Companion Guide to Video August 2012

www.fhwa.dot.gov/federal-aidessentials

There are several areas of environmental law that 

local public agencies, or LPAs, might encounter on 

a Federal-aid project. These areas address a 

project's effects on: 

• The natural environment—things like air 

and water quality, wetlands, wildlife or 

endangered species

• The social environment—things that affect 

our quality of life, like the displacement of 

homes or businesses or community 

cohesion impacts, particularly as they 

relate to minority and low-income 

populations

• Historic sites

• Parks and recreation areas

The National Environmental Policy Act, known as 

NEPA, provides a framework for environmental 

analyses, reviews, and series of discussions 

known as consultations. 

NEPA's process "umbrella" covers a project's 

compliance with all pertinent Federal environmental 

laws.

While NEPA provides a coordinated environmental 

review process, the related environmental law 

specifies what an agency must do to comply with 

its particular requirements—which can vary widely.

One such law, Section 106 of the National Historic 

Preservation Act, requires Federal agencies to 

consider the effects of their projects on historic 

properties.

A historic property is any prehistoric or historic 

district, site, building, structure, or object that is 

included in or eligible for inclusion in the National 

Register of Historic Places. The Advisory Council 

on Historic Preservation and the State Historic 

Preservation Officers—or SHPOs—administer the 

Federal or State historic preservation program.

Environment

Other Laws and Requirements

Section 106 of the National Historic Preservation Act

Agencies that use Federal funds must consider the effects of 

their projects on historic properties
Federal-aid Essentials for Local Public Agencies

The National Historic Preservation Act does not 

mandate preservation of historic properties. 

However, if your project receives Federal-aid 

funding, your agency must participate in a 

consultation process that considers the effects of 

your project on those properties. 

Depending on the project, consulting parties may 

include the Advisory Council on Historic 

Preservation, your SHPO, the Tribal Historic 

Preservation officer, federally recognized Indian 

tribes and Native Hawaiian Organizations, local 

governments, and the public.

Let's take a look at the consultation 

process and the responsibilities of 

agencies in complying with the 

National Historic Preservation Act.

While the consultation process is somewhat 

iterative, there are four basic steps:

• Initiate consultation

• Identify and evaluate historic properties

• Assess effects

• Resolve effects

To initiate consultation, an LPA typically sends a 

letter of correspondence to either the SHPO or the 

State’s department of transportation— or State 

DOT—identifying the project, the project location, 

and who is involved. And if known, an agency will 

also identify any historic properties in the project 

area.

In order to properly identify and evaluate any 

potential archeological and historic sites, an agency 

needs to use a qualified employee or hire a 

consultant. The evaluator will begin by performing 

file and literature searches to determine if the 

property is on or potentially eligible for the National 

Registry of Historic Places. The resulting report 

summarizes the site's setting and historical context, 

project information— including maps—and any 

cultural resources that were identified. 

If there are no historic properties in the project area 

or no adverse effects are likely to occur to ones 

that are present, an agency will issue a letter with 

its findings, which completes the consultation 

process. 

On the other hand, if adverse effects are likely to 

occur, an assessment must be made. An adverse 

effect occurs when an element of a historic 

property is altered in a manner that diminishes the 

integrity of the property’s location, design, setting, 

materials, workmanship or association. For 

example, noise or visual blight can be considered 

an adverse effect. 

The public and the consulting members of the 

project team can help determine any adverse 

effects resulting from the project. 
Federal-aid Essentials for Local Public Agencies

Once potential adverse effects are identified, an 

agency needs to evaluate possible alternatives or 

modifications that would help resolve the effects 

by avoiding, minimizing, or mitigating them. For 

example, the alignment of a road might be altered 

to avoid affecting a historic property, or a 

commemorative publication or plaque might be 

erected.

The process concludes when the agency finalizes 

a memorandum of agreement between consulting

parties.

To illustrate the process, let’s 

consider a drainage and road 

improvement project in a town we’ll 

call Old Towne, which was 

established in the early 19th Century.

To initiate the consultation process, the project 

manager sends a letter to the SHPO describing 

the project and providing a map of the project 

area.

The city of Old Towne hires a consultant with 

recent experience developing similar studies for 

the State DOT. During the course of her literature 

review, she discovers evidence of an early 19thCentury tavern at the corner of 1st and Main. 

During a site visit, she confirms that there is no 

longer any evidence of the tavern from the 

ground's surface.

The project team then conducts a subsurface 

investigation of the area and finds the foundation of 

the tavern and an outhouse. Further excavation 

indicates that the site might yield important 

information about the lifestyle of Old Towne’s 

earliest residents. 

Unfortunately, given its proximity to the street, the 

drainage and road improvement work would 

destroy the archeological site. 

To resolve the adverse effects, the project team 

consults with the SHPO, the local historical society, 

the State DOT, and the Federal Highway 

Administration’s division office. After the artifacts 

are analyzed and a report is prepared, the team 

agrees to erect an interpretive sign describing what 

was found and to give any recovered artifacts to 

the county museum. With everyone satisfied with 

this arrangement, the project team concludes the 

consultation process by writing a memorandum of 

agreement. 

As we have seen, as a sponsor of a 

federally aided transportation 

project, your agency may be 

required to conduct studies and 

coordinate with other parties. 

The necessary activities and degree of your 

involvement depend on the nature of your project 

and your State DOT’s practices. Your State DOT 

can help you navigate the requirements and 

develop approaches that adequately evaluate and

address your project’s effect on historic properties.
Federal-aid Essentials for Local Public Agencies

The content of this 

document is not a 

substitute for 

information obtained 

from State departments 

of transportation, 

appropriate FHWA 

Division Offices, and 

applicable laws. 

Scenarios have been 

simplified for emphasis 

and do not necessarily 

reflect the actual range of 

requirements applicable 

to the scenario or this 

topic. This document

was created under 

contract number

DTFH61-11-D-00025 by 

the Federal Highway 

Administration, U.S. 

Department of 

Transportation, and is 

offered to the public to 

heighten and focus 

awareness of Federal-aid 

requirements within the 

local public agencies 

community and 

reinforces the 

importance of these 

necessary policies, 

procedures, and 

practices.

This companion resource 

is the script content for 

the video production of 

the same name. 

Additional Resources

• Overview of FHWA’s Historic Preservation Program

http://www.environment.fhwa.dot.gov/histpres/index.asp

• AASHTO Practitioner's Handbook 06 on Section 106 consultation

http://environment.transportation.org/pdf/programs/PG06.pdf

• Advisory Council on Historic Preservation Web site provides useful overview 

of the Section 106 process

http://www.achp.gov/work106.html

• Helpful references related to Section 106 and transportation projects

http://www.achp.gov/fhwa.html

• Information on LPA involvement in Section 106 reviews for preservation of 

historic properties

http://www.achp.gov/docs/LocalGovernmentsSection106.pdf

• Information on role of LPAs in protection of historic properties

http://www.achp.gov/regs-rev04.pdf

• Link to National Historic Preservation Act of 1966

h http://www.cr.nps.gov/local-law/FHPL_HistPrsrvt.pdf