Section 106 Review

This Chapter describes the Section 106 Historic Review. For information on the Environmental Review process, please see the following chapter (Chapter 4). The various Section 106 chapter components include: 

• Overview: Section 106 of the National Historic Preservation Act
• Step 1: Initiating the Section 106 Process
• Step 2: Identifying and Evaluating Historic Properties
• Step 3: Assessing Effects and Choosing a Federal Finding
• Step 4: Resolving Adverse Effects
• Tribal Consultation
• Section 106/Tier II Submittals in IowaGrants
• Documenting Section 106 Compliance in the ERR 

Overview: Section 106 of the National Historic Preservation Act

Section 106 of the National Historic Preservation Act of 1966 (NHPA) outlines the process of identifying and assessing the potential effects of a federal undertaking on historic and archaeological resources. The process consists of four steps:

1. Initiating the Section 106 process
2. Identifying and evaluating historic properties
3. Assessing the undertaking’s effects on historic properties
4. Resolving adverse effects to historic properties

Section 106 consideration is required for all federal undertakings, including CDBG, CDBG-CV, and CDBG-DR projects. CDBG recipients assume responsibility for Section 106 review and the federal finding under the NHPA. If HUD is the lead agency of the project receiving CDBG funds administered through the Iowa Economic Development Authority (IEDA), Section 106 review is documented in a Section 106/Tier II form in IowaGrants and must be approved by the IEDA Historic Preservation Specialist (HPS).

The process for completing Section 106 review for IEDA’s CDBG projects is summarized below. For a definitive description of Section 106 requirements, please consult the regulations in 36 CFR Part 800, which can be found at: https://www.ecfr.gov/current/title-36/chapter-VIII/part-800?toc=1.

Step 1: Initiating the Section 106 Process

To assist with streamlining the Section 106 process, IEDA has a Programmatic Agreement (PA) with the State Historic Preservation Office (SHPO) that allows IEDA to have qualified, on-site staff to conduct reviews of Section 106 documentation for CDBG, CDBG-CV, and CDBG-DR projects that result in findings of No Potential to Cause Effects, No Historic Properties Affected, and No Adverse Effect to Historic Properties. The PA is available in Appendix 3 of the CDBG Management Guide and outlines the roles and responsibilities of IEDA, SHPO, the Responsible Entity (RE), and the Advisory Council on Historic Preservation (ACHP). It also includes a list of Programmatically Excluded activities that do not have the potential to affect historic properties.

The RE should review the PA to determine if the project is limited to the Programmatically Excluded activities or if full Section 106 review is needed. Projects cannot be segmented into excluded activities and non-excluded activities, so the entire project must be limited to the activities listed in the PA for it to be Programmatically Excluded from full Section 106 review.

If the project is not Programmatically Excluded, it must go through full Section 106 review, and the RE must continue to Step 2 of the process.

If the project’s Level of Review for the Environmental Review is Exempt, Categorically Excluded NOT Subject to §58.5, or if the project activities are limited to the activities listed as Programmatically Excluded in the PA, the project does not have to go through full Section 106 review. Instead, the RE must complete an Exempt from Review, Project Determination form (located in Appendix B of the PA) and submit it with a Section 106/Tier II form in IowaGrants by following the steps below:

• Complete and sign the Excluded from Review form.
• Start a Section 106/Tier II compliance form in IowaGrants.
• Read instructions and complete all relevant fields.
• Select “Yes” for “PA Exempt” and fill out the “Exempt Date Signed” and “PA Exemption” sections.
• Upload the Excluded from Review form and supporting documentation under the “Exempt Form” section.
• Submit the Section 106/Tier II form through IowaGrants.

Once submitted, the IEDA HPS has 30 days to review and either provide comments or approve. The Section 106 process ends here for Programmatically Excluded projects.

Step 2: Identifying and Evaluating Historic Properties

Area of Potential Effects (APE)

Once the RE has determined that a full Section 106 review will be needed, they must define the Area of Potential Effect (APE) of the project. The APE is the surface and subsurface geographic area in which the project may directly or indirectly impact historic or archaeological resources.

