HUD programs support and facilitate the use of historic properties for affordable housing, economic development, and community revitalization. HUD encourages the rehabilitation of historic buildings and the preservation of irreplaceable resources like archeological sites that convey centuries of human cultural activity. The National Historic Preservation Act (NHPA), 16 U.S.C. 470 et seq., directs each Federal agency, and those Tribal, State, and Local governments that assume Federal agency responsibilities, to protect historic properties and to avoid, minimize, or mitigate possible harm that may result from agency actions. The review process, known as Section 106 review, is detailed in 36 CFR Part 800. Early consideration of historic places in project planning and full consultation with interested parties are key to effective compliance with Section 106. The State Historic Preservation Officer (SHPO) and/or Tribal Historic Preservation Officer (THPO) are primary consulting parties in the process. A qualified historic preservation consultant may assist with the technical components of the Section 106 review process.
Historic properties are those that are listed in or eligible for listing in the National Register of Historic Places (NR). The National Register is a list of districts, sites, buildings, structures, and objects that have been determined by the National Park Service to be significant in American history, architecture, archeology, engineering, and culture, at the local, state or national level. Generally, a property must be at least 50 years old to qualify, but there are exceptions. The grantee should consult the National Register database, existing state and local inventories, local historical and preservation organizations, and local planning departments to identify properties that are listed in or eligible for the National Register.
All assisted activities require Section 106 review except projects that are exempt or ‘categorically excluded not subject to’ under HUD regulations (24 CFR Parts 50 and 58) or that are determined by HUD to have “No potential to Affect Historic Properties” as defined at 36 CFR 800.3.
Compliance with Section 106 is achieved by following the procedures that the Advisory Council on Historic Preservation has outlined in 36 CFR Part 800.
The Section 106 Process consists of four basic steps. After determining the need to do a Section 106 review, the HUD official or Responsible Entity initiates consultation with statutory and other interested parties (Step 1), identifies and evaluates historic properties (Step 2), assesses effects of the project on properties listed on or eligible for the National Register of Historic Places (Step 3), and resolves any adverse effects through project design modifications or mitigation (Step 4). Note that consultation continues through all phases of the review.
Step 1. Initiate Consultation
The following parties are entitled to participate in Section 106 reviews: Advisory Council on Historic Preservation; State Historic Preservation Officers (SHPOs); federally recognized Indian tribes/Tribal Historic Preservation Officers (THPOs); Native Hawaiian Organizations; local governments; and project grantees. The general public and individuals and organizations with a demonstrated interest in a project may also participate as consulting parties. Participation varies with the nature and scope of a project. Refer to resources on this site for guidance on consultation, including the required timeframes for response. Consultation should begin early to enable full consideration of preservation options. See the SHPO website for state-specific guidance for consulting with them.
Use the When To Consult With Tribes checklist found in the appendix of this notice to determine if tribes should be invited to consult on a particular project. Use the Tribal Directory Assessment Tool (TDAT) to identify tribes that may have an interest in the area where the project is located.
Step 2. Identify and Evaluate Historic Properties
Define the Area of Potential Effect (APE). Gather information about known historic properties in the APE. Historic buildings, districts and archeological sites may have been identified in local, state, and national surveys and registers, local historic districts, municipal plans, town and county histories, and local history websites. Tribes may identify historic properties of religious and cultural significance to them. If not already listed on the National Register of Historic Places, identified properties are then evaluated to see if they are eligible for the National Register.
Step 3. Assess Effects on Historic Properties
Only properties that are listed on or eligible for the National Register of Historic Places receive further consideration under Section 106. Assess the effect(s) of the project by applying the Criteria of Adverse Effect. (See 36 CFR 800.5). Consider direct and indirect effects as applicable.
Step 4. Resolve Adverse Effects
Work with consulting parties to try to avoid, minimize or mitigate adverse effects. The Advisory Council on Historic Preservation must be notified and given an opportunity to participate in the consultation. Refer to 36 CFR 800.6 and 800.7. Resolution of adverse effects generally results in a Memorandum of Agreement that spells out how the adverse effects will be minimized and/or mitigated. If adverse effects cannot be satisfactorily mitigated, the HUD official or Responsible Entity may disapprove a project.
It is important to remember that the environmental review record (ERR) must show that Section 106 review was completed before approval is given to proceed with HUD assisted projects.
The environmental review record should contain documentation on one of these types of findings:
1. No Historic Properties Affected
2. No Adverse Effect
3. Adverse Effect
When do you consult with the Tribal Historic Preservation Officer (THPO) in lieu of the SHPO?
If the project occurs on tribal lands, you consult with the THPO in lieu of the SHPO if they have assumed the role of the SHPO on tribal lands. Otherwise, and on non-tribal lands, you consult with the THPO in addition to the SHPO. A party on non-tribal lands that may be affected by a project on tribal lands with a THPO may request that the SHPO participate.
HUD Guidance and Technical Assistance
Memos and Notices