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Cultural Resources Section 106 of the National Historic Preservation Act (NHPA) requires a Federal agency with jurisdiction over a federal, federally assisted, or federally licensed undertaking to take into account the effects of the agency's undertakings on properties included in, or eligible for listing in, the National Register of Historic Places. The National Register of Historic Places (NRHP) is a register of historic and prehistoric sites, buildings, districts, structures, and objects significant in American history, architecture, archeology, engineering, and culture that is maintained by the Secretary of the Interior. Sites that are prehistoric (prior to 1542 in the United States) or are historic are eligible for listing in the NRHP. The U.S. Army Corps of Engineers (USACE) established procedures found at 33 CFR Part 325, Appendix C in 1990 for fulfilling requirements set forth in the NHPA, other applicable historic preservation laws, and Presidential directives as they relate to the USACE regulatory program. After Appendix C was published in the Federal Register, the NHPA was amended in 1992 and revised in 2000 and 2002 and amended again in 2004. The USACE published Interim Guidance in 2005 and 2007, and is currently using these procedures to comply with Section 106 of the NHPA. For authorization under nationwide, regional, or programmatic general permits, prospective permittees must submit a pre-construction notification to the USACE (even if pre-construction notification is not otherwise required) if the project may affect any historic properties listed, determined to be eligible for listing, or which the prospective permittee has reason to believe may be eligible for listing in the NHRP. Information on the location and existence of historic resources can be obtained from the State Historic Preservation Officer (SHPO), Tribal Historic Preservation Officer (THPO) and the NRHP (33 CFR 330.4(g)). For activities that may affect historic properties listed in, or eligible for listing in, the NRHP, then the notification must state which historic property may be affected by the proposed work and include a vicinity map indicating the location of the historic property as well as any other information required by the general permit. Determinations for eligibility for listing in the NRHP are made by the USACE and the SHPO or THPO for projects on tribal lands. In cases of disagreements regarding historic property eligibility between the USACE and the SHPO or THPO, the National Park Service (NPS) has the final decision. All sites are potentially eligible and retain legal protection under Section 106 until it is determined otherwise. Permittees may not begin work until notified by the USACE that the requirements of the Section 106 of the NHPA and 33 CFR Part 325, Appendix C have been satisfied and that the activity is authorized. Individual Permit applications are reviewed on a case-by-case basis by the USACE for potential effects to prehistoric or historic properties. Permit applicants should provide information to the USACE that addresses whether a proposed project may affect historic properties listed, determined to be eligible, or which the prospective permittee has reason to believe may be eligible for listing, in the NHRP. Permittees may not begin work until notified by the USACE that the requirements of the Section 106 of the NHPA and 33 CFR Part 325, Appendix C have been satisfied and that the activity is authorized. Letter of Permission procedure general conditions provide that if a known historic property would be encountered, the permittee shall not conduct any work in the permit area that would affect the property until the requirements of 33 CFR Part 325, Appendix C, have been satisfied. If a previously unknown historic property is encountered during work authorized by an LOP issued under this procedure, the permittee shall immediately notify the USACE and avoid further impact to the site until the USACE has verified that the requirements of 33 CFR Part 325, Appendix C, have been satisfied. Applicants must notify the USACE if any historic properties listed, determined to be eligible, or which the prospective permittee has reason to believe may be eligible for listing in the NHRP might be affected by, or is in the vicinity of, the project and must not begin work until notified by the District Engineer that the requirements of the Section 106 of the NHPA and 33 CFR Part 325, Appendix C have been satisfied and that the activity is authorized. In some cases an archaeological survey may be required by the USACE to determine the presence or absence of historic properties, identify and describe historic properties that are present, and provide conclusions regarding potential impacts to historic properties in areas that have not been recently professionally surveyed for historic properties. Data collection may include background research, oral history reviews, and sample field investigation such as walking the site, shovel testing, and trenching. States establish archaeological survey standards and qualifications for conducting surveys in the state. Standards for the State of Colorado, Colorado Historical Society, are available at http://www.coloradohistory-oahp.org/crforms/pdf/1527.pdf. Standards for the State of New Mexico, New Mexico Historic Preservation Division are available at http://www.nmcpr.state.nm.us/NMAC/parts/title04/04.010.0015.htm. Standards for the State of Texas, Texas Historical Commission, are available at http://www.thc.state.tx.us/rulesregs/rrother.shtml. 36 CFR Part 800 Appendix A sets forth the criteria that will be used by the Advisory Council on Historic Preservation (ACHP) to determine whether to begin a Section 106 review. The ACHP may choose to exercise its authorities under Section 106 of the NHPA to participate in an individual project. The ACHP is likely to enter the Section 106 process when an undertaking has substantial impacts on important historic properties; presents important questions of policy or interpretation; has the potential for presenting procedural problems; or presents issues of concern to Indian tribes or Native Hawaiian organizations. The lead federal agency must afford the ACHP a reasonable opportunity to comment on undertakings on properties included in or eligible for listing in the NRHP. The ACHP is an independent federal agency charged with advising the President and Congress on historic preservation matters and administering the provisions of Section 106 of the NHPA. The SHPO is an official appointed by the Governor to administer the state historic preservation program. The THPO is an official appointed by the tribe to assume the SHPO role. The SHPO or THPO consults and assists federal agencies in identifying historic properties, assessing effect upon them and considering alternatives to avoid or reduce those effects. NHPA Section 106 – Historic Properties and Tribal Consultation |