Section 106 Review

Section 106 Architectural and Archaeological Survey Report Standards and Guidelines 

Our office has developed “Section 106 Architectural Survey Report Standards and Guidelines “ (106 S&G), which have been incorporated into our office’s larger survey manual entitled The Tennessee Historical and Architectural Survey Manual. The 106 S&G formalize current expectations for Section 106 architectural survey reports and detail the basic requirements our office needs to review reports and complete our role in identification and assessment of effects per 36 CFR 800. The survey identification requirements in the 106 S&G come directly from National Register Bulletins for survey and evaluation of eligibility. The requirements reflect the minimum amount of information necessary to determine or concur with National Register eligibility assessments.

All Section 106 architectural surveys must meet the new survey standards and guidelines by October 1, 2023.

Our office understands that such survey reports may be in progress months before they reach our office, hence the advanced notice of the new 106 S&G. However, please note, most of the requirements should already be in effect for architectural survey reports when it comes to what is needed to evaluate eligibility. Therefore, we will continue to request more information should reports contain insufficient information. The “Section 106 Architectural Survey Report Standards and Guidelines” were created to make the Section 106 review process more efficient as well as to provide a reference aid to ensure reports contain sufficient information for our office to evaluate eligibility and assess effects per 36 CFR 800.

Please reach out to Casey Lee with any questions.

Section 106 archaeological reports should follow the Tennessee SHPO Standards and Guidelines for Archaeological Studies. Questions Regarding Section 106 review for archaeological resources may be addressed to the Federal Programs Archaeologist Jennifer Barnett at 615-687-4780 or Jennifer.Barnett@tn.gov.

e106 System

All Section 106 submissions must to be submitted via the new e106 online portal. Please note there are two different sets of directions for registration. Submissions are no longer accepted through the Section.106@tn.gov inbox.

• For users with an @tn.gov email, follow these directions.
• For all other users, use these directions.
• Guidance on how to fill out the submittal form and materials to submit through the portal.

All SHPO responses will be coming to you through the new e106 system, so please be on the lookout for emails from TN HELP at TNHELP@SERVICE-NOW.COM.  

Section 106 Process at the Tennessee SHPO

Step 1: Initiate Consultation – The federal agency must determine whether the proposed action is an “undertaking” as defined in 36 CFR 800. If the action has no potential to affect historic properties, then it does not qualify as an undertaking and the agency is finished with its Section 106 obligations.

When an action qualifies as an undertaking, the federal agency or its designated representative must submit detailed project documentation to THC office and any additional consulting parties for review and comment. Participants in the Section 106 process may include local governments, federally recognized Native American Tribes, applicants for federal assistance, interested parties, and the public. Please review the THC Section 106 Review and Compliance Checklist for guidance regarding the basic documentation necessary to begin Section 106 Review.

Step 2: Identifying Historic Properties – Federal agencies are required to make a reasonable and good faith effort to identify historic properties located within the Area of Potential Effect (APE). The APE is the geographic area of an undertaking that has the potential to cause effects to historic properties, either directly or indirectly. For Section 106 purposes, historic properties are defined as those listed in or eligible for the National Register of Historic Places. Historic properties include such resources as individual buildings, historic districts, bridges, landscapes, and archaeological sites. Identification surveys must be carried out by professionals who meet the Secretary of the Interior’s Professional Qualifications Standards. THC Section 106 Review and Compliance staff have 30 days from receipt of a project submission to respond. Subsequent 30 day review periods begin each time additional information is received. The first step is for the federal agency to determine if there is an undertaking and develop an appropriate APE.  Currently, our survey office is closed for survey appointments but we have developed a digital process to get agencies the background information needed for 106 reviews.

•  A  current list of Tennessee properties in the National Register. It includes an address and date the property was listed.
•  National Register nomination files through 2015 are available from the NPS National Register  in a more complete format through the National Archives .  
• Survey data for much of the state is available here. Contact Peggy Nickell with questions about survey files.
• A list of information files is available. Contact National Register staff or email National.Register@tn.gov with questions or to obtain digital copies of the files.      
• For archaeological questions please contact Jennifer Barnett with the Tennessee Division of Archaeology.
• Information about Tennessee Division of Archaeology Site File Services.  

The federal agency is responsible for identifying any historic resources within the area of potential effect and to determine effects to any historic properties.

Step 3: Assessing Effects – If historic properties are identified within the APE, the federal agency must determine if the proposed undertaking will affect those historic properties and whether that effect will be “adverse.” An effect is adverse if the undertaking will alter the characteristics of a property that qualify it for listing in the National Register in such a way that it diminishes that property’s eligibility. Effects may be direct or indirect. Direct effects include changes in the property’s location, design, setting, materials, and integrity. Indirect effects may include visual, audible, or economic changes associated with the proposed undertaking.

Once the federal agency or its designated representative has made an assessment of effects they should submit all relevant documentation to our office with a request for concurrence with their determination. THC will respond either concurring or not concurring with the agency’s effect determination. Consultation can result in one of the following three effect determinations:

• No Historic Properties Affected – Applicable when either there are no historic properties present in the APE or the undertaking will have no effect on a historic property within the APE.
• No Adverse Effect – The undertaking will affect historic properties in the APE, but the effect will not be adverse.
• Adverse Effect – The proposed project will have an adverse effect on historic properties in the APE. The federal agency shall continue consultation to avoid, minimize, or mitigate the adverse effects to historic properties.

Step 4: Resolve Adverse Effects –The agency will consult with the THC and other consulting parties to develop alternatives to avoid, minimize, or mitigate the adverse effects of an undertaking on historic properties. If complete avoidance of adverse effects to historic properties is impossible, the agency, THC, and other consulting parties will formalize the steps necessary to minimize, mitigate, or treat the adverse effect in a Memorandum of Agreement. The federal regulations for implementing Section 106 can be found at 36 CFR 800. For detailed guidance, please review the Section 106 Applicant Toolkit.

Steps After Adverse Effect Determination - If an adverse effect cannot be avoided, the following steps will need to be taken to continue the Section 106 process to resolve the adverse effect.

1. Notify the Advisory Council on Historic Preservation (ACHP) of the adverse effect to afford them the opportunity to participate in the consultation to resolve the adverse effect. You will fill out their e106 form which can be found on their website. Please ensure you follow their directions and provide all the information they request. ACHP gets 15 days to decide if they wish to participate or if they need more information.
2. Notify any relevant Tribes of the adverse effect to afford them the opportunity to participate in consultation. Most federal agencies have their own Tribal Consultation processes that should be followed.
3. Notify the public and potential consulting parties of the adverse effect so they are afforded the opportunity to participate. In our experience, most federal agencies notify potential parties and then allow anywhere from 30-60 days for a response. Most federal agencies have their own process for this step.
4. Consult with all consulting parties, including Tribes, and any members of the public on minimization efforts or mitigation for the adverse effect. This is where all parties decide what will go into the Memorandum of Agreement (MOA). This can take the form of formal consultation meetings or through other means. Regardless how this step is implemented, it is important that all consulting parties are aware of the views and comments of one another, unless sensitive or confidential information is involved.
5. Once the MOA is signed, the project can move forward as long as any mitigation that needs to be completed before the project starts is completed prior to any work (for instance, if mitigation includes documentation, the documentation must be completed before any work begins).

Mitigation

• Mitigation and mitigation ideas can be found here. 
• Tennessee SHPO documentation standards for mitigation can be found here.