Supporting the Section 106 Review Process

One of the many roles for all State Historic Preservation Offices (SHPOs), including Pennsylvania’s, outlined in the National Historic Preservation Act (NHPA) is to advise, assist, and consult on the review of federally assisted projects that have the potential to affect historic properties.  This is known as the Section 106 Review Process.

In Pennsylvania, the PA SHPO Environmental Review staff review over 4,500 federal submissions a year under this process.  That is a big number, especially when you consider it along with these complicating factors:

• These reviews involve 60 federal agencies and a much larger number of applicants that have been delegated authority for Section 106 compliance by the federal agencies.
• The rules, policies, training, and understanding of the 106 process varies widely between each of these federal agencies and their applicants, often requiring significant levels of SHPO staff education and support.
• The timeframe for SHPO review is 30 calendar days. If the SHPO doesn’t respond within 30 days, the federal agency is entitled to treat our lack of response as approval, even if we would not otherwise have approved the project.

Feeling the pressure, yet?

The Section 106 review process.

In the face of an increasing workload, the PA SHPO is always looking for tools to improve the Section 106 review process for both SHPO staff and the applicants. You may have read about some of our efforts in recent blog posts:

• Requiring the Project Review Form to ensure submission of complete documentation in a standardized format;
• Beginning to require electronic submission of resource data in CRGIS to eliminate data entry by SHPO staff while improving accuracy and efficiency of availability; and
• Digitizing of existing resource files to make information on resources in a project area readily available to agencies, applicants, and SHPO staff.

We continue to look for ways to improve our capacity to participate in the Section 106 process, including Pennsylvania’s Historic and Archaeological Resource Exchange, also known as PA-SHARE .

PA-SHARE will allow the submission and review of projects in an entirely electronic format and will largely eliminate the need of paper documentation for the 106 process by PA SHPO staff, agencies, and applicants. PA-SHARE is currently under development with an expected release date in 2020.

Partially in recognition of the need to support the PA SHPO and the 50 other SHPO offices across the country, the Advisory Council on Historic Preservation (ACHP), the independent federal agency responsible for oversight of the Section 106 process, issued an Action Plan to Support State and Tribal Historic Preservation Officers (SHPOs and THPOs) in July 2015.

The plan contains a series of action items, including:

• Clarifying circumstances where SHPOs/THPOs might use additional funding streams to improve ability to conduct Section 106 reviews and
• Providing information on appropriate circumstances where federal agencies can provide resources (funding, staffing, equipment, etc.) to SHPOs to assist with 106 reviews.

In accordance with the Action Plan, last year the ACHP issued: Guidance on Assistance to Consulting Parties in the Section 106 Review Process.

The guidance recognizes the importance of consulting parties in the process and encourages federal agencies to increase their support to SHPOs, outlining circumstances when the federal agency should reimburse the SHPO for activities conducted on the agency’s behalf. The guidance also recognizes other consulting parties that would benefit from agency assistance. This includes Tribes, local governments, community groups, and local historic preservation interests that help federal agencies consider historic preservation issues during project planning.

The guidance makes it clear that federal agencies are not obligated to pay consulting parties for their standard participation in the Section 106 process. Providing comments on findings of eligibility, effect, and resolution of adverse effect made by the federal agency is the role of consulting parties.

When the agency is asking the SHPO or other consulting party, however, to essentially serve as a cultural resources’ consultant by carrying out activities that are the federal agency’s responsibility under Section 106, federal reimbursement is appropriate. Examples provided include:

• Performing file work or a desktop survey of the project area
• Researching and making preliminary determinations of eligibility on an agency’s behalf rather than responding to an agency determination
• Providing an assessment of a project’s potential to affect historic properties, again rather than responding to an agency determination
• Conducting field work
• Conducting field monitoring
• Curating artifacts
• Carrying out mitigation measures
• Developing plans to conform with the Secretary of the Interior’s Standards and Guidelines

When performing these actions at the request of a federal agency, the SHPO (or THPO or any other consulting party) is entitled to payment for services rendered just like any contractor would be. The federal agency and the consulting party are urged to enter into an appropriate contractual agreement. The agreement should clearly identify the roles and responsibilities of the agency and consulting party and the source of funding to ensure transparency in the consultation process.

In addition to financial support of consulting parties, federal agencies may provide non-financial assistance in a variety of forms:

• Training on a relevant computer system;
• Per diem and transportation to allow for participation at consulting party meetings or conferences;
• Equipment or supplies needed to more effectively carry out responsibilities under Section 106; and
• Creating staff positions to serve as a liaison between the SHPO and federal agency, particularly in times of increased review.

The policy also states that the compensation to consulting parties does not always need to be on a quid pro quo basis. It can be voluntary on the part of the federal agency if the agency believes it will result in more timely and effective consultation. Compensation provided to the SHPO or other consulting party is not seen as a conflict of interest, as Section 106 is a consultative process and the final decision as to how a project will proceed is made by the federal agency. Finally, any decision to provide or take compensation should only be undertaken in consultation with appropriate legal staff and careful consideration of relevant laws and regulations.

In some cases, this support already exists in the PA SHPO office in the form of paid positions to support the review of certain federal projects (FHWA, OSM, and HUD) and federal disaster response and recovery activities (FEMA). With this direction from the ACHP, the PA SHPO will be looking for other opportunities to seek federal agency support of the Section 106 review process, possibly in association with our new electronic system PA-SHARE.

We urge local consulting parties to do the same and to find ways that federal agencies can provide them support for more effective participation in the Section 106 process.