NHPA, Section 106, and NEPAHighlights and Misconceptions

RECAP: NHPAPurpose “. . .the increased knowledge of our historic

resources, the establishment of better means of identifying and administering them, and the encouragement of their preservation will improve the planning and execution of Federal and federally assisted projects and will assist economic growth and development.

NHPA Policy Provide financial and technical assistance. Provide leadership in the preservation of the

prehistoric and historic resources and in the administration of the national preservation program.

Administer federally owned, administered, or controlled prehistoric and historic resources in a spirit of stewardship for future generations.

Contribute to the preservation of nonfederally owned prehistoric and historic resources.

NHPA Policy-continued Encourage public and private preservation

and utilization efforts. Assist State and local governments, Indian

tribes and Native Hawaiian organizations, and the National Trust for Historic Preservation to expand and accelerate their historic preservation programs.

NHPA Scope (Sec.of the Interior)Section 101 Authorize the National Register of Historic Places. Administer National Historic Landmarks (NHL) Ensure that significant prehistoric and historic

artifacts and associated records are deposited in an institution with adequate long-term curational capabilities.

Review significant threats to properties included in, or eligible for inclusion in, the National Register.

Scope-continued Revise regulations for State Historic Preservation

Programs and evaluate programs periodically. Require SHPO consultation with Federal agencies. Certification of local and State governments and

Indian preservation programs. Include the properties of traditional religious and

cultural importance. Administer a matching grants-in-aid program.

Scope-continued Develop and implement a comprehensive

preservation education and training program. Promulgate guidelines for Federal agency

responsibilities under Section 110. Develop professional standards. Provide training in and information concerning

professional methods and techniques for the preservation of historic properties and for the administration of the historic preservation program at the Federal, State, and local level.

Our Beloved Section 106 “The head of any Federal agency having direct or

indirect jurisdiction over a proposed undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall prior to the approval of the expenditure of 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 this is included in or eligible for nomination to the National Register.”

Section 110 Feds establish a preservation program. Historic properties should be used as much as

possible rather then construct or acquire new buildings.

Feds should protect historic properties and comply with Section 106.

Applicability of NEPA. No assistance to applicants who intend to create an

adverse effect.

Section 112 For protection of historic and archaeological

resources: (1) actions by agency employees or contractors must meet professional standards; (2) must maintain databases and provide access.

For owners of properties to preserve historic resources on eligible properties (provide information on protection, encourage preservation, etc.).

Other Relevant Sections Section 111: preservation of properties by alternate

uses, leases, or exchange. Section 201: establishes the Advisory Council on

Historic Preservation. Section 211: Council promulgate rules and

regulations for Section 106 and involve local government participation.

Section 302: authorizes Federal expenditure of funds.

Section: 304: confidentiality of the location, character, or ownership of historic resources.

National Environmental Policy Act of 1969, as amended (42 USC 4371)Policy and Goals: “Continuing responsibility of the Federal

Government to use all practical means to improve and coordinate Federal plans, functions, programs, and resources.”

“Preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice.”

NEPA Reporting Utilize a systematic, interdisciplinary

approach. Give environmental values appropriate

consideration in decision making. Detail environmental impacts, adverse

environmental effects, alternatives, and any irreversible and irretrievable commitments of resources.

Types of Reports Under NEPA Environmental Assessments (EA) Determine

whether a project constitutes a MFASAQHE (“major federal actions significantly affection the quality of the human environment”).

Environmental Impact Statement (EIS). Detailed analysis of impacts.

Categorical Exclusions (CATEX). Actions that are routinely excluded because of their unlikelihood of affecting the environment adversely.

NEPA Process Coordinated with Section 106 Review

Back to Section 106: How do we know if we have an undertaking?Does the project have the potential to “adverse

effects” on historic properties?Identification and Scoping (“Phase I”) Definition of the Area of Potential Effect

(APE) (direct and indirect effects). Background research (may include archival

and inventory record search). Field survey

Identification of Resources and DOE Application of Criteria

of Eligibility (36 CFR 60.4).

Is there disagreement between the SHPO and the Agency? Go to the Keeper!

Assessing Effects/Consultation Undertaking will have not effect; SHPO and Agency

concur. Undertaking will have no adverse effect (NAE);

SHPO/Agency concur. Undertaking will have an adverse effect; leads to

negotiating mitigation. Dealing adverse effects require the preparation of a

Memorandum of Agreement (MOA). If there is no MOA, ACHP must comment.

Section 106 Diagrammed