Under the American Reinvestment and Recovery Act of 2009 (ARRA or Recovery Act), compliance with Section 106 requirements of the National Historic Preservation Act (NHPA) applies to most projects funded in-whole or in-part by ARRA. If a project involves ARRA-funded construction, then it is likely that Section 106 is applicable. The following information applies to both the State Energy Program (SEP) and Energy Efficiency Block Grant Program (EECBG). Grant recipients are urged to initiate Section 106 as early in the project planning process as possible.
Under Virginia’s ARRA funding, Section 106 of NHPA DOES apply to:
- Biomass Energy Grant Projects
- Economic Development Grant Projects
- Energy Efficiency Block Grant Projects
- Renewable Energy Grants for State Facilities
- Renewable Energy Grants for Local Government Facilities
- Renewable Energy Rebates for residential and commercial properties
Under Virginia’s ARRA funding, Section 106 of NHPA DOES NOT apply to:
- Energy Efficiency Energy Rebates for residential and commercial properties
- Appliance Rebate Program
What is the National Historic Preservation Act (NHPA)?
The National Historic Preservation Act (NHPA) was signed into law by President Lyndon Johnson in 1966, and is the primary federal law governing the preservation of cultural and historic resources in the United States. NHPA established the Advisory Council on Historic Preservation, State Historic Preservation Offices, the National Register of Historic Places, and the Section 106 Review Process. This law works to protect and preserve our Nation’s prehistoric and historic resources for present and future generations. Last amended in 2006, this law establishes a national preservation program and a system of procedural protections which encourage the identification and protection of cultural and historic resources of national, state, tribal and local significance.
What is Section 106?
Section 106 of the National Historic Preservation Act requires federal agencies, including the U.S. Department of Energy (DOE), which administers ARRA funds for energy projects, to consider the effects of their actions on historic properties prior to the expenditure of these funds. The Section 106 review process is intended to ensure that any potential conflicts between the project activities and historic preservation values are identified early in project planning when the widest range of alternatives is possible. Section 106 sets forth a process of consultation with the State Historic Preservation Officer (SHPO) and other stakeholders to resolve any conflicts identified. Therefore, to meet these requirements, an entity receiving ARRA funds must identify historic properties, consider the potential effects the proposed action may have on these, and if an adverse effect is found, consultation must continue on ways to reduce, avoid, or mitigate any adverse effects. Section 106 does not mandate a particular result; however, it does provide a meaningful opportunity to resolve potential conflicts.
Compliance with Section 106
The U.S. Department of Energy has authorized the Virginia Department of Mines, Minerals and Energy (DMME) to work with ARRA energy project grantees to initiate the Section 106 review process and to consult with the State Historic Preservation Office. In Virginia, the State Historic Preservation Office (SHPO) is the Department of Historic Resources (DHR), headquartered in Richmond. To comply with Section 106, applicants for certain State Energy Program (SEP) Grants and Energy Efficiency Block Grants (EECBG) should begin the review process, by completing the application contained in the document called “Requesting a Project Review from the Virginia Department of Historic Resources for State Energy Program Grants”. This document is available on the DMME website or for download on the website of the Department of Historic Resources (DHR) (www.dhr.virginia.gov). The DHR web site also provides further information about the Section 106 review process.
The Project Review Application Form
Section I of the Project Review Application Form requests project and contact information. It also requires that you provide a USGS topographic map showing the location of the project. Maps can be obtained from the websites noted on the Application Form.
Section II of the Form refers to projects that may be exempt from SHPO Review. The U.S. Department of Energy, the Department of Mines Minerals and Energy and the Department of Historic Resources have agreed that some projects do not have the potential to cause effects on historic properties and therefore do not require review under Section 106. These exempted projects are listed in “Attachment A, SEP and EECBG Undertakings Exempt from Section 106 Review”. For those projects that are exempt, Section II of the Project Review Application Form requests the type of project and the section number from Attachment A. For those projects covered by Section II, the grantees must sign and date the form and submit it to the attention of Department of Mines, Minerals and Energy at 1100 Bank Street, Washington Building, Eighth Floor, Richmond, VA 23219.
All other projects must complete Section III of the Project Review Application Form, and submit it to the attention of Ethel Eaton, Department of Historic Resources, 2801 Kensington Avenue, Richmond, VA 23221, or via e-mail at: firstname.lastname@example.org.
Once the application has been reviewed by the Department of Historic Resources (DHR) and DHR has responded, a copy of DHR’s response must be provided to the Department of Mines, Minerals and Energy as evidence of compliance with Section 106.
The Section 106 review process will be considered complete for the applicant, if the DHR responds either that 1) no historic properties will be affected; or 2) the effect will not be adverse, if an historic property is present and it will be affected.
However, if DHR agrees that the applicant’s project will, in fact, pose an adverse effect to historic properties, the U.S. Department of Energy (DOE) will need to be informed. While an adverse effect will not stop a project, it will entail a more lengthy process of Section 106 consultation to reach agreement on ways to reduce, avoid, or mitigate those effects. Further, grant recipients should be advised that Section 110(k) of the National Historic Preservation Act may bar the DOE from providing federal assistance when an adverse effect has occurred before the Section 106 process is complete.
Other Frequently Used Resources:
For more information on the National Historic Preservation Act and Section 106, please visit the following informational sites:
The National Historic Preservation Act of 1966, as amended: http://www.achp.gov/nhpa.html
Article from Wikipedia: http://en.wikipedia.org/wiki/National_Historic_Preservation_Act_of_1966
Description of the NHPA from the National Trust for Historic Places: http://www.preservationnation.org/resources/legal-resources/understanding-preservation-law/federal-law/nhpa.html
Description of Section 106 of the National Historic Preservation Act from the National Trust for Historic Places: http://www.preservationnation.org/resources/legal-resources/understanding-preservation-law/federal-law/section-106.html
Working with 106 from the Advisory Council on Historic Preservation (ACHP): http://www.achp.gov/work106.html
Section 106 Regulations Section-by-Section, Questions and Answers from ACHP: http://www.achp.gov/106q&a.html
Helpful Site Prepared by the Michigan Historical Center: http://www.michigan.gov/documents/hal_mhc_shpo_EZ106_115473_7.pdf
Link to the Virginia Department of Historic Resources: http://www.dhr.virginia.gov/
Link to VA Department of Mines, Minerals and Energy: http://www.dmme.virginia.gov/
Point of Contact: For questions on Section 106, contact: Robin Jones, VA Division of Energy, 804-692-3224, email@example.com