Guidance for Consultation with the State Historic Preservation Office under Section 106 of NHPA

As early as possible in the planning process, and prior to any funding, licensing, permitting or loan guarantee for a project by a Federal Agency, the Federal Agency or its applicant, must submit the project plans for review by the Pennsylvania Historical and Museum Commission, Bureau for Historic Preservation (BHP), which serves as the State Historic Preservation Office (SHPO), under the authority of Section 106 of the National Historic Preservation Act.

When a project is federally assisted or permitted, Section 106 applies, even if state permits, state funding or state properties are also involved or if the project is also an undertaking of a state institution or agency.  If the project has only state involvement and no federal funds or permits, it is reviewed only under the State History Code.

Review of the project is required to determine whether the project will have an adverse effect on any resources listed or eligible for listing on the National Register of Historic Places. BHP’s review extends to the entire project, whether licensed, permitted or funded in whole or in part by a Federal agency. Upon a determination of an adverse effect by BHP, the Federal Agency and/or its project applicant, if involved, shall immediately consult with BHP to discuss ways to avoid, minimize or mitigate the adverse effects.

Background
Section 106 requires that federal agencies take into account the effects of their undertakings on historic and archaeological resources eligible for or listed on the National Register of Historic Places.  Under the implementing regulations for Section 106 (36 CFR PART 800—Protection of Historic Properties), the federal agency will consult with the SHPO and other consulting parties and will seek the SHPO’s concurrence on findings and determinations.  The federal agency will either directly consult with the SHPO or delegate that consultation to a consultant and/or an applicant for a federal permit or federal funding.
The Federal agency, its applicant or authorized consultant, must make a reasonable and good faith effort to identify any significant historic resources within the project area. These resources may already be known or they may be found through a survey that is conducted to identify any undocumented/unknown resources in the project area.

For projects on federal lands (e.g., an air force or navy base), federal construction projects (e.g., an Army Corps of Engineers dam and reservoir) and other projects initiated by a federal agency, the responsible agency usually contacts the SHPO directly. However, on federal permits, such as an Army Corps of Engineers (COE) permit, or an application for federal funding sources, the applicant and/or the applicant’s consultants are obligated by the funding agency to submit project information directly to the SHPO for review.  Hence, the applicant and/or the applicant’s consulting firm or other contractor(s) may typically initiate the consultation.

But, regardless of whether the consultation is delegated, the federal agency still remains legally responsible for Section 106 compliance.  Therefore, the federal agency should be kept informed at all times, and final decisions are made by the agency.  In addition, the federal agency is also responsible for identifying other consulting parties, including any appropriate Native American groups who might attach religious and cultural significance to any historic or archaeological resources in the project area.

Example Project Requiring Consultation
An example of a typical, smaller-scale project that could require 106 review might be a commercial development that requires an Army Corps of Engineers (COE) permit due to wetlands and stream encroachments or other issues under the COE jurisdiction.  In such a scenario, the COE, the SHPO, and any other consulting parties, will be involved in the 106 compliance review for that project. Typically, the project details will come to the SHPO from the applicant and/or the agency or its contractors to start the consultation. In these situations, it is very important for the project sponsor/applicant to keep in mind that the sooner the consultation is initiated with our office and the federal agency, the sooner the Section 106 issues can be resolved. For these reasons, it is important for project sponsors/applicants to know which permits and funding sources will be needed as early as possible.  Early notification enables the consultation process with our office to begin at the start of a project. This timing offers a better chance of having a wide range of resolution alternatives when archaeological or historical structures issues are present. 

Consulting Parties
The federal agency is charged with identifying the appropriate participants with whom to consult and to clarify their roles. The organizations and individuals that Federal agencies must consult with are called “consulting parties.”  The objective is to bring these consulting parties into the process at an early point.  Consulting parties include the SHPO, federally-recognized Indian tribes, local governments, applicants and additional interested individuals and organizations who may ask to participate.

How to Consult with the SHPO
All initial project submissions for SHPO review under Section 106 must be in writing and should use the Bureau for Historic Preservation project initiation forms which can be obtained from our website at: Historic Preservation.  To access the form, follow the directions below.

Select “Forms and Guidance”.  When that page opens, look under the heading “Project Review Forms”.  Select “ER Submission Form” from that list.  Fill in all applicable entries, then print and mail the completed form to the address on its last page.  No electronic submissions are accepted at this time.
                 
All applicable items on the form must be submitted to enable review of the project for its potential effect on historic and archaeological resources.  The required information includes:

  • An explanation of what federal funds, permits, or licenses will be involved in the entire proposed project.  (If there is any state involvement in the project, please also explain what state funds, permits or licenses are involved. Please identify all applicable state or federal funding and permitting agencies involved and the specific federal or state program.)
  • A detailed written description of the project, including related activities that will be carried out in conjunction with the project.
  • Supporting project information
    • Project location on a U.S.G.S. 7.5 minute quadrangle map outlining the exact limits of the project;
    • Acreage of the project and proposed ground disturbance;
    • Current photographs of the project area
      Preliminary drawings or plans (site plans, floor plans, elevations) and work/project description;
    • Site plans of existing conditions;
    • Site plans of proposed development

Additional information which may also be required includes Pennsylvania Historic Resource Forms (HRS) for historic resources (buildings structures, historic districts, objects) dating to 50 or more years of age in the project area. This form, which must include information on the history, integrity and significance of the building, will enable the property to be evaluated using the criteria of the National Register of Historic Places.  This does not mean that the building is being nominated for listing in the National Register; rather,  it will only determine if the building meets the National Register criteria.  These National Register criteria are standards by which all properties are evaluated.

