Section 106 Review: National Historic Preservation Act

A. Legal Authority

• National Historic Preservation Act of 1966, as amended, Public Law 89-665; 16 U.S.C. 470 et seq.
• Title 36 CFR, Part 800, Protection of Historic Properties, Regulations of the Advisory Council on Historic Preservation

Information: https://www.achp.gov/digital-library-section-106-landing/national-historic-preservation-act

B. Purpose

The purpose of Section 106 of the National Historic Preservation Act (NHPA) is to reduce or avoid damage to historic resources of the U.S. from federal actions. The act requires federal agencies to take into account the effects of their decisions on historic properties, and affords the Advisory Council on Historic Preservation (ACHP), an independent federal agency, a reasonable opportunity to review and comment on such actions.

C. Applicability to Aquaculture

A Section 106 applies when two thresholds are met: 1) there is federal or federally licensed action, including grants, licenses and permits; and 2) that action has the potential to affect properties listed, or eligible for listing, in the National Register of Historic Places. This broad applicability means that properties which have not yet been listed and even those not yet discovered can be subject to the Section 106 review requirements.

Section 106 requires each federal agency to identify and assess the effects of its actions on historic resources. The responsible federal agency must consult with appropriate state and local officials, applicants for federal assistance, and members of the public and consider their views and concerns about historic preservation issues when making final project decisions. Concerns are resolved by mutual agreement, usually among the affected state’s State Historic Preservation Officer (SHPO), the federal agency, and any other involved parties.

D. Administering Agency

The Advisory Council on Historic Preservation, in consultation with the SHPO, is responsible for administering the Section 106 review and providing comments. See the web site for Neighbor Island offices.

Advisory Council On Historic Preservation
1100 Pennsylvania Avenue, N.W., Suite 803
Old Post Office Building
Washington, D.C. 20004
Phone: 202 606-8503
E-mail: achp@achp.gov
Web site: www.achp.gov

State Historic Preservation Division
Department of Land and Natural Resources
State of Hawaiʻi
Kakuhihewa Building
601 Kamokila Blvd., Suite 555
Kapolei, Hawaiʻi 96707
Phone: 808 692-8015
Web site: http://hawaii.gov/dlnr/hpd/hpgrtg2.htm

E. Information Requirements

The review information required depends on the nature of the review and the result of the initial evaluation of the property. If the process is fully executed, the information will include at least the following:

• Description of the undertaking, including photographs, maps and drawings, as necessary;
• Description of the efforts used to identify historic properties;
• Description of the affected historic properties, with information on the significant characteristics of each property;
• Description of the effects of the undertaking on historic properties and the basis for the determinations;
• Description and evaluation of any alternatives or mitigation measures that the agency proposes for dealing with the undertaking’s effects;
• Description and evaluation of any alternatives or mitigation measures that were considered but not chosen and the reason for their rejection;
• Documentation of the consultation with the SHPO;
• Description of the agency’s efforts to obtain and consider the views of affected local governments and other interested persons;
• Planning and approval schedule for the undertaking;
• Copies or summaries of any written views submitted to the agency concerning the effects;
• Any additional information needed to understand the undertaking; and
• Summary of the views of the SHPO and any interested parties.

F. Public Participation

The concerned agency is required to provide adequate opportunity for the public to receive information about the project and express their views. Actions to publicize the project review opportunity include publication of a notice in the newspaper. A general description of the Section 106 review process can be found in, “A Citizens Guide to Section 106 Review,” (see Section 6.0 on Useful References).

Information: www.achp.gov.

G. Process Time

The review process involves five basis steps:

• Identifying and evaluating historic properties;
• Assessing effects of the project;
• Consultation between the agency and the State Historic Preservation Officer (SHPO) regarding the manner in which to proceed;
• ACHP review and comment; and
• Implementation and action by the agency.

The intent of the process is for the agency, SHPO and ACHP to reach a formal agreement on the manner in which to proceed in light of any potential effects on the historic property.

If it is determined that there will be an adverse effect and agreement is reached as to what steps the agency or private sector applicant will take to mitigate the adverse effects, a formal Memorandum of Agreement (MOA) will be signed and the agency will act accordingly. If no agreement is reached, the ACHP makes its review comments and the entire package is forwarded to the applying agency for consideration prior to proceeding with the proposed activity. It is up to the agency to determine the course of action to take given the authoritative comments on the historic preservation considerations.

The time required to complete Steps 1 through 3 of the review process are dependent on the agency. If the agency submits a signed MOA with the required documentation for review by the Advisory Council, review can take up to 30 days. If there is no MOA the agency can request issuance of the Advisory Council’s comments within 60 days after all of the required documentation is submitted.

H. Sequence of Filing

It is important that consideration of any impacts on historic properties occur in the early stages of project planning to ensure that preservation concerns receive appropriate consideration. Early review also permits modifications to a project while they are relatively easy to consider and accomplish, thereby reducing the potential for conflict and delay.

I. Cost

The cost to the federal agency or individual of preparing the required review documentation will vary with the size of the property in question, the complexity of the proposed undertaking under review and the need for professional assistance.