Section 106 Review of Federal Projects
Section 106 of the National Historic Preservation Act of 1966 requires consideration of historic properties in the thousands of federal actions that take place nationwide each year. The law and regulations require federal agencies to consult with the State Historic Preservation Officer (SHPO) and/or Tribal Historic Preservation Officer (THPO) and give the Advisory Council on Historic Preservation (Advisory Council) an opportunity to comment before projects are implemented. The Section 106 process also provides for public input in the decision making.
The Section 106 Regulations, published in the Code of Federal Regulations at 36 CFR Part 800, are available on the Advisory Council’s website. The Advisory Council's website also includes the Section 106 Users Guide, which provides an explanation of the Section 106 process.
The Section 106 Review Process
1. Initiating Consultation: The federal agency must determine if Section 106 applies to a given undertaking and, if so, initiate consultation.
2. Participants in the Section 106 Process: The federal agency must identify all potential consulting parties, including the SHPO, THPO, local governments, applicants for federal assistance, interested parties, and the public.
3. Inviting Consulting Parties: The federal agency must invite parties to participate in consultation and provide basic information about the undertaking to all parties.
4. Defining the Area of Potential Effects (APE): The federal agency must identify areas where its project could directly, indirectly, or cumulatively affect historic properties. Identification of the APE is done prior to identifying historic properties.
5. Identifying Historic Properties: The federal agency must determine the area that will be affected by the project (i.e., the area of potential effects or APE) and gather information to determine which properties in the project area are listed in or eligible for listing in the National Register of Historic Places.
6. Assessing Effects on Historic Properties: The federal agency must determine how historic properties might be affected by the project.
7. Resolving Adverse Effects: The federal agency must explore alternatives to avoid or minimize adverse effects to historic properties. The federal agency must then reach agreement with the SHPO and/or THPO (and the Advisory Council in some cases) and all consulting parties on measures to resolve any adverse effects. If there is failure to reach agreement, the Advisory Council will notify and send advisory comments to the head of the federal agency.
Getting Started / Initiating Consultation
Federal agencies and/or applicants for federal assistance should initiate project review consultation by providing the following documentation about a proposed federal undertaking to our office.
A completed Section 106 Project Review Form (PDF), with all attached supporting documentation, including photographs of the project area, a USGS topographic map with the project area clearly marked, and an ArchSite map. ArchSite is an online inventory of all known cultural resources in South Carolina. ArchSite can be directly accessed at http://www.scarchsite.org/default.aspx.
Note: We do not require a Section 106 Project Review Form for telecommunication tower projects as long as a FCC Form 620 or 621 is completed.
Project Review Forms and supporting documentation will not be accepted via fax or e-mail. Incomplete Forms will be returned for additional information without review. Please be sure to indicate the appropriate federal agency and contact information on the Form. Contact the appropriate federal agency requiring consultation with the SHPO for this information. For Housing and Urban Development projects under 24 CFR 58, the local government is the responsible entity/federal agency.
Note: Projects involving the rehabilitation of a building listed in or eligible for listing in the National Register of Historic Places must also provide the Historic Building Supplement (PDF). Please see our Internet Resources for Rehabilitation Projects for guidance for work on historic buildings.
Requests for additional information: If we need additional information about a project our office may request archaeological surveys or investigations, photographs, architectural plans and specifications, comments from consulting parties, and/or site visits.
Our office has a 30 day review period from the date of receipt of all adequately documented project review forms and supporting documentation. Review time is often less than 30 days. If additional information is requested, the 30 day review period begins anew from the date of receipt of the new information. It is very important to fully complete the Project Review Form and/or Historic Building Supplement and submit all applicable supporting documentation in order to facilitate the review.
Participants in the Section 106 Process
Federal agencies are responsible for initiating Section 106 review and completing the steps in the process that are outlined in the regulations. They must determine if Section 106 applies to a given project and, if so, initiate review. Federal agencies are also responsible for involving the public and other interested parties.
Some federal agencies transfer some 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 State Historic Preservation Officer (SHPO).
Advisory Council on Historic Preservation
The Advisory Council on Historic Preservation is an independent federal agency established by the National Historic Preservation Act of 1966 whose regulations govern the Section 106 process. Please see http://www.achp.gov/ for more information.
State Historic Preservation Officer
The State Historic Preservation Officer (SHPO) coordinates the state’s historic preservation program, including consulting with federal agencies during Section 106 review. The SHPO represents the State’s interest in protecting South Carolina’s historic properties. The SHPO’s role in the Section 106 process is advisory and consultative.
