Section 106 Review Process

Federal agencies are responsible for initiating Section 106 consultation, involving consulting parties and the public, and completing the steps in the process as outlined in 36 CFR Part 800. Section 106 requires that federal agencies take historic properties into consideration, but it does not necessarily dictate a preservation-oriented outcome. After considering the views of consulting parties through the Section 106 process, the federal agency is ultimately responsible for determining whether to proceed with a given project.

Some federal agencies transfer certain Section 106 responsibilities to others. For example, applicants for federal financial assistance or federal permits may be required to provide information about the project directly to the SHPO. In the case of the U.S. Department of Housing and Urban Development, responsibility for Section 106 is fully borne by local governments that receive HUD assistance; please see the HUD Guidance Memorandum under Guidance and Agreement Documents for more details.

The NHPA created the Advisory Council on Historic Preservation (ACHP), an independent federal agency in the executive branch that oversees the implementation of Section 106, among other responsibilities. Federal agencies must give the ACHP a reasonable opportunity to comment on their undertakings as part of the Section 106 process. The ACHP rarely enters into consultation for specific undertakings but must be notified of any adverse effects to historic properties. Please see the ACHP website for more information.

The NHPA requires the governor of every state to appoint a State Historic Preservation Officer (SHPO) to administer a preservation program in the state. The SHPO consults with federal agencies during Section 106 review and represents the interest of the state in preserving its cultural heritage. In Texas, the SHPO is the Executive Director of the Texas Historical Commission (THC). Please see How the THC Reviews Projects and What to Send for a Project Review for further details on how to coordinate with our office.

Federal agencies are required to consult with federally recognized Indian tribes that may attach religious and cultural significance to a historic property. The Section 106 regulations also provide for a federally recognized tribe to appoint a Tribal Historic Preservation Officer (THPO) to consult directly with federal agencies during Section 106 review. Please review our Guidelines for Tribal Consultation for information on the tribal consultation process, tribal contacts, and areas of interest.

A representative of a local government with jurisdiction over the area in which the effects of a project may occur is entitled to participate as a consulting party in the Section 106 process.

Applicants for federal assistance, permits, licenses, and other approvals are also entitled to participate as consulting parties in the Section 106 process. The federal agency may authorize applicants to initiate consultation but remains legally responsible for ensuring the process is followed prior to granting federal assistance.

Additional consulting parties may include individuals and organizations with a demonstrated interest in a project. In Texas, communities may have multiple commissions and organizations with a vested interest in historic preservation. Each county in Texas is required by state law to have a County Historical Commission (CHC), which is an official body of county government. Many Texas municipalities also have a local historic preservation officer and landmark commission. Historic downtown commercial districts may participate in the Texas Main Street Program, and the local Main Street manager would be interested in projects in the Main Street district. Some communities may also have local or regional non-profit preservation organizations. The federal agency should identify and consider including all of these entities in the consultation process, when appropriate.

The federal agency must also provide an opportunity for the public to comment. The views of the public are essential to informed decision-making in the Section 106 process, and it is incumbent upon the federal agency to seek and consider the views of the public in a manner that reflects the nature and complexity of the undertaking and its effects on historic properties. The federal agency must provide the public with information about the project and allow the public to comment.

As the first step in the Section 106 process, the federal agency must determine whether its proposed action is an undertaking, and if so, whether it is a type of activity that could affect historic properties. If an undertaking has no potential to cause effects to historic properties, should any be present, the agency is finished with its Section 106 obligations. This determination must be made by the agency official, not an applicant for federal assistance, consultant, or other party.

When a proposed undertaking has the potential to affect historic properties, the federal agency or its delegate should initiate consultation by providing documentation about the project to our office and other consulting parties, as appropriate. Please see What to Send for a Project Review for a description of the documentation necessary to initiate Section 106 review, including the Request for SHPO Consultation form and required attachments.

Our office has 30 days upon receipt of adequate documentation to review and comment on a project. If additional information is requested, the 30-day review period will reset upon receipt of the new information. For this reason, it is very important to fully complete the review form and provide the required attachments with your initial submission.

During the Section 106 process, the federal agency or its delegate must identify historic properties and determine the effect of the proposed project on them. In order to do so, it is first necessary to define and document the area of potential effects (APE) for the project. The APE is the geographic area within which an undertaking may directly or indirectly cause changes in the character or use of historic properties, if such properties exist. The area of potential effects is influenced by the scale and nature of the undertaking and may be different for different kinds of effects caused by the undertaking. Generally, an area broader than the project footprint must be considered.

The APE should be coordinated with our office early in the consultation process, before efforts to identify historic properties occur. Please see the document Guidance for Defining Areas of Potential Effect under Guidance and Agreement Documents for further discussion of how to define the APE for particular project types.

