USING SECTION 106 PROGRAM ALTERNATIVES TO MANAGE AND PROTECT HISTORIC PROPERTIES
As in previous reporting cycles, compliance with Section 106 was cited by numerous respondents as their primary mechanism to protect historic properties. Advocating for the use of program alternatives was, in fact, one of the 2018 Section 3 report’s findings. While some agencies utilize the four-step Section 106 review process (36 CFR §§ 800.3- 7), others find it advantageous to use a tailored approach. Section 800.14 of the ACHP’s regulations lays out these tailored approaches to meet agency Section 106 obligations and preservation challenges. The two most common program alternatives are Programmatic Agreements and Program Comments. While most federal agencies use Programmatic Agreements on a case-by-case basis to address complex projects, several large, land- managing agencies have used them to implement a consistent approach to NHPA compliance across the country. A greater number have used Programmatic Agreements to tailor Section 106 review to the management needs of specific regions or units. The initiation and development of tailored approaches to Section 106 review has increased in the past three years.
In the past 20 years, the ACHP has issued more than 15 Program Comments, including four in the past three years. This program alternative allows a federal agency to request the ACHP comment on a category of undertakings in lieu of commenting on a case- by-case basis. The ACHP may also provide comments on its own initiative. Program Comments can help an agency achieve a broader perspective in planning for similar historic properties it manages on a nationwide basis, allowing those resources to be placed within a national context. Agencies seek input from the public and stakeholders in developing a Program Comment, and the ACHP conducts consultation with SHPOs/ Tribal Historic Preservation Offices (THPOs), Indian tribes, and NHOs in reviewing the agency’s request. Program Comments are especially advantageous to agencies that may have repetitive management actions for a large inventory of similar historic properties or for agencies that have programs that generate a large number of similar undertakings. Once issued, the terms of a Program Comment satisfy an agency’s Section 106 compliance responsibilities for the entire program or category of undertakings. Annual reviews and other monitoring provisions incorporate feedback from stakeholders and the ACHP to help ensure agencies correctly apply the Program Comment over its duration. The growing interest among federal agencies in Program Comments, along with concerns shared by stakeholders about how they are developed and applied, led former Chairman Jorjani to establish a Program Comment Review Panel in late 2020 to identify actions the ACHP can take to improve the use of Program Comments as a tool for Section 106 review efficiency. The panel of ACHP members will consider the successes and challenges key stakeholders have had in developing and using Program Comments in making recommendations. The following recent Program Comments are of particular interest regarding the efficiencies they create for federal property maintenance and management.
IN A SPIRIT OF STEWARDSHIP: A REPORT ON FEDERAL HISTORIC PROPERTY MANAGEMENT 2021 | 25
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