National Historic Preservation Act (NHPA). The purpose of the NHPA is to protect the historical and cultural foundations of the nation. The NHPA created the Advisory Council on Historic Preservation (ACHP) and provides for the review of federal projects that may affect a significant historic site. Section 106 of the NHPA requires all federal agencies to take into account the effects of their actions on significant historic properties. In the Section 106 process, a federal agency must identify affected historic properties, evaluate the effects of an action on such properties, and explore ways to avoid or mitigate those effects.
The NHPA established a partnership with the states, as administered through State Historic Preservation Officers (SHPOs) appointed by the governor of each state, to establish a statewide cultural resources preservation program tailored to state and local needs. The federal agency often conducts the Section 106 process with the ACHP, SHPOs, representatives of Indian tribes and Native Hawaiian organizations, and other interested parties.
On large projects, a programmatic agreement (PA) or a memorandum of agreement (MOA) is often needed. A PA clarifies roles, responsibilities, and expectations of all parties engaged in federal projects that may have an effect on a historic property. An MOA specifies the mitigation measures that the lead federal agency must take to ensure the protection of a property’s historic values.
While the NHPA is the principal federal law concerning the preservation of significant historic resources, there are other statutes that relate to various aspects of the federal historic preservation program. These range from the protection of archeological sites on federal lands, to the recognition of properties of traditional cultural or religious significance to Native Americans. These include
• Archeological and Historic Preservation Act of 1974 (AHPA)
• Archeological Resources Protection Act of 1979 (ARPA)
• American Indian Religious Freedom Act of 1978 (AIRFA)
• Native American Graves Protection and Repatriation Act of 1990 (NAGPRA)
The ACHP has established implementing regulations for the protection of historic properties (36 CFR 800). These procedures must be followed for federal undertakings. An undertaking is defined as any project, activity, or program that can result in changes in the character or use of historic properties, if any such historic properties are located in a defined area of potential effects (APE).
Under these procedures, an opportunity for early public involvement must be provided for federal actions during the phase of the project development process. For categorically excluded projects, when properties eligible for inclusion on the National Register of
Historic Places are present or potentially present (such as in an archaeologically sensitive area), there must be early public involvement. Projects are excepted from this requirement if (1) they have been defined as having a minimal APE and therefore do not fall within the Section 106 definition of undertakings and (2) no known historic resources are present. Opportunity for involvement by the public generally occurs at the identification, evaluation, and consultation stages for projects categorically excluded from review under NEPA.
For those actions requiring evaluation in an EA, notices concerning the initiation of the environmental review process or opportunities for public review must state whether any alternatives could potentially involve historic properties. If this uncertain then the notices must request the names of those persons who may have information relating to historic properties that may be affected or who may be interested in the effects of the undertaking on historic properties. At any hearing, the effects of any alternatives on such properties must be identified.
For projects where an EA or EIS has been prepared, documentation of completion of the Section 106 process should be included in the completed document. For categorically excluded projects, Section 106 documentation is completed separately when resources have been identified.
