CULTURAL RESOURCE MANAGEMENT Federal Regulations


Relationship of Section 106 to Other Laws

from ACHP http://www.achp.gov/relationship.html

Federal agencies have responsibilities under a number of laws that may influence the way they carry out their Section 106 duties. Section 800.3 (b) of ACHP's regulations specifically encourages coordination of Section 106 responsibilities "with any reviews required under other authorities such as the National Environmental Policy Act, the Native American Graves Protection and Repatriation Act, the American Indian Religious Freedom Act, the Archeological Resources Protection Act, and agency-specific legislation."

However, compliance with one or more of these other statutes does not substitute for compliance with ACHP's regulations, 36 CFR Part 800, unless ACHP explicitly agrees that it does through execution of a Programmatic Agreement or approval of alternate procedures. Also, the regulations allow Federal agencies to comply with Section 106 through the use of the NEPA process and documentation, so long as the steps and standards of Section 800.8(c) of ACHP's regulations are met.

Several of the other Federal laws related to the National Historic Preservation Act (NHPA) with which agencies must comply are:

National Environmental Policy Act of 1969 (NEPA);
Archeological and Historic Preservation Act of 1974 (AHPA);
Archeological Resources Protection Act of 1979 (ARPA);
American Indian Religious Freedom Act of 1978 (AIRFA);
Native American Graves Protection and Repatriation Act of 1990 (NAGPRA);
and Americans with Disabilities Act of 1990 (ADA).

Agency-Specific Legislation

 

National Environmental Policy Act of 1969 (NEPA)

Under NEPA, agencies have broad responsibilities to be concerned about the impacts of their activities on the environment, including historic properties. To an extent, NEPA addresses some of the same concerns as NHPA, for instance regarding identification of irreversible effects.

Although Section 106 is a totally separate authority from NEPA—and is not satisfied simply by complying with NHPA—it is perfectly reasonable for agencies to coordinate studies done and documents prepared under Section 106 with those done under NEPA. ACHP's regulations provide guidance on how the NEPA and Section 106 processes can be coordinated (Section 800.8(a)). They also set forth the manner in which a Federal agency can use the NEPA process and documentation to comply with Section 106 (Section 800.8(c)).

 

Archeological and Historic Preservation Act of 1974 (AHPA)

If a project will affect historic properties that have archeological value, the AHPA may impose additional requirements on an agency. Notifying the Department of the Interior that you are doing something under AHPA does not constitute compliance with Section 106.

 

Archeological Resources Protection Act of 1979 (ARPA)

If Federal or Indian lands are involved, ARPA may impose additional requirements on an agency. ARPA:

 

Acquiring an ARPA permit does not constitute compliance with Section 106.

 

American Indian Religious Freedom Act of 1978 (AIRFA)

AIRFA affirms the right of Native Americans to have access to their sacred places. If a place of religious importance to American Indians may be affected by an undertaking, AIRFA promotes consultation with Indian religious practitioners, which may be coordinated with Section 106 consultation. Amendments to Section 101 of NHPA in 1992 strengthened the interface between AIRFA and NHPA by clarifying that:

 

  1. Properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization may be determined to be eligible for inclusion on the National Register.

     

  2. In carrying out its responsibilities under Section 106, a Federal agency shall consult with any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to properties described in subparagraph (A). [16 U.S.C. 470a (a)(6)(A) and (B)].

 

Native American Graves Protection and Repatriation Act of 1990 (NAGPRA)

For activities on Federal lands, NAGPRA requires consultation with "appropriate" Indian tribes (including Alaska Native villages) or Native Hawaiian organizations prior to the intentional excavation, or removal after inadvertent discovery, of several kinds of cultural items, including human remains and objects of cultural patrimony. For activities on Native American or Native Hawaiian lands, which are defined in the statute, NAGPRA requires the consent of the Indian tribe or Native Hawaiian organization prior to the removal of cultural items. The law also provides for the repatriation of such items from Federal agencies and federally assisted museums and other repositories.

NAGPRA defines Native American cultural items as:

 

In brief, NAGPRA requires agencies to:

 

1992 amendments to NHPA strengthened NAGPRA by encouraging "protection of Native American cultural items...and of properties of religious or cultural importance to Indian tribes, Native Hawaiians, or other Native American groups" [Section 112(b)(3)] and by stipulating that a Federal "...agency's procedures for compliance with Section 106...provide for the disposition of Native American cultural items from Federal or tribal land in a manner consistent with Section 3(c) of the Native American Graves Protection and Repatriation Act...." [Section 110(a)(2)(E)(iii)]

 

Americans with Disabilities Act of 1990 (ADA)

The ADA requires State and local government entities and places of public accommodation to make newly constructed buildings accessible to individuals with disabilities. It also mandates that altered portions of existing buildings and facilities be made readily accessible and barriers to accessibility in existing buildings and facilities be removed when it is "readily achievable." However, if following the usual standards would threaten or destroy the historic significance of a feature of the building, alternative standards which are contained in "Standards for Accessible Design: Americans with Disabilities Act Accessibility Guidelines" (ADAAG) may be used. The decision to use alternative standards must be made in consultation with the SHPO. If, during that consultation, it is determined that application of alternative standards would still threaten or destroy historic significance, ACHP must be consulted.

Agency-Specific Legislation

Some agencies also have legislation specific to themselves that may influence Section 106 review. Section 4(f) of the Department of Transportation Act, for example, generally bars a DOT agency from using a historic property for project purposes if there is any prudent and feasible alternative to doing so. This is a higher standard than that imposed by Section 106, but DOT agencies regularly coordinate their Section 4(f) review with their Section 106 responsibilities.

Other agency-specific legislation includes the Federal Land Policy and Management Act of 1977 (FLPMA), the National Forest Management Act of 1976 (NFMA), and the Public Buildings Cooperative Use Act of 1976 (PBCUA).


Updated May 1, 2002