Federal agencies are required to consult with federally recognized Indian tribes that may attach religious and cultural significance to a historic property even if the tribe is no longer living within the boundaries of South Carolina. The Section 106 regulations also provide for a federally recognized tribe to assume the role of the SHPO on tribal lands and appoint a Tribal Historic Preservation Officer (THPO) to consult directly with federal agencies during Section 106 review.
South Carolina has one resident federally recognized Indian tribe, the Catawba Indian Nation, represented by a THPO. The THPO represents the Catawba Indian Nation’s interest in protecting the tribe’s historic properties. The THPO’s role in the Section 106 process is advisory and consultative.
Please visit our Native American Heritage webpage for more information about the Catawba Indian Nation and other Federal and State Recognized Native American Indian tribes with ties to South Carolina. Visit the Advisory Council's website for more information about Consulting with Indian Tribes in the Section 106 Process, and the National Association of Tribal Historic Preservation Officers (NATHPO) website for a "best practices" guide to consultation.
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
Applicants for federal assistance, permits, licenses, and other approvals are entitled to participate as consulting parties in the Section 106 process. Please see the Section 106 Applicant Toolkit on the Advisory Council's website for more information and guidance.
Additional Consulting Parties
Individuals and organizations with a demonstrated interest in a project may participate as consulting parties. The Department of Archives and History’s Directory of South Carolina's Local History, Historic Preservation, and Cultural Organizations (PDF) includes names and addresses for many of the state’s local historical and preservation organizations. These lists are not comprehensive, but can help federal agencies begin to identify interested parties. Agencies should consider additional sources for identifying appropriate consulting parties, such as local governments, chambers of commerce, or colleges and universities.
The federal agency must provide an opportunity for the public to comment on each step of the Section 106 process. Members of the public interested in participating in Section 106 consultation should visit our Guidance for Citizens webpage.
Inviting Consulting Parties
While a letter and supporting information describing the proposed federal project is appropriate for the SHPO and some THPOs, this may not be appropriate means of invitation for other potential consulting parties. Local historical societies, for example, may not have any staff available to review project information. If an initial letter is sent to a party asking it to participate in Section 106 consultation, federal agencies should follow up with a phone call or an e-mail if no response is received from a potential consulting party within 30 days.
Federal agencies should share the following information with any potential consulting parties:Invitation to participate Description of the project Project location maps Project location photographs Description of federal involvement Contact information for federal agency and other appropriate agencies Request for specific information from the consulting partyIdentification of historic properties in the project area Participation in project discussions
The SHPO expects the federal agencies to exchange information about projects and historic properties with all interested parties under Section 106. All consulting parties should also agree to an open exchange of information.
Defining the Area of Potential Effects (APE)
Section 106 of the National Historic Preservation Act requires federal agencies to define and document the Area of Potential Effects (APE) in consultation with the SHPO. This requirement applies to any federal undertaking and should take place early in the review process. The South Carolina SHPO also uses Section 106 procedures as guidelines for consultation in certain state regulatory processes.Is the setting a rural or urban area? Is the surrounding landscape wooded? open fields? hilly? flat? What is current land use—developed or agricultural? If developed, how? Industrial, residential, commercial? Define size and scale of development. What are the views from the project area and toward the project area?
In the Section 106 process, the federal agency, or a representative of the federal agency, must identify historic properties and determine the effect of the proposed project on them. Thus, the reason for defining an APE is to determine the area in which historic properties must be identified so that effects to any identified historic properties can, in turn, be assessed.
According to 36 CFR 800.16(d), the Area of Potential Effects is the geographic area or areas 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.
Determining the APE is a hypothetical process that considers the interplay of the three factors bolded above.
The project setting is an important factor in defining the APE. Varying combinations of geographical location, topography, soils, vegetation, and other environmental factors increase or decrease the likelihood of a project having physical, visual, and auditory effects on historic properties.
Consider how various environmental factors influence the APE:
Example: With the update and expansion of the Blue River Hydroelectric Plant, the Light Bulb Power Company plans to install a new transmission line running from the plant to its substation 15 miles to the north. The line would run through a small state forest, agricultural land and the Green Land community. Part of the agricultural property that the line intersects belongs to Farmer Smith. His home was constructed in the 1880s and is part of a large farm complex.
APE: The project will have not only a direct effect on the transmission line corridor and the associated construction with the towers and lines, but it will indirectly affect the viewshed all along the corridor. The APE changes due to the topography of the area and the land use (flat agricultural land vs. forested areas).
Scale and Nature of the Undertaking If new construction—how large, how many stories, and how many square feet? What is the extent of the ground disturbance? Are access roads or staging areas needed? Are additions to or demolition of an existing building involved? Is rehabilitation involved—entire building or just a few elements? What is the scale of new construction in relation to the surrounding setting?
