SECTION 106 PARTICIPANTS: ROLES AND RESPONSIBILITIES
FHWA has the legal responsibility for compliance with Section 106 when:
- Providing financial assistance for a project or program, or
- A project requires an approval from FHWA.
Section 106 of the National Historic Preservation Act of 1966 (NHPA) requires the Federal agency to:
- Take into account the effect of its actions on historic properties, and
- Afford the ACHP an opportunity to comment on such actions.
The Section 106 regulations lay out certain requirements for Federal agencies to consider how their projects may affect historic properties and measures to avoid or minimize resulting impacts that are adverse. Federal responsibilities under this process include:
- Identifying and inviting appropriate parties to consult as part of the Section 106 process.
- Carrying out the four-step Section 106 process set out in regulations.
- Taking historic preservation concerns into account.
- Ensuring the confidentiality of information about the location, character, or ownership of a historic property under circumstances set out in Section 304 of the NHPA.
The FHWA Division Office (DO) typically works with an applicant, such as a State DOT, to fulfill FHWA’s Section 106 obligations. Though some of the day-to-day tasks associated with Section 106 compliance may be carried out by an applicant, FHWA remains responsible for ensuring that the overall purpose of Section 106 is met. An Environmental Protection Specialist (EPS) within the DO normally oversees compliance with Section 106, as well as other environmental requirements. When necessary, the EPS may help facilitate discussions to resolve disputes over Section 106 findings and decisions. FHWA also has a Federal Preservation Officer (FPO) at its headquarters in Washington, D.C., who is available to provide FHWA DOs guidance and assistance in all matters related to Section 106 compliance.
Since the Section 106 process relies on consultation among the various parties, FHWA should ensure that the appropriate consulting parties are identified and included early in project development or the project planning stage while options for project actions or alternatives are still open. The consultation process should be seen as an opportunity to collect information important to understanding the historic significance of a place and potential impacts, as well as a chance for those with an interest in the historic properties to express their views. The consulting parties identified by FHWA will have important roles to play in each step of the process, including identifying historic resources, evaluating potential project impacts, and finding ways to mitigate any adverse effects. Read more on the Steps in the Section 106 Process. It is, therefore, important that these parties are identified and included in the process from the outset.
Section 304 of the NHPA protects certain sensitive information about historic properties from disclosure to the public when such disclosure could result in a significant invasion of privacy or damage to the historic property, or impede the use of a traditional religious site by practitioners. It is the legal responsibility of FHWA to withhold such information gathered during the course of the Section 106 process from general disclosure.
If more than one Federal agency is involved in a project, the agencies may designate a lead Federal agency to act on their behalf and fulfill the collective Section 106 responsibilities for the agencies. Other Federal agencies commonly involved in FHWA projects include the U.S. Army Corps of Engineers and land managing agencies, such as the Bureau of Land Management, U.S. Forest Service, or National Park Service. Usually the Federal agency with the largest commitment serves as lead while the remaining Federal agencies continue to serve in a consultative role.
DELEGATION OF SECTION 106 RESPONSIBILITIES
In specific situations where they are applicants for FHWA funds or approvals, State DOTs may be delegated certain aspects of the Federal requirement for Section 106 compliance. An executed Programmatic Agreement (PA) is required to formally delegate determinations and findings to the State DOT, and can allow the applicant agency to carry out certain tasks of the Section 106 process without FHWA involvement. With the exception of full National Environmental Policy Act (NEPA) assignment pursuant to 23 U.S. Code (USC) 327, however, FHWA remains responsible for ensuring the Section 106 regulations are followed in good faith. These formal agreements delegating aspects of the Federal role in Section 106 compliance take one of two forms: statewide PAs and NEPA Assignment. In all cases, FHWA is ultimately responsible for engaging Federally recognized Tribes in consultation given the Federal government’s role with Tribes as sovereign nations.
Statewide PAs in many states administratively delegate the responsibility to make some Section 106 findings to the State DOT without FHWA DO involvement. When these agreements are executed among the FHWA DO, State DOT, SHPO, and ACHP, the FHWA DO is relieved of many of the day-to-day tasks of the Section 106 process but remains responsible for ensuring the overall purpose of Section 106 is met. PAs improve decision-making and advance efficient project delivery, provide expedited timeframes in specified situations, and/or identify activities that have minimal potential to affect historic properties (and therefore do not require further review under Section 106). It is important that the FHWA DO know whether its state has such an agreement and the extent of any delegated steps. See Statewide Section 106 Programmatic Agreements for more information. FHWA DOs should contact the FPO for guidance when contemplating a new, or updating an existing, program-level Section 106 PA.
Pursuant to 23 U.S. Code (USC) Code 327, NEPA Assignment is the other vehicle for formal assumption of the Federal role in NEPA and related environmental statutes, including Section 106. In NEPA Assignment, State DOTs have assumed full legal responsibility for compliance, serving as the Federal agency under the Section 106 process. In these states, the FHWA DO is only involved in the Section 106 process as stipulated in the state’s NEPA Assignment Memorandum of Understanding (MOU), but FHWA retains legal responsibility for government-to-government consultation with Tribes. For additional resources on Section 106 requirements for tribal consultation see Additional Information.
For questions or feedback on this subject matter content, please contact David Clarke.