Information about Project Compliance and Section 106 Review for State & Federal Agencies

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Applicable Laws and Regulations

• Section 106 of the National Historic Preservation Act of 1966, as amended, and its implementing regulations 36 CFR Part 800, is the primary federal law regarding project review. 
• The Maryland Historical Trust Act of 1985, as amended, State Finance and Procurement Article §§ 5A-325 and 5A-326 of the Annotated Code of Maryland, is the applicable state law. 

To ensure consistency for projects with both federal and state involvement, MHT follows the Section 106 process in the review of state actions.  The Advisory Council on Historic Preservation provides useful online Section 106 guidance, archeology guidance, and offers formal training opportunities for Section 106 users. 

Certain local jurisdictions administer their own historic preservation review process.  Local reviews are handled independently from the Section 106 process, but may generate helpful information to inform Section 106 consultation.  MHT encourages state and federal agencies to coordinate the local review process in advance of Section 106 consultation, where applicable.  Contact the appropriate local jurisdiction for information on pertinent requirements.  

Requesting MHT Review of Your Project

MHT encourages agencies to initiate consultation early in project planning, to allow adequate time to successfully complete the review well in advance of construction.   The project review fact sheet lists the information agencies must provide to MHT.   Agencies may also use MHT’s optional Project Review Form.    MHT normally provides written comments within 30 days of receiving a complete project submittal; this often completes the Section 106 process.   Providing MHT with detailed and accurate project information greatly facilitates MHT’s review and response time.

Participants in the Consultation Process

Section 106 regulations (36 CFR 800.2) define the key participants in the review process.  It is the involved agency’s responsibility to invite relevant parties to engage in consultation, although some of these parties may decline if they choose.   Participants may include the following:
Agency official – the specific state or federal agency responsible for undertaking the project or providing funds, permits, or licenses for the project has the primary responsibility to consult with the other parties.

Advisory Council on Historic Preservation (ACHP) – the ACHP participates in the consultation for certain federal projects that may adversely affect historic properties.

State Historic Preservation Officer (SHPO) – MHT serves as the SHPO office for Maryland.  For projects that may involve multiple states, the National Conference of State Historic Preservation Officers (NCSHPO) provides contact information for SHPOs nationwide.

Indian Tribes – Although there are currently no state or federally recognized tribes in Maryland, Section 106 requires agencies to consult with federally recognized Indian Tribes for projects that may affect historic properties on tribal lands or may affect historic properties for which Indian tribes attach religious and cultural significance.  Indian tribes who reside outside the state may attach importance to historic properties located in Maryland.  The ACHP offers useful guidance on consultation with Indian tribes.  The Maryland Commission on Indian Affairs serves as the official statewide agency for Native Americans, supports activities that affect Native Americans in Maryland is a good source for information and contacts on Maryland Indians.   Further resources on tribal contacts include:

• The Department of the Interior’s list of federally recognized tribes issued on April 4, 2008, titled:"Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs":  http://www.narf.org/nill/resources/fr2008.pdf
• The National Park Service website which has a database searchable by tribal name, state name, county name, etc.:  http://home.nps.gov/nacd/
• The National Association of Tribal Historic Preservation Officers:  http://www.nathpo.org/mainpage.html  (There are currently no THPOs in MD)
• Maryland Commission on Indian Affairs:  http://www.americanindian.maryland.gov/

Local governments – Representatives of a local government with jurisdiction over the area where the project will occur are entitled to participate. For information on county and municipal historic preservation programs, Certified Local Governments, and local historic district or preservation commissions click here.  [Add link]

Applicants for state/federal assistance, permits, or licenses – the applicants for state or federal funds, permits or licenses have a key role in the consultation.   Ultimately, the involved state or federal agency remains responsible for ensuring compliance with applicable laws and regulations.

Additional consulting parties –organizations and individuals with a demonstrated interest in the project may also participate in consultation.  The parties’ interest may entail legal or economic relation to the project or affected historic properties (such as the owner of an affected resource) or relate to their concern for the undertaking’s effects on historic properties (such as a local historical society, Certified Heritage Area, or preservation advocacy organization.  To find possible interested organizations in your project vicinity click here [Add link]

The public – the views and interests of the public are important to inform agency project planning decisions.