In determining the APE, the RE must consider direct and indirect effects as well as immediate effects or effects that may occur in the future as a result of the project. The APE usually encompasses the project area as well as all easements, borrow areas, equipment and material storage, and staging areas. The RE should also take into account excavation and other earthmoving activities including three-dimensional parameters (length, width, and depth) of the intended subsurface impacts. A map of the project’s APE must be included in the Section 106 submittal.

Identifying Resources

Once the APE has been delineated, the RE should move forward with the identification and evaluation of historic and archaeological resources within the APE.

Previously evaluated resources in the APE can be found in the State of Iowa Inventory. The RE must contact Penny Wilcoxson (Penny.Wilcoxson@iowaeda.com) and Lorinda Bradley (Lorinda.Bradley@iowaeda.com) to request previously inventoried resources within the APE.

The RE should also check the National Register of Historic Places (NRHP) database (located on the National Park Service (NPS) website: https://npgallery.nps.gov/nrhp) for copies of National Register Nominations for any listed resources in the APE.

When all previously evaluated and listed resources in the APE have been identified, the RE must work to identify any unevaluated potential historic resources (resources over 50 years of age or of exceptional significance) and archaeological resources within the APE for evaluation. To assist with identifying unevaluated resources, the RE may consider conducting background research of the area, consulting interested parties in the area, contacting local historians, completing field surveys, and/or initiating a Phase I archaeological survey.

Completing Iowa Site Inventory Forms (ISIFs)

An Iowa Site Inventory Form (ISIF) must be completed to evaluate or re-evaluate each aboveground resource in the APE that is over 50 years of age or of exceptional significance. A blank copy of the ISIF and instructions are located on the SHPO’s portal.

The ISIF should document the existing conditions of the resource at the time it the form is being completed and must not discuss any future alterations or the proposed CDBG project. Previous ISIFs are good for five years; if an ISIF for a previously inventoried resource was completed more than five years ago or has been altered since the previous ISIF, a new ISIF must be completed, and the property must be re-evaluated.

Evaluating Resources

NRHP evaluation is required for all potential historic resources in the APE that are unevaluated or were evaluated more than five years ago, including buildings, districts, objects, structures, and sites. The NPS has developed the National Register Criteria for Evaluation to provide guidance on evaluating properties that may be eligible for the NRHP. The National Register Criteria consist of the following:

• Criterion A: History/Historical Event – is the resource associated with an event that made a significant contribution to history?
• Criterion B: Significant Person – is the resource associated with the lives of significant persons?
• Criterion C: Architecture – does the resource embody the distinctive characteristics of a significant type, period, style, or method of construction?
• Criterion D: Potential to Yield Information – does the resource yield or is it likely to yield important information about our nation’s history or pre-history? (Archaeology)

If the resource meets any of the National Register Criteria, the RE should determine if it retains sufficient integrity to be eligible for listing in the NRHP. There are seven aspects of integrity to consider:

• Location
• Design
• Setting
• Materials
• Workmanship
• Feeling
• Association

If any of the above aspects of integrity have been significantly altered from the resource’s period of significance, it may not retain sufficient integrity to be NRHP-eligible.

The RE may consider seeking professional assistance from a qualified consultant if they are unable to document the resource and determine its National Register eligibility.

Technical Assistance

Tallgrass Archaeology, Inc. (Tallgrass) conducts technical review of the ISIFs for IEDA’s CDBG housing rehabilitation (HSG) projects. The RE must complete a draft ISIF with a draft narrative description, statement of significance, maps, photos, and any other information. The RE will then send the draft form to Ray Werner (raywerner@tallgrassarchaeology.com) who will review and provide comments and revisions within no more than 10 working days from submittal. The RE must incorporate any revisions into the ISIF prior to submitting the form through IowaGrants.

Tallgrass also offers technical assistance for complex historic properties for IEDA’s HSG projects. The RE should contact Ray Werner at Tallgrass in advance and request a Full Evaluation. Tallgrass will then complete a site visit and generate a full ISIF for the RE. This is a separate service from the regular HSG ISIF review and comes at a separate cost for IEDA.

