federally licensed or assisted projects that could affect properties that are either listed in or eligible for the National Register, pursuant to Section 106 of the Act.

Section 106 of the Act states:

The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under Title II of this Act a reasonable opportunity to comment with regard to such undertaking.

The term "Federal undertaking" includes a broad range of Federal activities: construction, rehabilitation and repair projects, demolition, licenses, permits, loan guarantees, grants, Federal property transfers, and many other types of Federal involvement. Whenever one of these activities affects a historic property, the sponsoring agency is obligated to seek Council comments.

The Section 106 review process is spelled out in Federal regulations issued by the Advisory Council and entitled "Protection of Historic Properties," and appears in the U.S. Code of Federal Regulations at 36 CFR 800. The process involves five basic steps, as follows:

1) Identify and evaluate historic properties.

The Federal agency responsible for an undertaking begins by identifying the historic properties the undertaking may affect. The agency first reviews background information and consults with the State Historic Preservation Officer and others who may know about historic properties in the area. Based on this review the agency determines what additional surveys or other field studies may be needed, and conducts such studies.

If properties are found that may be eligible for the National Register, but have not yet been listed in the Register, the agency evaluates them against the National Register Criteria. This evaluation is carried out in consultation with the SHPO, and if questions arise about the eligibility of a property, the agency may seek a formal determination of eligibility from the Keeper of the National Register. If a property is already listed in the National Register, further evaluation is not ordinarily necessary.

2) Assess effects of the undertaking.

If properties listed in or determined eligible for inclusion in the National Register are found, the agency then assesses what effect its undertaking will have on them. The agency works with the SHPO, and considers the views of others. The agency makes the assessment based on criteria found in the Council's regulations, and can make one of three determinations: 1) no adverse effect (the undertaking will affect one or more historic properties, but the effect will not be harmful) or 2) adverse effect (the undertaking will harm one or more historic properties.

3) Consultation.

If an adverse effect will occur, the agency consults with the SHPO and others in an effort to find ways to make the undertaking less harmful. Others who are consulted may include local governments, Indian tribes, property owners, other members of the public, and the Council. Consultation is designed to result in a Memorandum of Agreement (MOA), which outlines measures agreed upon that the agency will take to reduce, avoid, or mitigate the adverse effect.

If consultation is unproductive, the agency, or the SHPO, or the Council itself, may terminate consultation. The agency must submit appropriate documentation to the Council and request the Council's written comments.

4) Council Comment

The Council may comment during the consultation step of the process, by participating in the consultation and signing the MOA. Otherwise, the agency obtains Council comment by submitting the MOA to the Council for review and acceptance. The Council can accept the MOA, request changes, or opt to issue written comments.

5) Proceed

If a MOA is executed, the agency proceeds with its undertaking under terms of the MOA. In the absence of a MOA, the agency head must take into account the Council's written comments in deciding whether and how to proceed.

6) Alternative approaches

The Section 106 regulations also spell out two alternative means of complying with Section 106. These are:

1. Programmatic agreements among an agency, the Council, and one or more SHPOs, and others;

2. Counterpart regulations developed by an agency and approved by the Council;

3. An agreement between the Council and a State, which substitutes a State review system for the 106 process.

Determinations of Eligibility (for Inclusion in the National Register)

The Federal agency and the SHPO, through consultation, may establish that there are potentially eligible historic resources present within a Federal project area. Although only the National Park Service may make an official Determination of Eligibility for inclusion in the National Register (in response to written requests from the Federal agencies), if the Federal agency and the SHPO agree on a property's eligibility, the Federal agency may proceed in the Section 106 process as if an official NPS determination had been made. If the Federal agency and the SHPO, through consultation, disagree on the eligibility of the property, the Federal agency will request a Determination of Eligibility from the Keeper of the National Register pursuant to Determination of Eligibility regulations (36 CFR Part 63).

Role of the Review Board in Environmental Review

Although Review Board members do not play an official role in the environmental review process, awareness of the importance of early planning in the Federal Government's environmental review and compliance procedures will allow Review Board members to serve as troubleshooters.

The environmental review process provides citizens with a system that allows a full presentation of all sides of any issue that may affect historic resources. When environmental review is applied early in the process it is most effective in achieving a planning effort that is comprehensive, efficient, and mutually beneficial; i.e., streamlining the Federal process for a worthwhile undertaking while respecting historic resources.

Other general environmental review activities that Review Board members can involve themselves in are:

1. Advising the SHPO in formulating laws or procedures, similar to the Federal Advisory Council process (36 CFR 800), to ensure that no action or funding that affects a National Register eligible property is taken by any agency of State government until a proper review of the project's impact has been made;

2. Serving in an advisory capacity in any environmental review or National Register determination of eligibility case that the SHPO wants to refer to the Review Board.

SUGGESTED READING

Determination of Eligibility regulations (36 CFR Part 63).