What is Section 106?

Section 106 of the National Historic Preservation Act of 1966 (NHPA) requires federal agencies to consider the adverse effects of a proposed undertaking on historic properties through consultation.  Historic properties are defined by the regulations implementing Section 106 of the NHPA (36 CFR 800) as any prehistoric or historic district, site, building, structure, or object, or properties of traditional religious or cultural importance to an Indian tribe that are included in or eligible for inclusion in the National Register of Historic Places (NRHP).

To assess the effects on historic properties, the Section 106 regulations establish a four step process: 1) initiate the Section 106 process; 2) identify and evaluate NRPH eligibility of historic properties; 3) assess adverse effects; and 4) resolve adverse effects. If adverse effects on historic properties are anticipated, agencies must implement measures to avoid, minimize, or mitigate those adverse effects.
When the potential effects on historic properties are complex, involve large land areas, and cannot be fully determined prior to approval of an undertaking, an agency’s obligations under Section 106 are satisfied by negotiation and execution of a legally binding agreement called a Programmatic Agreement.  A Programmatic Agreement may establish a process for phased identification and evaluation of historic properties (36 CFR § 800.4(b)(2)), as well as a process for the resolution of adverse effects on historic properties from certain complex project situations (36 CFR § 800.14(b)).  The phased process in the Programmatic Agreement is customized based on the undertaking. 

Throughout a Section 106 consultation, including during development of a Programmatic Agreement, the federal agency is required or encouraged to consult with numerous parties, including but not limited to the State Historic Preservation Officer, federally recognized tribes, consulting parties with a demonstrated interest, and the public.

The Section 106 regulations recognize that the views of the public are essential to informed decision-making in the Section 106 process. The level of public involvement is determined on a project-by-project basis by the federal agency implementing Section 106, and should be commensurate with the complexity of the undertaking, the effects on historic properties, the public interest, and other factors.  In addition, the Section 106 regulations require the agency to provide the public information at Step 2, identification and evaluation of NRHP eligibility of historic properties, and Step 3, assessment of effects on historic properties. 

DOE’s Section 106 Process

DOE is committed to conducting a thorough and open review of the Undertaking under Section 106. Accordingly, DOE has consulted with the California State Historic Preservation Office; a federally recognized tribe, the Santa Ynez Band of Chumash Indians; and numerous non-federally recognized tribes. DOE has also invited many other interested parties to participate in consultation throughout the Section 106 process.
DOE has previously sought public comment on the Section 106 identification of historic properties through the National Environmental Policy Act (NEPA) process, specifically by inviting comments during the scoping meetings and by describing the identified sites and DOE’s intention to use a Programmatic Agreement in the Draft Environmental Impact Statement (EIS) (available at http://www.ssflareaiveis.com/documentation.aspx).  DOE also invited comments during the public comment period and public hearings on the Draft EIS. DOE will specifically respond to comments received on those matters through the comment response document that will be published with the Final EIS.

The Proposed Programmatic Agreement

Justification for Using a Programmatic Agreement: DOE has determined that a Programmatic Agreement is appropriate because:

Purposes of the Programmatic Agreement: Through the Programmatic Agreement, DOE will complete a phased NRHP eligibility evaluation of historic properties and undertake resolution of adverse effect to those historic properties.  The Programmatic Agreement will:

Content of the Programmatic Agreement: The Programmatic Agreement establishes how DOE either has or will conclude each of the aforementioned four steps of the 106 process. It is a procedural document that is closely tied to the requirements in the Section 106 regulations. 
The Programmatic Agreement addresses each of the four steps of the 106 process:

In addition to the HPTP, DOE will prepare the following plans/reports under the Programmatic Agreement that will be made available online:

Opportunities for Public Involvement in the Programmatic Agreement: The PA establishes numerous opportunities for the public to review progress on implementing the Section 106 process throughout the cleanup process.  DOE is proposing to commit to:

Public Comment on the Programmatic Agreement

DOE is currently in the process of consulting on the specific terms of the Programmatic Agreement with the consulting parties. Accordingly, DOE is electing to not publish the draft Programmatic Agreement for public review. DOE is, however, seeking the public’s comments on the general terms of the Programmatic Agreement as described above. Once executed, DOE will publish the final Programmatic Agreement online.
DOE will be accepting comments until November 18, 2018.  If you have comments, please direct them to Debbie Kramer at:  debbie.kramer@emcbc.doe.gov