The scope of the project greatly affects the effort required to identify historic properties, and thus the way an APE is defined.
Consider different aspects of the scale and nature of undertaking when defining the APE:
Example: The Department of Housing and Urban Development (HUD) will rehabilitate a home at 456 Lovely Street in the Pretty Heights Neighborhood. HUD plans to repair the exterior siding, install new windows, and renovate the interior with new flooring, paint and appliances.
APE: The project will directly affect the home at 456 Lovely Street. Indirect effects could include the impact of the rehabilitation of the home on the surrounding neighborhood.
Key Points to Remember about the APE:The federal agency, in consultation with the SHPO and/or THPO, establishes the Area of Potential Effects (APE) in which identification efforts will occur. The APE is defined before identification actually begins, so it may not be known whether any historic properties are within the APE. The APE should include: all alternative locations for all elements of the undertaking all locations where the undertaking may result in ground disturbance all locations from which elements of the undertaking (e.g. structures or land disturbance) may be visible or audible; and all locations where the activity may result in changes in traffic patterns, land use, public access, etc.An APE may include areas that are not contiguous to the project tract, and may not be the same area of effect defined under the National Environmental Policy Act (NEPA).
Example: Light Bulb Power Company wants to build an addition to its hydroelectric facility on the Blue River. The addition would increase the hydroelectric facility’s electrical output. Upstream from the plant is a known archaeological site from the early days of settlement in the area. Across the Blue River from the Power Company site is the Blue River Bluff Historic District.
APE: The APE includes the direct effect of the proposed addition and the indirect effect to the surrounding environment and the view shed from the facility to nearby properties. The indirect APE would encompass views of the site from across the river as well as views of the site from the river.
Identifying Historic Properties
Historic properties include buildings, structures, objects, sites, and districts with significance in American history, architecture, archaeology, engineering, and culture. Historic properties are listed in or eligible for listing in the National Register of Historic Places.
The SHPO makes information about historic properties and cultural resources available to consultants and government agencies through:
SC Historic Properties Record (SCHPR) - Search all National Register and Selected Survey Records
National Register records - Search by county (through February 2013)
Statewide Survey of Historic Properties records
Historic Contexts and Survey Reports
Federal agencies and their applicants should search all sources of information for compliance-related projects. The Consultant's Guide to Survey and National Register Files (PDF) provides an overview of the information included in these sources and a step-by-step checklist for searching for properties that are listed in or eligible for listing in the National Register of Historic Places. Results from the search for historic properties must be provided to the SHPO with the initial project submission. The SHPO does not conduct research for the identification of historic properties.
Please note: Archaeological site information is managed and maintained by the South Carolina Institute of Archaeology and Anthropology (SCIAA). The SCIAA website contains information on how to access their site files and set up an appointment.
Assessing Effects on Historic Properties
The federal agency is responsible for identifying historic properties and making a determination of effect on those historic properties. The SHPO will concur or not concur with any recommendations or agency determinations. The ultimate goal of the review process is to reach a mutually agreeable determination of project effect.
Federal agency and SHPO concurrence with a determination of no historic properties affected generally concludes the review process and no further work is required.
A determination of no adverse effect is typically made when the federal agency, SHPO, and additional consulting parties have agreed to a set of conditions that will keep adverse effects from happening. Generally, these conditions become part of the federal undertaking or are permit conditions.
If the agency determines that a project will have an adverse effect upon a historic property, then the federal agency, the SHPO and/or THPO, consulting parties, and any interested parties should consult to determine the best way to resolve adverse effects. Once the means for resolving adverse effects are agreed upon, they are formalized in a Memorandum of Agreement (MOA).
Resolving Adverse Effects
An adverse effect is defined in 36 CFR 800.5(a)(1) as 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. Consideration shall be given to all qualifying characteristics of a historic property, including those that may have been identified subsequent to the original evaluation of the property’s eligibility for listing in the National Register.Physical destruction or damage to all or part of the property Removal of the property from its historic location Change of features within the property’s setting Transfer, lease, or sale of property out of federal ownership Visual, atmospheric, or audible intrusions Foreseeable effects that may occur later in time or farther removed in distance Cumulative effects
Adverse effects may include:
If a federal agency determines that a project will have an adverse effect, it must notify the Advisory Council on Historic Preservation of its determination. Adverse effects must be avoided, minimized, or mitigated. The resolution of adverse effects will result in the development of a Memorandum of Agreement (MOA) between the federal agency, the SHPO and/or THPO, and invited consulting parties.
For more information see the following webpages:
Guidance: Memorandum of Agreement and Covenant Templates
Examples of Mitigation for adverse effects