Identifying Historic Properties

One of the key steps of the consultation process involves identifying cultural resources that may be affected by a project and evaluating their significance.  Maryland’s diverse cultural heritage encompasses a broad range of resources including historic buildings, archeological sites on land and underwater, historic districts, engineering structures, and objects.  MHT’s Research & Survey programs maintain extensive records and information on these resources, organized and available through the MHT Library and its associated GIS and databases.    Section 106 affords consideration to those cultural resources that are listed in or eligible for inclusion in the National Register of Historic Places.   Thus, determinations of eligibility are a critical step in the consultation process.  Agencies and recipients of agency assistance may need to undertake cultural resource investigations during project planning or hire consultants to perform those studies.

Survey and Evaluation Standards

MHT provides helpful standards and guidelines for completing:

• archeological studies
• architectural and historical investigations, and
• Determinations of Eligibility evaluation efforts. 

The National Park Service also has extensive guidance for undertaking evaluation, preservation and documentation studies. 

Stewardship of Historic Properties

State and federal agencies have the responsibility to ensure the appropriate stewardship of cultural resources under their ownership or care, as well as those that may be affected by state or federally assisted actions.   Proper project planning and sensitive design will help avoid and reduce adverse effects on historic properties.   When a project entails work on a significant historic building (rehabilitation, alterations, additions), new construction within a historic district, or other action that may affect a historic property, careful planning will help achieve project goals and address historic preservation concerns.  Considerable resources and guidance are available to inform the project planning and design process on the appropriate maintenance, care and treatment of historic properties, as well as on context sensitive design solutions: 

• SOI Standards for the Treatment of HP with Guidelines for Preserving, Rehabilitating, Restoring and Reconstructing Historic Buildings:  http://www.nps.gov/history/hps/tps/standguide/
• SOI Standards for the Treatment of HP and Guidelines for the treatment of cultural landscapes:  http://www.nps.gov/history/hps/hli/landscape_guidelines/index.htm
• Preservation Briefs:  http://www.nps.gov/history/hps/tps/briefs/presbhom.htm
• A checklist for rehabilitating historic buildings:  http://www.nps.gov/history/hps/tps/cheklist.htm
• NPS Online preservation education:  http://www.nps.gov/history/hps/tps/online_ed.htm
• Context sensitive design solutions for transportation projects:  http://www.sha.state.md.us/businesswithSHA/projects/ohd/mainstreet/MainStreet.pdf

Resolving adverse effects on historic properties

MHT seeks to prevent adverse effects on historic and archeological properties through consultation.  Sometimes adverse effects are unavoidable given project need, environmental or design constraints, emergency situations, or other requirements.   Adverse effects may include physical destruction of a resource, inappropriate alterations, introduction of visual or audible intrusions, neglect of a resource that leads to its deterioration, or transfer of a property out of state or federal ownership without adequate restrictions to ensure its long term preservation.   

The Section 106 regulations (36 CFR 800.6) establish a process for resolving adverse effects through further consultation among the involved parties and negotiation of a formal Memorandum of Agreement (MOA). The MOA stipulates specific measures the agency and/or project sponsor will implement to mitigate the undertaking’s adverse effects.   Mitigation measures may entail conducting archival research and recordation, archeological data recovery investigations, public outreach efforts, sensitive design development, landscaping, and other creative efforts.   Further guidance on preparing agreement documents may be found at the National Preservation Institute’s Standard MOAs and Stipulations:  http://www.npi.org/Stipulations.htm.

Finding a Consultant

State and federal agencies may need to hire a consultant to conduct cultural resources investigations during project planning, develop appropriate plans and specifications, or implement specific work on historic properties.   It is important for an agency to hire qualified personnel to perform the work, request bids from multiple firms for comparison, and seek references on the quality and past performance of a firm before making a final decision on services.  MHT’s Consultants Directory provides a searchable list of consultants by discipline and service.  

Inclusion in the directory is not a certification or endorsement of any particular consultant by MHT.

Who do I Contact?

MHT’s Project Review and Compliance Unit staff, comprised of a team of archeologists and architectural historians, handle the review of projects and provide a wide range of technical assistance to program clients.  See the staff list to contact the appropriate person for your agency or geographic region.