Completing Archaeological Review

If a project includes ground disturbance, the RE must make a reasonable and good-faith effort to identify the presence or potential presence of buried archaeological sites in the APE. The level of archaeological review will depend on the scope and scale of the ground disturbance.

If the project has minimal ground disturbance, the RE may be able to provide supplemental information to show that the APE is unlikely to contain archeological resources and that there is no compelling evidence for further archaeological review. This documentation must include a narrative description and supplemental maps showing the condition of the area and why there is no compelling evidence of archaeological resources. To ensure there are no known archaeological sites in the area where there will be ground disturbance, the RE should also request an Iowa Site File Search from the Office of the State Archaeologist (OSA), which includes information on the types and number of recorded archaeological sites within a 1-mile radius of the project APE. The RE can request a Site File Search on the OSA website: https://archaeology.uiowa.edu/services/i-sites

If the project has substantial disturbance or there is information that leads to the probability of archaeological resources, an archaeological survey of the APE must be completed. The RE must procure a qualified archaeologist to conduct the survey. If the Phase I survey results in the recommendation for continued investigation to determine if the site is NRHP-eligible, the RE must either continue with the evaluation of archaeological resources or revise the scope to fully avoid the unevaluated sites. Furthermore, if any pre-historic archaeological sites are identified, the results of tribal consultation must be considered for eligibility determinations.

Step 3: Assessing Effects and Choosing a Federal Finding

Once all the resources within the project APE have been identified and evaluated, the RE must assess the project’s effects on any NRHP-eligible or -listed resources. The RE will select a federal finding from the following:

• No Potential to Cause Effects (these activities are covered in the PA and in Step 1)
• No Historic Properties Affected (there are no eligible or listed resources in the APE)
• No Adverse Effect to Historic Properties (there are eligible or listed resources in the APE, but the project has been designed to avoid any adverse effects to those resources)
• Adverse Effect to Historic Properties (there are eligible or listed resources in the APE, and there is no way to avoid altering the character-defining features of an eligible or listed resource – SHPO consultation is required)

To avoid adverse effects to eligible or listed resources, the project must comply with the Secretary of the Interior’s (SOI) Standards (located on the NPS website) and must avoid diminishing the characteristics that qualify the resource eligible for the NRHP.

If there are No Historic Properties Affected or No Adverse Effects to Historic Properties, the RE can end the Section 106 process here and complete a Section 106/Tier II form documenting compliance.

If the project will result in an Adverse Effect to Historic Properties, the RE must continue to Step 4 of the process.

Step 4: Resolving Adverse Effects

If the project will result in an Adverse Effect to Historic Properties, the PA requires consultation with SHPO and the development, execution, and implementation of a Memorandum of Agreement (MOA). An MOA outlines agreed-upon measures that IEDA and the RE will take to avoid, minimize, or mitigate the adverse effect resulting from the project.

A typical MOA timeline is as follows:

• Consult with SHPO on the “Adverse Effect” finding (30 days).
• SHPO concurs with the “Adverse Effect” finding.
• Notify the Advisory Council on Historic Preservation (ACHP) of the Adverse Effect and invite them to participate in resolution (15 days).
• Notify the public and interested parties of the Adverse Effect and solicit ideas for ways to avoid, minimize, and mitigate the effects.
• Through consultation with SHPO and all identified interested parties, select mitigation measures that are commensurate with the Adverse Effect on the resource. Mitigation measures must be agreed-upon by all parties before they are included in the MOA (especially by the federal agency and SHPO).
• Draft the MOA to outline the agreed-upon mitigation measures and the roles and responsibilities of who will implement them.
• The MOA must clearly state who is responsible for each task.
• Distribute the draft MOA to all signatories and invited signatories for review and comment.
• Once agreed upon, all signatories sign and execute MOA.
• Complete all stipulations of the MOA.

