Section 106 Compliance: Six Things You Should Know
The law may require that your project is evaluated for impacts to archaeology, cemeteries, old architecture, historic viewsheds, etc. Often called “Section 106 review,” this process involves consultation with the State Historic Preservation Office (SHPO), who may request a Phase I archaeological survey, architectural reconnaissance survey, or for you to evaluate historic properties.
Only a professionally qualified cultural resource management (CRM) consultant can fully navigate the Section 106 process, but here are a few basics that YOU should know.
- Section 106 is part of the National Historic Preservation Act (NHPA), which regulates projects with a “federal nexus.” Such projects are defined as an “undertaking” and are triggered by permits, land, funding, jurisdiction, or any other direct involvement from a federal agency. One of the most common is a Nationwide Permit from the U.S. Army Corps of Engineers.
- When an undertaking could impact a “historic property,” a Section 106 review helps government agencies to manage or mitigate impacts in a responsible way. This consultation requirement cannot stop development or force preservation, but all of the steps must be completed according to federal and SHPO guidelines. Click here for a printable flowchart of the Section 106 process.
- Cultural resources must meet one of the National Register of Historic Places (NRHP) eligibility criteria to be considered “historic properties.” They usually must be more than 50 years old and can include archaeological sites, houses and other architecture, farmsteads, historic areas, bridges, cemeteries, rock walls, etc. If a cultural resource fails to meet one of the NRHP criteria, they must still be documented for due diligence.
- State Historic Preservation Offices (SHPOs) advise government agencies on how to comply with Section 106, make recommendations for archaeological or architectural surveys, and provide expert opinions about which cultural resources may be impacted and/or NRHP-eligible. Although a CRM consultant can make professional recommendations, only SHPO and the involved agencies make final determinations.
- Historic properties are uncommon; however, agencies often require due-diligence background research and surveys to check for undocumented cultural resources. Most areas have never had a historic survey, so boots-on-the-ground is generally the only way to clear a project area. Archaeology is particularly challenging, since most resources are invisible below the ground surface.
- Regulated impacts are limited to changes to a historic property that negatively affects its NRHP-eligibility. However, agencies often focus on physical disturbance (direct effect) and alterations to the property’s viewshed, including newly-built aboveground components and tree-clearing (indirect effect). Not all indirect effects are considered “adverse effects” and even adverse effects can be minimized or mitigated.
You can learn more about the federal review process in the ACHP’s “A Citizen’s Guide to Section 106 Review” here and more about the WV SHPO’s specific guidelines here.