The NHPA established the National Register of Historic Places, which is a list of districts, sites, buildings, structures, and objects of national, regional, or local significance. Under Section 106, federal agencies must consider the effects of their actions on historic properties, defined as resources that are included in, or eligible for inclusion in, the National Register. To be eligible for listing, a cultural resource must meet certain criteria for designation, as outlined in the National Register section.

After defining the APE in consultation with our office, the federal agency must identify any historic properties within that boundary. It is not the SHPO’s responsibility to conduct research or fieldwork for the identification of historic properties. This information must be provided with the project submission to our office.

As a first step, you may consult the Texas Historic Sites Atlas to determine if previously identified historic properties exist in the APE. Please keep in mind that the Atlas lists only those properties that have actually received historical designations, not those simply determined eligible for designation. In most cases, fieldwork to identify additional historic resources will be required for compliance with federal law. Information about archeological sites is not available to the general public to protect the sites from vandalism and destruction.

Identification of historic properties should be carried out by a professional meeting the Secretary of the Interior’s Professional Qualifications Standards in an applicable field. If determinations of National Register eligibility are made by a qualified professional, our office will concur or not concur with those determinations. If a professional is not involved, the THC will make a determination of eligibility based on the information provided.

Once historic properties have been identified in the APE, the federal agency must determine the effect of the proposed undertaking on those historic properties. An effect occurs when an action alters the characteristics of a property that qualify it for listing in the National Register of Historic Places, including changes to the property’s location, design, setting, materials, workmanship, feeling, and association. Effects can be direct or indirect, and can be physical, visual, audible, or economic. They may include a change in ownership or use. The assessment of effects may reach one of three outcomes:

• "No historic properties affected" means either there are no historic properties present in the APE, or the proposed project will have no effect on historic properties that are present. SHPO concurrence with this determination concludes the review process, and no further consultation is required.
• "No adverse effect" means that there are historic properties present in the APE, and while the proposed project will have an effect on them, it is not detrimental. An example of a project that would have no adverse effect is rehabilitation of a building that meets the Secretary of the Interior’s Standards for the Treatment of Historic Properties. SHPO concurrence with this determination concludes the review process, and no further consultation is required. A determination of "no adverse effect with conditions" requires that the federal agency comply with conditions described in our response or engage in further consultation.
• "Adverse effect" means that the proposed project will have a detrimental impact on historic properties in the APE. Examples include demolition or destruction of a historic property, alterations that do not meet the Secretary of the Interior’s Standards, or introduction of new elements in the property’s setting that diminish its historic integrity. Upon arriving at this determination, the federal agency must continue consultation and seek ways to avoid, minimize, or mitigate the effects to historic properties. Once such means of resolving adverse effects are agreed upon by the agency and consulting parties, they are formalized in a Memorandum of Agreement.

As with the previous step, assessment of the effects of the undertaking on historic properties should be carried out by a professional meeting the Secretary of the Interior’s Professional Qualifications Standards in an applicable field. If determinations of effect are made by a qualified professional, our office will concur or not concur with those determinations. If a professional is not involved, the THC will make a determination of effect based on the information provided.

An adverse effect is an undertaking that may alter, directly or indirectly, any of the characteristics of a historic property that qualify that property for listing in the National Register of Historic Places. Adverse effects may include reasonably foreseeable effects that may occur later in time, be farther removed in distance, or be cumulative. Examples of adverse effects include:

• Physical destruction or damage to all or part of the property
• Alteration of a property that is not consistent with the Secretary of the Interior’s Standards for the Treatment of Historic Properties
• Removal of the property from its historic location
• Change of the character of the property’s use or features within the property’s setting
• Introduction of visual, atmospheric, or audible elements that diminish the property’s historic integrity
• Neglect of a property which causes its deterioration
• Transfer, lease, or sale of property out of federal ownership without restrictions to ensure its long-term preservation

Upon arriving at this determination, the federal agency must notify the ACHP of the adverse effect and continue consultation with the SHPO and other consulting parties. It is especially important to consider the views of the public at this stage in the process. The goal of ongoing consultation is to seek and evaluate measures that would avoid, minimize, or mitigate the adverse effects to historic properties. If the federal agency agrees to revise the project in a way that would avoid all adverse effects, the project may proceed without further consultation. However, if the adverse effect cannot or will not be avoided, the agency must enter into a Memorandum of Agreement (MOA) with the SHPO, and potentially other consulting parties and the ACHP. This legally binding agreement describes efforts that will be implemented to minimize or mitigate the adverse effect. Once an MOA is executed, the project may proceed under the terms of the agreement.