Consultations - Section 106

WHAT IS SECTION 106?

Section 106 consultation is a separate review process from the National Environmental Protection Act (NEPA) environmental review.  Section 106 of the National Historic Preservation Act of 1966 (NHPA) requires federal agencies to consider the potential effects of a proposed undertaking that requires federal funding, approvals or permits on historic properties through a collaborative framework called Section 106 consultation.  Through Section 106 consultation, federal agencies identify historic properties, determine potential adverse effects on those historic properties from the proposed undertaking, and determine how the adverse effects should be resolved.

DOE is committed to conducting a thorough and open review of Northern Pass’s Presidential permit application under Section 106.  Participants in the Section 106 process include DOE and other federal agencies, the Advisory Council on Historic Preservation (ACHP), Section 106 consulting parties, and the public.

Section 106 consulting parties consist of the New Hampshire and Vermont State Historic Preservation Officers (NH and VT SHPOs) and their respective staff within the New Hampshire Division of Historical Resources (NH DHR) and the Vermont Division of Historic Preservation (VT DHP), representatives of local governments, the Presidential permit applicant (Northern Pass Transmission), and additional consulting parties comprised of individuals and organizations with a demonstrated interest in the undertaking for legal, economic, or historic preservation reasons.

The public, as a participant in the Section 106 process, is provided with information about the identification of historic properties and the assessment of effects on historic properties.  Consistent with the requirements of Section 106, DOE considers the views of the public to be essential for informed decisionmaking by DOE about identification of historic properties for the proposed undertaking and consideration of the effects of the proposed undertaking on historic properties. 

ACHP Section 106 Resources

National Historic Preservation Act (16 U.S.C. 470 et seq.)

Section 106 Implementing Regulations (36 CFR Part 800)

Section 106 Implementing Regulations Flow Chart

ACHP Guidance on Coordinating NEPA and Section 106

ACHP Guide - Protecting Historic Properties: A Citizen’s Guide to Section 106 Review (2010 edition)

The Section 106 Process

Section 106 is a 4-step process (see ACHP’s Flow Chart resource above):  (1) Initiate the Section 106 process; (2) Identify historic properties; (3) Assess adverse effects; and (4) Resolve adverse effects. 

The Section 106 consultation process may result in either a Memorandum of Agreement or a Programmatic Agreement, which are legally binding agreements that ultimately lead to the resolution of any adverse effects on historic property by an undertaking.  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 establishes 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.  The Programmatic Agreement is developed through consultation with the SHPO(s), the applicant, the ACHP, and consulting parties. 

UPDATE: DOE has devloped a Programmatic Agreement through which it proposes to satisfy the Section 106 requirements for the proposed Northern Pass project.  Specifically, the Programmatic Agreement implements Steps 2-4 of the Section 106 process. Additional information for the public about the Programmatic Agreement is available below.

While there is no predetermined length of time within which the Section 106 consultation process must be completed, DOE is committed to ensuring that each of the four steps of the Section 106 compliance process is fully met. 

Public Involvement

Public input is essential to inform federal decisionmaking in the Section 106 process.  The Section 106 implementing regulations provide for specific public involvement opportunities 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.  Public outreach efforts should be commensurate with (see 36 CFR § 800.2(d)(1)):  the nature and complexity of the undertaking; the effects of the undertaking on historic properties; and, the likely interest of the public in the effects on historic properties.

For the proposed Northern Pass project, DOE’s efforts to involve the public in the Section 106 process are outlined below.  DOE also identifies future opportunities for public involvement in the four steps of the Section 106 consultation process for this project.  Updates and additional information about these opportunities will be provided here as DOE Section 106 consultation progresses.

STEP 1: Initiate the Process

DOE has initiated its Section 106 review of the proposed Northern Pass project.

  • DOE notified the public that the proposed Northern Pass project was under review through the NEPA process and established the Section 106 Consultation Page (http://www.northernpasseis.us/consultations/section106/) to provide information to the public during the Section 106 review.
  • DOE notified the NH And VT SHPOs, federally recognized Indian tribes, representatives of local communities, the Applicant, and additional consulting parties, including specific members of the public who had expressed an interest in cultural resources and historic properties through the NEPA scoping process, that DOE was initiating the Section 106 consultation process for the proposed Northern Pass project, and DOE invited them to participate as Section 106 consulting parties.

STEP 2: Identify Historic Properties

DOE is in the process of identifying historic properties potentially affected by the proposed Northern Pass project.  DOE will seek public input for further identification efforts through the Section 106 Consultation page (see the “IDENTIFICATION – PUBLIC INPUT” section below for specific information).  Remaining identification efforts will be implemented in accordance with the Programmatic Agreement developed for this project.

