National Historic Preservation Act (NHPA)
WHAT IS THE NHPA?
The National Historic Preservation Act (NHPA) establishes a partnership between the federal government and state, tribal,
and local governments that is supported by federal funding for historic preservation (54 U.S.C. § 300101 et seq.). Section
106 of the NHPA requires Federal agencies to take into account the effect of their undertakings on historic properties and
aims to identify historic properties potentially affected by the undertaking, assess its effects, and seek ways to avoid,
minimize, or mitigate any adverse effect to historic properties (36 CFR § 800.1(a)).
ROLE OF EPA
Projects receiving grant funding from the U.S. Environmental Protection Agency (EPA) through the Community Grant Program are subject to compliance with NHPA Section 106.
EPA is responsible for reviewing Community Grant projects for Section 106 compliance and requesting project details and supporting information from the grant recipient when needed.
If Section 106 compliance is outstanding, EPA is responsible for making effects determinations; consulting with the State Historic Preservation Office (SHPO), Native American tribes, and representatives of local governments; ensuring mitigation measures from the consultation are included in grant conditions; and—in the case of actions with adverse effects—consulting further to resolve the adverse effects.
EPA may designate a non-federal representative to initiate consultation with the SHPO/Tribal Historic Preservation Office (THPO) by issuing a non federal designation letter; however, the ultimate responsibility for compliance with Section 106 remains with EPA.
KEY DEFINITIONS:
Undertaking – A project, activity, or program funded
in whole or in part under the direct or indirect
jurisdiction of a Federal agency, including those
carried out by or on behalf of a Federal agency; those
carried out with Federal financial assistance; and those
requiring a Federal permit, license or approval (36
CFR § 800.16(l)(1)).
Historic Property – Any prehistoric or historic
district, site, building, structure, or object included in,
or eligible for inclusion in, the National Register of
Historic Places (NRHP) maintained by the Secretary
of the Interior. This term includes properties of
traditional religious and cultural importance to an
Indian tribe or Native Hawaiian organization that meet
the National Register criteria (36 CFR § 800.16(y)).
Effect – Alteration to the characteristics of a historic
property qualifying it for inclusion in or eligibility for
the NRHP (36 CFR § 800.16(i))
SECTION 106 REVIEW REQUIREMENTS
Section 106 review is required for all levels of NEPA (CATEX, EA, and EIS). This review begins with determining if the
proposed undertaking is a type of activity that has the potential to cause effects to historic properties. Any projects that
involve earth disturbance and/or construction activities (i.e., nearly every Community Grant Project) have the “potential to
cause effects” to historic properties and therefore require further review and Section 106 consultation. The review must
consider the action’s potential direct (e.g., alteration or removal of the resource) and indirect effects (e.g., introduction of
modern intrusions to the viewshed of a resource, such as the addition of a modern facility in a historic district, or other
impacts to the scenic values of the resource) to historic properties in the area of potential effects (APE). Effects can also
occur further in time or distance from the initial undertaking and can include cumulative effects. This review typically
involves an archival records search to assess the presence of historic properties in the APE. For archaeological and tribal
resources, a Secretary of Interior qualified professional may be required to review non-public state-managed information
sources. The review will result in one of three determinations: “no historic properties affected,” “no adverse effect to historic
properties,” or “adverse effect to historic properties.” EPA should then send this determination and supporting
documentation to the SHPO for concurrence. If the undertaking occurs on or affects historic properties on any tribal lands,
the THPO may, in some cases, assume the duties of the SHPO
Determinations
Potential to Cause Effects
The proposed project does not have
the potential to cause effects to
archaeological or architectural
resources, regardless of the presence of historic properties in the APE.
(Only applies to projects involving no construction or earth-disturbing activities.)
* No further Section 106
obligations.
* Proceed with NEPA review.
Documentation: Record the finding
in the cross-cutter memo only.
Historic Properties Affected
or
No Adverse Effect to Historic Properties
No historic properties are present – or –
historic properties are (potentially) present
but the project will incorporate avoidance
measures to ensure any effects will not
directly or indirectly alter any of the
characteristics of a historic property that
qualify it for the NRHP. Request review/concurrence from SHPO/THPO, wait 30 days for reviewor objection. If no objections are received, document findings and proceed with NEPA review.
Documentation: Letter to the SHPO/THPO requesting concurrence with the determination and the notification of concurrence, if received.
Adverse Effect to Historic Properties
Effects are anticipated to directly
and/or indirectly alter characteristics
of a historic property that qualify it
for the NRHP.
* Consult further to resolve the adverse effect. Resolution takes the form of an MOA or PA.
* After a resolution is reached,
proceed with NEPA review.
Documentation: All correspondence
with the SHPO/THPO and other
necessary consulting parties
requesting further consultation to
resolve the adverse effects, typically
offering mitigation measures. Should
include a record of the MOA/PA.
MITIGATION OF ADVERSE EFFECTS
The ACHP regulations define an adverse effect as any effect that may “diminish the integrity of the property’s location,
design, setting, materials, workmanship, feeling, or association” (36 CFR 800.5(a)(1)). Section 106 does not prohibit actions
that result in adverse effects but it requires continued consultation to develop either a Memorandum of Agreement (MOA)
or a Programmatic Agreement (PA) to outline measures to avoid, mitigate, or minimize adverse effects. EPA coordinates
with other consulting parties, such as SHPOs and/or Tribal representatives as appropriate, to determine these measures.
MOAs are typically developed for specific projects where adverse effects are clearly defined. PAs are more suitable for
complex projects where effects are less clear or for a series of undertakings that will have similar and repetitive effects.
ROLE OF THE GRANT RECIPIENT
Grant recipients must demonstrate compliance (if already completed for a project with a different federal agency) or assist
EPA with complying with Section 106 for a project. As soon as the decision has been made to apply for an EPA-funded
grant, the recipient should contact EPA to request assistance in determining the level of involvement in the Section 106
process. Recipients are responsible for providing EPA with the information needed to properly characterize impacts. EPA
may request project details or analysis to support development of a Section 106 consultation package if required. As
described above, recipients may prepare information, analyses, and recommendations, as well as initiate consultation, on
behalf of EPA. For more information on designation letters, the grant recipient may reach out to the regional point of contact.