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Section 106 of the National Historic Preservation Act (NHPA) requires a Federal agency with jurisdiction over a federal, federally assisted, or federally licensed undertaking to take into account the effects of the agency's undertakings on properties included in, or eligible for listing in the National Register of Historic Places. The National Register of Historic Places (NRHP) is a register of historic and prehistoric sites, buildings, districts, structures, and objects significant in American history, architecture, archeology, engineering, and culture that is maintained by the Secretary of the Interior.  Sites that are prehistoric (prior to 1542 in the United States) or are historic are eligible for listing in the NRHP.

36 CFR Part 800 Appendix A sets forth the criteria that will be used by the Advisory Council on Historic Preservation to determine whether to begin a Section 106 review.  The Advisory Council on Historic Preservation may choose to exercise its authorities under Section 106 of the NHPA to participate in an individual project.  The Advisory Council on Historic Preservation is likely to enter the Section 106 process when an undertaking has substantial impacts on important historic properties; presents important questions of policy or interpretation; has the potential for presenting procedural problems; and presents issues of concern to Indian tribes or Native Hawaiian organizations.

The lead federal agency must afford the Advisory Council on Historic Preservation a reasonable opportunity to comment on undertakings on properties included in or eligible for listing in the NRHP.  The Advisory Council on Historic Preservation is an independent federal agency charged with advising the President and Congress on historic preservation matters and administering the provisions of Section 106 of the NHPA.  The State Historic Preservation Officer (SHPO) is an official appointed by the Governor to administer the state historic preservation program.  The SHPO consults and assists federal agencies in identifying historic properties, assessing effect upon them and considering alternatives to avoid or reduce those effects.

Individual Permit applications are reviewed on a case-by-case basis by the U.S. Army Corps of Engineers (USACE) for potential effects to prehistoric or historic properties.  Permit applicants should provide information to the USACE that addresses whether proposed project may affect historic properties listed, determined to be eligible, or which the prospective permittee has reason to believe may be eligible for listing, in the NHRP.

Letter of Permission procedure general conditions provide that if a known historic property would be encountered, the permittee shall not conduct any work in the permit area that would affect the property until the requirements of 33 CFR Part 325, Appendix C, have been satisfied.  If a previously unknown historic property is encountered during work authorized by an LOP issued under this procedure, the permittee shall immediately notify the USACE and avoid further impact to the site until the USACE has verified that the requirements of 33 CFR Part 325, Appendix C, have been satisfied.   Applicants must notify the USACE if any historic properties listed, determined to be eligible, or which the prospective permittee has reason to believe may be eligible for listing in the NHRP might be affected by, or is in the vicinity of, the project and must not begin work until notified by the District Engineer that the requirements of the Section 106 have been satisfied and that the activity is authorized.

For authorization under nationwide, regional, or programmatic general permits, prospective permittees must submit a pre-construction notification to the USACE (even if pre-construction notification is not otherwise required) if the project may affect any historic properties listed, determined to be eligible for listing, or which the prospective permittee has reason to believe may be eligible for listing in the NHRP.  Information on the location and existence of historic resources can be obtained from the SHPO and the NRHP (see 33 CFR 330.4(g)).  For activities that may affect historic properties listed in, or eligible for listing in, the NRHP, then the notification must state which historic property may be affected by the proposed work or include a vicinity map indicating the location of the historic property as well as any other information required by the general permit.  Determinations for eligibility for listing in the NRHP are made the USACE and the SHPO.  In cases of disagreements between the USACE and the SHPO, the National Park Service (NPS) has the final decision. All sites are potentially eligible and retain legal protection under Section 106 until it is determined otherwise. Permittees may not begin work until notified by the USACE that the requirements of the Section 106 of the NHPA and 33 CFR Part 325, Appendix C have been satisfied and that the activity is authorized.