  • DOE sought public input for identification of historic properties potentially affected by this undertaking through the public comment period on the draft environmental impact statement (EIS), which closed April 4, 2016, and other public comment opportunities through the NEPA process. 
  • DOE has provided information about the NH DHR review process for historic properties in NH and how and where to view the documentation submitted to NH DHR identifying historic properties.  This information is provided below.
  • For the NH DHR review processes, members of the public and the Section 106 Consulting Parties are invited to participate in NH DHR’s Determination of Eligibility meetings in a listen-only capacity, per NH DHR practice.  DOE provides conference line access to NH DHR’s Determination of Eligibility meetings during which DOE documentation is reviewed by NH DHR staff. 
  • DOE is currently engaging with the VT DHP regarding its review process for historic properties in VT and will provide updated information about the VT DHP review process as it becomes available. 

STEP 3: Assess Adverse Effects

This step will be implemented in accordance with the Programmatic Agreement developed for this project.

  • DOE will notify the public through the Section 106 Consultation Page of the findings of the effect of the proposed undertaking on historic properties.  DOE’s notification will include findings of: (1) no historic properties affected (also known as ‘no effect on historic properties’); (2) no adverse effect on historic properties; and (3) adverse effect on historic properties, subject to confidentiality provisions.

STEP 4: Resolve Adverse Effects

This step will be implemented in accordance with the Programmatic Agreement developed for this project.

  • DOE will provide the public an opportunity to express views of resolving adverse effects for consideration through the Section 106 Consultation Page, subject to confidentiality provisions.

Section 106 Comments from the Public         

General Section 106 comments from the public may be submitted via email to Section106comments@northernpasseis.us and will be considered in the Section 106 process to the extent practicable. 

DOE’s requests for public input during the Section 106 process will provide specific instructions regarding submission of the requested input (see below for more information).

Initiation

Members of the public (individuals or organizations) may submit written requests to DOE to participate as Consulting Party.  In accordance with 36 CFR § 800.2(c)(5), certain individuals and organizations with a demonstrated interest in the undertaking may participate as consulting parties due to the nature of their legal or economic relation to the undertaking or affected properties, or their concern with the undertaking's effects on historic properties.  Requests should be submitted to Brian Mills (brian.mills@hq.doe.gov) and Caitlin Callaghan (caitlin.callaghan@hq.doe.gov), or via mail to U.S. Department of Energy, 1000 Independence Ave, SW (OE-20), Washington, DC 20585.

IDENTIFICATION – PUBLIC INPUT

New Hampshire

The proposed project comprises a new electric transmission line located entirely within NH, extending approximately 192 miles (mi) from the U.S.-Canada border in Pittsburg, NH, south to Deerfield, NH.   (For more information, see:  http://www.northernpasseis.us/overview/)

DOE is working with the NH DHR to implement Section 106 consistent with NH DHR’s regulations, policies, and practices for the portion of the project in NH.  Additional information for the public will be provided here when it is available.

NH Division of Historical Resources – Cultural Landscape Studies

NH DHR has directed NPT to undertake cultural landscape studies for the proposed Northern Pass project.  These studies will evaluate the significance, integrity, and National Register eligibility of any cultural landscapes that exist within the Pemigewasset River Valley and the Suncook River Valley.  In light of these studies, NPT will also determine whether additional cultural landscapes are present in the Great North Woods Project Area or other areas in the vicinity of the proposed Northern Pass project.

The public is invited to provide input to inform these studies and the identification of cultural landscapes potentially affected by the proposed Northern Pass project.  Maps and questionnaires are posted below to facilitate this input.  Input is requested by February 28, 2017, 5pm ET.

NH Division of Historical Resources – Architectural Resources/Project Area Form Review:
About the NH DHR Process (from NH DHR)

One of the many environmental laws that apply to the proposed Northern Pass Project is Section 106 of the National Historic Preservation Act. Under Section 106, federal agencies must consider the effects of projects they permit, license or fund on historic properties and archaeological resources. One of the first steps in the Section 106 process is to identify what historic properties and archaeological resources exist in a project area.

In New Hampshire, this identification step begins with the completion of a project area form. In addition to providing historical and architectural information about the project area, these documents are important planning tools that summarize previous survey efforts in the project area and determine the extent of additional needed survey. More detailed survey of individual properties and potential historic districts is the second step in the identification process. Guidance on completing project area forms is available at: http://www.nh.gov/nhdhr/programs/documents/areaformmanual.pdf.

