Project/Section 106 Review
What is the Section 106 process?
Federal laws and regulations, starting with the National Historic Preservation Act (NHPA) of 1966, are what drive modern cultural resource practices. Section 106 of the NHPA is the most important part. The original wording requires only that Federal agencies take cultural resources (including archeological sites) into account when planning ground-disturbing projects. Other laws and regulations have been passed in the years since, producing a detailed set of procedures that have come to be known as the “Section 106 Process.” A summary of Section 106 regulations and how to use them may be found on the web site of the Advisory Council on Historic Preservation (ACHP).
What is the Section 106 bottom line?
The bottom line is: all federally funded or permitted projects must be reviewed for impacts to cultural resources.
Greg Williamson, Review and Compliance Officer
What sorts of projects are federally funded?
Federally funded projects include levees developed by the U.S. Army Corps of Engineers and highways funded by the Federal Highway Administration through the Mississippi Department of Transportation (MDOT). Federal funding can also include less obvious projects such as those developed with money provided by the U.S. Department of Housing and Urban Development (HUD) through Community Development Block Grants (CDBG). These grants are administered through the Mississippi Development Authority (MDA), but since the source of funding is federal, Section 106 regulations apply. Communities often find that projects such as waste water treatment improvements fall under Section 106.
How about federally permitted projects?
The most commonly encountered permits are those issued by the U.S. Army Corps of Engineers (COE), the Environmental Protection Agency (EPA), the Federal Energy Regulatory Commission (FERC) and the Federal Communications Commission (FCC). COE permits generally involve projects such as bridges, pipeline crossings over streams, and projects that involve changes to stream channels or flood plains. FERC permits are required for natural gas pipelines and related facilities, while FCC permits are issued for cell towers. Housing and Urban Development (HUD), Rural Development Agency (RDA), and Federal Deposit Insurance Commission (FDIC) often issue loans and permits for housing rehabilitation.
Who reviews the projects?
Each state has a State Historic Preservation Office and a staff of archaeologists, architectural historians, and technical preservation specialists. The Mississippi State Historic Preservation Officer (SHPO) is H.T. Holmes, Director of the Mississippi Department of Archives and History (MDAH). Here is a list of MDAH staff involved in cultural resource assessments.
When should I contact the Mississippi State Historic Preservation Office?
The Mississippi SHPO should be contacted as early as possible in the project development process. SHPO staff can offer guidance and help to avoid known archeological sites or areas likely to contain sites. Also, contacting us early will allow us to determine if the building you are working on is listed or eligible for listing for the National Register of Historic Places.
How do I submit a project for review?
The Mississippi SHPO will accept project submissions by mail. Projects mailed by the U.S. Postal Service should be addressed to:
Review & Compliance
MDAH Historic Preservation
P.O. Box 571
Jackson, MS 39205-0571
Projects sent by FedEx or other hand delivery service should be addressed to:
Review & Compliance
MDAH Historic Preservation
100 South State Street
Jackson, MS 39201
How long does a review take?
By law, the Mississippi SHPO is allowed 30 days for review. Most reviews are completed in one to three weeks. Projects are date stamped and reviewed in the order that they arrive. If the information provided to MDAH is incomplete, or if additional information is required to complete our review, the review period may be extended an additional 30 days, once the additional information is received.
What is the outcome of a structural review?
After reviewing the photos and scope of work the SHPO will determine the following:
- The National Register eligibility of the building or structure
- If found to be eligible, the effect of the project on the building or structure.
If the structure is found to be not eligible for the National Register, the project may proceed without further review. If the structure is found to be eligible, any work performed on the structure must meet the Secretary of the Interior’s Standards for Rehabilitation.
What is the outcome of an archeological review?
The SHPO Archeologist performs a cultural resources assessment, examining archeological site files, maps, and other background information for the project area. If in his/her judgment, the proposed project area has low potential for containing archeological sites, a clearance letter is sent and the process is complete. If, on the other hand, the area has good potential for containing sites or if recorded sites are present, a letter requesting an archeological survey is sent.
Who pays for the survey?
In the case of federally funded projects, the responsible federal agency pays for the survey and for any additional investigations that ultimately might be necessary. Cultural resource costs associated with federally permitted projects are the responsibility of the developer.
What if no sites are found?
If the consultant finds no evidence of archeological sites, a report describing the survey investigation is submitted for review. If the fieldwork and report are judged by the SHPO Archeologist to be adequate, a clearance letter is sent and the process is complete.
What if something is found?
If the consultant finds an archeological site (or sites) within the project area, a recommendation will be made for systematic archeological testing (referred to as a Phase II investigation). Testing generally involves controlled excavation of several (usually small) test units with the objective of determining if the site is significant. At the conclusion of Phase II testing, two outcomes are possible. If the site is not considered to be significant and the testing procedures and report are judged by the SHPO Archeologist to be adequate, a clearance letter is sent and the process is complete. If the site is judged to be significant, then the process moves to mitigation (referred to as a Phase IV investigation). At any stage, consideration can be given to altering the proposed project to avoid archeological sites.
Who pays for the testing?
As was the case with Phase II surveys, federally funded projects are paid for by the responsible federal agency. In the case of federally permitted projects, Phase III testing costs are the responsibility of the developer.
What makes a site significant?
This is the key question, as not all sites are significant. Significance is determined by the four criteria (A, B, C, and D) for listing in the National Register of Historic Places, all of which have their roots in the evaluation of buildings. They are Criterion A: association with an important historical event; Criterion B: association with an important historical person; Criterion C: historically important design/construction; and Criterion D: potential to yield important historical or archeological information. Not surprisingly, most archeological sites that are found to be significant fall under Criterion D because, with a few notable exceptions, it is very difficult to associate archeological sites with specific events, persons, or types of design/construction.
What happens if a site is found to be significant?
If a site is determined to be significant, it is said to be an “eligible” property, meaning that it is eligible for listing in the National Register of Historic Places. If the project cannot be modified to avoid the site, then the damage caused by construction must be mitigated. This is usually accomplished through major data recovery excavations, which are designed to recover the information contained in the site prior to its destruction. Plans for excavation are coordinated through the Mississippi SHPO and the funding/permitting federal agency through development of a Memorandum of Agreement (MOA).
Who pays for the data recovery or salvage excavations?
As was the case with Phase I surveys and Phase II testing projects, federally funded projects are paid for by the responsible federal agency. In the case of federally permitted projects, Phase III mitigation/data recovery excavation costs are the responsibility of the developer.