Advisory Council on Historic Preservation and Section 106 Kelly Yasaitis Fanizzo, JD Historic Preservation Specialist Advisory Council on Historic Preservation Phone: 202-606-8583 E-mail: kfanizzo@achp.gov

Section 106 of the National Historic Preservation Act [16 U.S.C. 470f] Take into account the effects of its actions on historic properties Provide the ACHP a reasonable opportunity to comment One, among other legal requirements for Federal agencies. Seeks to accommodate historic preservation concerns with the needs of Federal undertakings through consultation among the agency official and other parties with an interest in the effects of the undertaking on historic properties. NHPA applies to “historic properties”– defined in Section 301, “any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion on the National Register, including artifacts, records, and material remains related to such a property or resource.” 36 CFR 800.4(c)(2)- “If the agency official determines any of the National Register criteria are met and the SHPO/THPO agrees, the property shall be considered eligible for the National Register for section 106 purposes.”

36 CFR Part 800 Protection of Historic Properties The how-to manual for carrying out Section 106 review

Programmatic Agreement 36 CFR 800.14(b) To govern the implementation of a particular program or the resolution of adverse effects from certain complex project situations or multiple undertakings. Federal agency in driver’s seat. Timing: Section 106 process must be complete prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license. Does not prohibit the agency from conducting or authorizing nondestructive project planning activities, so long as such actions do not restrict the subsequent consideration of alternatives to avoid, minimize or mitigate adverse effects on historic properties. Want to consider broad range of alternatives for undertaking.

Components of Writing a Successful Agreement Whereas Clauses: the “who” and “why” of the agreement Stipulations: the “what, where, and when” Signatures: signatories, invited signatories, concurring parties

Privatization Pursuant to the 1996 Military Housing Privatization Initiative (in the National Defense Authorization Act for Fiscal Year 1996, P.L. 104-106, 110 Stat. 186, Sec. 2801), which amends 10 USC 169 by addition of a new subchapter; IV- Alternative Authority for Acquisition and Improvement of Military Housing. Decision to enter into long term lease= Undertaking with multiple parts. Agreements with private developers selected in a competitive process to own, maintain and operate family housing via a fifty-year lease. Typically consists of a transfer of a long-term interest in the construction, demolition, renovation, rehabilitation, operation, and maintenance of housing and other ancillary facilities on the installation. Intended for use by soldiers and their families. Exterior rehabilitation project on Great Lakes Naval Training Station, Illinois. Photo courtesy of Forest City Military Communities.

Section 106 Regulatory Philosophy Framework for problem solving Grounded in consultation Provides stakeholders access to federal decision-making Historic preservation is not the only useful public purpose Results range from full preservation to total loss of historic properties Process based. Does not dictate a substantive outcome. PA’s influence on how privatization arrangement will work for the management of historic properties (e.g., future review procedures, some set demolitions/new construction/rehabilitation, consulting parties, timing, etc.)

Rehabilitation Tax Credit 20 % tax credit: Certified Rehabilitation of a Certified Historic Structure Examples of other PAs that include encouragement for tax credit stipulations. Potential stipulation in PA. Can have successful Section 106 outcome that does not meet tax act criteria. Specific definitions of certified rehabilitation (rehabilitation of a certified historic structure that is approved by the NPS as being consistent with the historic character of the property, and where applicable, the district in which it is located) and certified historic structure (building that is listed individually in the NR or a building that is located in a registered historic district and certified by the NPS as contributing to the historic significance of that district; structure must be a building and not a bridge, ship, car, etc.) -- Differs from NHPA definition of historic property, more restrictive.

Advisory Council on Historic Preservation Office of Federal Agency Programs Old Post Office Building 1100 Pennsylvania Avenue, NW Suite 803 Washington, DC 20004 (202) 606-8505 www.achp.gov