The HRS form and its instructions can also be downloaded from the Forms and Guidance page. There, the form can be found under “Above Ground Resources”. Under that heading, select “Historic Resource Survey Form”.  The form can be downloaded as a pdf or a Microsoft word document. Accompanying instructions can be downloaded from this list as well. Complete and submit the HRS form with the necessary mapping and photography.  
                           

Submit all forms to
Pennsylvania Historical and Museum Commission
Bureau for Historic Preservation 
Commonwealth Keystone Building, Second Floor
400 North Street
Harrisburg, PA 17120-0053

Unless other provisions have been made through Programmatic Agreements between the SHPO and Federal agencies or the agency who has federally-delegated authority to participate in Section 106, agencies/applicants will receive a written response within 30 days.

Our initial response may take one of the following forms, depending on the circumstances:

  • a determination of no resources and/or no effect for the project, indicating consultation with our office is complete;
  • a notification that historic structures and/or archaeological resources exist within the project area and that a survey or other investigation is necessary to evaluate the National Register eligibility of these resources;
  • a notification that, although no known archaeological sites exist within the project area, the physical setting of the project, combined with comparative information from similar settings nearby, suggests a high probability that archaeological sites exist within the project area and that a survey to locate these sites is required;
  • a notification that, although no known historic buildings, structures, districts, or objects exist within the project area, U.S.G.S. quadrangle maps show buildings present.  A survey to identify potential historic buildings, structures, districts, and objects is therefore necessary;
  • a determination that the project will have no adverse effect on known or newly identified historic and/or archaeological resources and that, unless plans change, consultation is complete;
  • a determination that the project will have an adverse effect on known or newly identified historic and/or archaeological resources and further consultation is required;
  • a notice that too little information was submitted to provide a review. In that case, an attached itemized checklist of types of information needed will be submitted along with the response.


Types of Consultation
Various types of consultation on any of the above may--as needed--take the form of face-to-face meetings with agencies, applicants and others; formal consulting party meetings; field views, exchanges of various types of information such as review of additional plans, modifications to the project; and additional letters or other forms of communication as necessary until all issues have been resolved.  When appropriate, the preparation of formal agreement documents will be necessary as well.

If sites, buildings, etc. are found to be eligible for the National Register and the project will have an adverse effect on them, the federal agency must notify the Advisory Council on Historic Preservation (ACHP) and the agency and/or the applicant will need to continue to consult with the BHP to identify ways to minimize or avoid these effects.

If adverse effects cannot be avoided or minimized, a memorandum of agreement (MOA) that describes a mitigation of adverse effects is prepared. This MOA spells out the stipulations for mitigation and would be signed by the lead federal agency, the SHPO (the BHP) and, in most cases, the applicant. 

The ACHP may or may not desire to be signatory, depending on the project and whether or not the 106 process is working as it supposed to and their direct assistance is necessary.  Consulting parties, including but not limited to relevant Indian tribes, also may be signatories when appropriate. When there is an adverse effect that cannot be avoided, then the 106 process should not be considered complete until the stipulations of the MOA have been met.

Contact Information for the Advisory Council for Historic Preservation
Advisory Council for Historic Preservation
Old Post Office Building
1100 Pennsylvania Avenue, NW, Suite 803
Washington, DC 20004

Phone:  202.606-8503
Fax:  202.606-8647
e-mail: 
achp@achp.gov
web site:  www.achp.gov

  Name Description
MS Word Documents Archaeological_Negative_Survey_Form.dot Archaeological Negative Survey Form
MS Word Documents Archaeological_Record_Disturbance.dot Archaeological Record of Disturbance
MS Word Documents Archaeological_Report_Summary_Form.dot Archaeological Report Summary Form
PDF Documents ArchaeologicalReviewRegions.pdf Archaeological Review Regions
PDF Documents ArchaeologyGuidelines.pdf Guidelines for Archaeological Investigation in Pennsylvania. Revised November 2008
PDF Documents ER_submission_form.pdf Project Review Form: Request to Initiate SHPO Consultation on State and Federal Undertakings
PDF Documents HistoricStructuresReviewRegions.pdf Historic Structures Review Regions
MS Word Documents Isolated Find_Non-site Form.doc Isolated Find/ Non-Site Form
PDF Documents Survey Guidelines for Pipeline Projects--Above Ground Resources June 2013.pdf Survey Guidelines for Pipeline Projects Above Ground Resources June 2013
PDF Documents Tutorial - Locating Topo Maps.pdf Instructions for map submissions