Tribal Consultation

Consultation with the IEDA HPS does not replace the potential need to consult with federally recognized Native American Tribes and Tribal Preservation Officers. HUD’s When to Consult with Tribes under Section 106 form includes a list of projects that would require the RE to contact the tribal authorities. If the project activities are not on the list, the RE does not need to consult with Tribes; instead, the RE must complete and sign the form and include it in the Environmental Review Record (ERR).

If Tribal consultation is required, a list of Tribal contacts can be found in Appendix A of the PA. The RE should also refer to the HUD Tribal Directory tool (https://egis.hud.gov/tdat/) to identify the current contacts for Tribes interested in the specific area of the project. Tribal consultation letters must be on City letterhead from the Chief Elected Official and not from the Grant Administrator. Once the letters have been sent, Tribes have 30 days to indicate their desire to consult. Copies of the Tribal consultation letters and the distribution list must be added to the Section 106/Tier II form and included in the ERR.

Section 106/Tier II Submittals in IowaGrants

Once the RE has determined a federal finding, they must start a Section 106/Tier II form in IowaGrants and complete the following steps prior to submitting the form to the IEDA HPS:

• Read instructions and complete all relevant fields
• Note the Site Inventory Number on the Section 106/Tier II form if a resource in the APE is previously inventoried
• Select “No” for “PA Exempt” if submitting evaluation documents (ISIFs, archaeological survey, etc.)
• Select a “Finding” (No Historic Properties Affected, No Adverse Effect, Adverse Effect)
• Upload all Supporting Documentation as PDFs
• Submit the Section 106/Tier II form for IEDA review

The Supporting Documentation section of the Section 106/Tier II form should include the following:

• Authorization for Alternate Signatories form (per program/city) or Request for Comment on a HUD Project form signed by City Official (per address) – blank forms can be found in PA appendices
• APE map
• If work involves above-ground resources over 50 years of age or of exceptional significance:
  • Iowa Site Inventory Form (ISIF) with current photographs of all visible elevations, streetscapes, etc.
  • Note that photos must be integrated into the ISIF rather than as a separate document. Even if building or district is listed in NRHP, current condition photographs are still required
• If work involves ground disturbance:
  • Supplemental Archaeological Information or Archaeological Survey
• Scope of work conveying that the proposed project meets SOI standards
  • Include a narrative description of the project work
  • Ideally, also include architect renderings showing any changes to exterior elevations of any NRHP-eligible or -listed properties – otherwise, the IEDA HPS may go back and ask for them
  • Make sure project activities are clearly stated and easy to find
• Copies of tribal letters or other consultation, if required
• Any other supplemental documentation that will help IEDA concur with finding, such as: the Assessor’s webpage, old ISIFs, historic district nominations, window surveys, etc.

Once the Grant Administrator has submitted the Section 106/Tier II form, the IEDA HPS has 30 days to review and provide comments or approve.

Documenting Section 106 Compliance in the ERR

If a federal agency other than HUD (such as DNR, USDA, FEMA, etc.) is the lead agency and completed the Section 106 compliance, Section 106/Tier II forms should not be submitted through IowaGrants. Instead, the RE must add copies of the Section 106 compliance and approval from SHPO to the ERR.

If no other federal agency is involved in the project, a Section 106/Tier II form must be completed for the project in IowaGrants:

• For Environmental Assessments (EAs) and projects that are Categorically Excluded Subject to 58.5(a)(3) and do not require a tiered Environmental Review: Once the Section 106 form has been approved, the RE must add a screenshot of the approval and include it in the EA documentation along with the tribal consultation or the When to Consult with Tribes under Section 106 form.
• For projects that are Categorically Excluded Subject to 58.5(a)(3) that require sitespecific Environmental Tier II reviews for Section 106 (such as HSG and DTR projects): The ERR will be completed prior to the individual building/site Section 106/Tier II reviews. Add the tribal consultation or the When to Consult with Tribes under Section 106 form to the ERR. Once the ERR is complete, submit the ERR and Request for Release of Funds (RROF) to IEDA through IowaGrants. Once the ERR has been approved, the RE will then do the individual Section 106/Tier II forms for each location. No bidding or construction can occur prior to the Section 106/Tier II approval.