Because the proposed Northern Pass Project covers a large geographic area, four project area forms have been prepared for its Section 106 review: Great North Woods, White Mountains, Lakes Region and Merrimack Valley. Cultural resources consultants working for the US Department of Energy prepared these documents. The US Department of Energy has reviewed their findings, and the consultants have recently submitted them to the NH Division of Historical Resources (DHR) for review. In New Hampshire, the DHR serves as the State Historical Preservation Office (SHPO), a federal role that requires the DHR to work with federal agencies on Section 106 reviews.

In its role as SHPO, the DHR reviews a large number of reports that identify historical resources under Section 106. It does so at meetings scheduled on the second and fourth Wednesday of every month, called Determination of Eligibility meetings. A schedule of these meetings is available online at http://www.nh.gov/nhdhr/programs/documents/2016doeschedule.pdf. At these meetings, the findings and recommendations of project area forms are discussed by staff members to assist the person assigned to review the project under Section 106. After this discussion, the DHR summarizes its findings and recommendations in a written format.

Viewing the Project Area Forms

The Project Area Forms (PAFs) are structured as follows:

  • PAF Text
  • Appendix A - Tables
  • Appendix B - Maps
  • Appendix C - Photos
  • Appendix D - Resources Identified by Consulting Parties (in the revised PAFs)

The complete PAF files are large and have been broken into parts based on size (not structure) for easier download. 

Supplemental PAFs reflecting the 2015 amended project: Supplemental documentation has been prepared for the Lakes Region and White Mountain PAFs.

Revised PAFs, reflecting NH DHR's draft PAF comments, have been submitted to the NH DHR for review and are linked below. The NH DHR comments will be posted below following each document's review. 

The draft PAFs, which were submitted to NH DHR for review, and NH DHR's comments are available through the links below. The NH DHR comments were addressed and a revised version posted after submission to NH DHR (see above).

The project area forms are available by appointment only at the DHR, 19 Pillsbury Street, Concord, NH 03301. Appointments between the hours of 8:30am-4:00pm Monday through Friday are available by contacting Tanya Krajcik at Tanya.krajcik@dcr.nh.gov or 603-271-3483. The area forms are not available without an appointment, and access may be limited due to ongoing review by DHR staff.

Vermont

The proposed project’s U.S. international border crossing in Pittsburg, NH is in close proximity to the New Hampshire-Vermont border in the vicinity of Beecher’s Falls, VT. Northern Pass has not proposed any construction within the State of Vermont.  A portion of the indirect area of potential effects (APE) – the defined study area for Section 106 – for the Northern Pass Project extends into the Town of Canaan in Essex County, VT.  The portion of the indirect APE that crosses into Vermont is approximately 1.25 square miles.

DOE is working with the VT DHP to implement Section 106 consistent with VT DHP’s regulations, policies, and practices for this portion of the indirect APE.  Additional information for the public will be provided here when it is available.

Programmatic Agreement

DOE is providing the public the opportunity to view the draft Programmatic Agreement (PA) for the proposed Northern Pass Transmission Line Project before it is executed. 

Section 106 of the NHPA requires federal agencies to take into account the potential effects of their undertakings that require federal funding, approvals, or permits on historic properties and to give the ACHP and SHPOs an opportunity to comment.  Compliance with Section 106 also requires consultation with other consulting parties, which may include federally-recognized Indian Tribes, representatives of local governments, the applicant, certain individuals and organizations with a demonstrated interest in the proposed undertaking due to the nature of their legal or economic relation to the undertaking or affected properties, or their concern with the undertaking’s effects on historic properties (36 C.F.R. § 800.2).  The public is also a participant in the Section 106 process, and federal agencies must also seek and consider the views of the public (36 C.F.R. § 800.2(d)).  If adverse effects on historic properties are anticipated, agencies develop measures to avoid, minimize, or mitigate those adverse effects through consultation.

DOE has developed a draft PA through which it proposes to satisfy the Section 106 requirements for the proposed Northern Pass project.  Through this notice, DOE’s is providing the public the opportunity to view the draft PA in accordance with 36 C.F.R. §§ 800.2(d) and 800.6(a)(4).  The draft PA is available here: Draft Northern Pass PA

A Federal Register notice announcing this document is forthcoming. 

DOE anticipates executing the PA following the public’s opportunity to view the draft PA.  Once the PA is executed, DOE will make the executed PA available through this website.