1. National Historic Preservation Act
Presentation 5: Practical Reality

2. How does it actually work?
Process is dictated by the regulations at 36 CFR Part 800.
To satisfy the “take account of” requirement, they require a process of consultation between the federal agency and the SHIPO, THPO, local governments, applicant, and other interested persons, like the public.
Main steps are:
Federal agency official determines whether an undertaking exists
If it does, the Fed agency official determines the “area of potential effect” (APE) of the undertaking
Then, the Fed agency official determines whether historic properties are present in the APE
This usually involves two KEY steps:
Identification – for archaeology, this means a survey
Evaluation of whether the identified properties meet the National Register criteria– for archaeology, this means a more detailed investigation to determine whether
Then, Fed agency determines whether the historic properties will adversely affected by the undertaking
If so, can the undertaking be modified to avoid the adverse effect or is there some mitigating action that can be performed?
For archaeological sites, mitigation is usually through recovery of the significant data from the site
Throughout this process, as long as there is an undertaking, the Fed agency is required to consult with the SHPO and, or THPO and certain other entities as appropriate
This consultative process is at the heart of the Section 106 process
Consultation, and compliance, is documented by final production of an MOA
Advisory Council gets involved in the cases under certain circumstances, such as to resolve disputes among interested parties.
Note that the Fed agency CAN ALWAYS proceed with its project regardless of anyone else’s views, as long as they follow the process

3. Observations on Section 106
It is this Sec. 106 process that generates most of the contract archaeology that public archaeologists do
If agency does not comply with NHPA, the ACHP will send them a letter indicating that they have broken the law by “foreclosing the Council’s opportunity to comment”
ACHP cannot assess penalties, but the agency can be sued by the public and if they have not complied, they will probably lose
Section 106 case law is fairly limited
You can read it in a day
The 36 CFR 800 recently (10 yrs ago) withstood largely unscathed a massive assault by the National Mining Association and the cell phone industry

4. Practical Reality of Section 106
Most agencies have their own internal, written policies
Agency employees and contractors should know what those policies are (although they can be hard to find)
SHPOs and THPOs are political appointees who have predictable problems dealing with public opinion, political pressures, and corporate influences
Many agencies comply with Sec. 106 reluctantly; some barely comply at all

5. What actually happens when there is an undertaking?
Fed agency sends letter to SHPO/THPO (and possibly other interested parties) outlining project, defining APE, and explaining plans for complying with Sec. 106
Agency should consult about appropriate archaeological methods, among other issues
Agency or its delegate hires contractors to perform survey and evaluation of sites
Archaeologists conduct an appropriate survey
Potentially significant sites are evaluated for their eligibility for the National Register
There are books and articles on how to do this
If necessary, data recovery excavations might take place
There is a guidance on how to do this published by the ACHP

6. Identification & Evaluation
How do you perform “identification”?
Legal standard: A reasonable and good faith effort
Does this mean you have to find every site?
Consult on methods, but what are the conventions?
How do you evaluate a site?
Use of “historic contexts”
Many states and agencies have developed historic contexts as part of state historic planning process
States are supposed to update their plans every 5 years