The National Historic Preservation Act (16 USC 470) provides for the preservation of historic resources. Section 106 of the law requires that federal undertakings (actions involving federal funding, permits or property) must take into account the effect on historic properties. The law established the Advisory Council on Historic Preservation (ACHP), comprised of government officials, historic experts, members of the public, and other federal agencies, which advises the President and Congress on issues concerning historic preservation. The law also established a National Register of Historic Places, (National Register) “composed of districts, sites, buildings, structures, and objects significant in American history, architecture, archaeology, engineering, and culture”. Parks, Forests, and Public Property regulations CFR 36 800, “Protection of Historic Resources”, provides the regulatory process for demonstrating compliance with Section 106.
When It Is Required
Any project that has federal involvement, requires a federal permit, or receives federal funding must demonstrate compliance with Section 106. Section 106 is applicable to “any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register.” Transportation projects might involve Section 106 because of work on or near historic bridges, historic buildings, historic districts, or areas sensitive for archaeology. Note that properties do not have to be listed on the National Register for the law to apply; they need only be eligible for listing.
Permit or Approval Process
Under Section 106, the governor of each state designates a State Historic Preservation Officer (SHPO) to administer Section 106 compliance. In Vermont, the Division for Historic Preservation, within the Department of Economic Housing and Community Development, houses the SHPO. In 2000, a programmatic agreement between FHWA, VTrans, ACHP, and SHPO was signed to streamline implementation of the Federal-aid highway program in Vermont. The agreement allows for VTrans to review and approve projects for Section 106 compliance internally with qualified staff. A similar programmatic agreement was signed in 2004 by the Federal Transit Administration, VTrans, ACHP, and SHPO. VTrans has published a Manual of Standards and Guidelines that lays out procedures for project reviews in accordance with the Programmatic Agreements. Prior to the issuance of the 2000 programmatic agreement, individual programmatic agreements covering paving projects and historic bridge repair were issued. Each of these agreements provide for expedited internal review (within VTrans) for Section 106 compliance.
There is no permit issued for Section 106 compliance. The procedure for determining compliance is as follows:
Determine what the Area of Potential Effect (APE) is. The APE is the geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist.
Identify properties listed on or eligible to be listed on the National Register (NR-eligible) within the APE. Procedures for this step are detailed in 36 CFR 800.4 and in the Manual of Standards and Guidelines. In most cases, properties must be at least 50 years old to be NR-eligible.
Determine if there are any effects to NR-eligible properties. If there are no effects, either because there are no NR-eligible properties or no effects to properties that are NR-eligible, a finding of No Historic Properties Affected is made by the VTrans Archaeology officer and the VTrans Historic Preservation Officer and provided to FHWA and SHPO. No further review under Section 106 is necessary.
If there are effects to NR-eligible properties proposed, determine if they are adverse. “An adverse effect is found when an undertaking may alter, directly or indirectly, any of the characteristics of a historic property that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property's location, design, setting, materials, workmanship, feeling, or association.” (36 CFR 800.5) If there are effects, but the effects are not adverse, a finding of No Adverse Effect is made. The finding may include conditions that must be met for there to be no adverse effect, for example, precautions that must be taken during construction. It is the responsibility of VTrans and FHWA to ensure that such conditions are met.
If there are adverse effects proposed, a finding of Adverse Effect is made. VTrans must evaluate alternatives that would avoid adverse effects. If no such alternatives exist, VTrans must minimize or mitigate the adverse effect. VTrans has a list of 19 standard mitigation measures in the Manual of Standards and Guidelines that might be used when a finding of adverse effect is made. In some cases, where the standard mitigation measures don’t apply, a Memorandum of Agreement is signed by VTrans FHWA, and SHPO, that stipulates mitigation measures for the adverse effects.
The Section 106 law and regulations do not specify approval time frames, but the duration of the approval may be specified in an MOA.
Regulatory programs with overlapping jurisdiction with Historic and Archaeological resources include, but are not necessarily limited to, the following:
Section 4(f): Section 4(f) regulates parks, wildlife refuges, and historic sites that may be affected by FHWA projects.
Act 250: Criterion 8 of Act 250 requires analysis of impacts to historic sites.
Archaeology and Historic Preservation: Secretary of the Interior’s Standards and Guidelines
National Historic Preservation Act of 1966 as amended through 2000 [with annotations]
National Register of Historic Places
Protecting Historic Resources: A Citizen’s Guide to Section 106 Review
VTrans archaeological and historic resource specialists:
Historic Preservation Officer
Historic Preservation Specialist