What is a Section 106 Review?

How You and Your Selectboard Can Participate as Consulting Parties in Considering the Effects of Northern Pass upon Historic Properties in Your Town

Do you live in or on an historic property? Are there historic properties in your town? (“Historic properties” are loosely defined as structures, sites, natural features, buildings, objects, etc., more than fifty years old that retain some degree of original features and have social, cultural, or other significance.) Are they important to your sense of place, community, heritage? Are you concerned about the possible adverse effects that the proposed Northern Pass transmission project may have upon these properties?

If you want a seat at the table when discussions begin about how to identify eligible properties and to avoid, minimize, or mitigate adverse effects that Northern Pass may have upon them, the federal government gives you, as well as historical societies, museums, and related non-profit organizations, the right to request “consulting party” status in the upcoming Section 106 Review, which is explained in this blog. Local governments are entitled to consult but they must notify the Department of Energy (DOE) of their interest in doing so now. Please bring this important matter to the attention of your selectboard and any relevant non-profit organizations in your town. They will not receive notification from the DOE or the State of New Hampshire that the Section 106 Review is beginning. Template letters requesting consulting party status are provided in the information that follows.

What is a Section 106 Review?

A Section 106 Review requires federal agencies to consider the effects of projects they carry out, permit, or fund upon historic properties. It is part of the National Historic Preservation Act (1966). In conjunction with the New Hampshire Division of Historical Resources (NH-DHR) and as part of the Environmental Impact study, the DOE must conduct a Section 106 Review of Northern Pass. The early stages of this review have begun. See the correspondence between the DOE and NH-DHR defining its parameters – and Northern Pass’s intervening effort to lower the bar.

The American Council of Historic Properties (ACHP) specifies the regulations governing the Section 106 review. The regulations are published in the Code of Federal Regulations  at 36 CFR Part 800, “Protection of Historic Properties” and may be found on the ACHP’s website.

For purposes of the 106 Review, “historic properties” are broadly defined. They include prehistoric or historic districts, sites (which includes natural features having cultural significance, such as the Indian Head rock profile in Franconia Notch), buildings, structures, or objects included in or eligible for inclusion in the National Register of Historic Places, as well as artifacts, records, and remains that are related to and located within these National Register properties. The classification also includes properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization.

ACHP provides for and encourages broad citizen participation in Section 106 reviews. This includes the requirement that the lead agency (DOE) interact with local governments and certain types of organizations and individuals who are granted “consulting party” status. A representative of a local government (e.g., selectboard) with jurisdiction over the area in which the effects of an undertaking may occur is entitled to participate as a consulting party. Historical societies, museums, and related organizations, and individuals with a demonstrated interest in the project may also be eligible to participate in Section 106 review 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” (36 CFR 800.2(c)(5).)

Interaction between the DOE and consulting parties is specified in 36 CFR 800. 4 -7. In particular, the DOE is required to provide all consulting parties with the proposed finding of “no adverse effect” and the documentation specified in 36 CFR 800.11(e) at the same time it is provided to the NH-DHR for their 30-day review. Each consulting party has the right to disagree with the finding within that 30-day review period. If the DOE cannot resolve the disagreement, it must seek ACHP’s opinion, which is binding upon the DOE.

For more information on the role of consulting parties, see “Influencing Project Outcomes” in the ACHP’s “Citizen’s Guide to Section 106 Reviews”. NH-DHR’s information on 106 Review is here.

How to Request “Consulting Party” Status

Selectboards of towns on Northern Pass’s proposed route or a previously identified alternative route are entitled to participate, and individuals and relevant non-profit organizations on the currently proposed or previous alternate routes may also be eligible. All must request consulting party status to participate.

A sample letter requesting consulting party status for a town is here; for an individual, historical society, museum, or related organization, here. Email your request to Brian Mills at  Brian.Mills@hq.doe.gov, with copies to Richard Boisvert, Deputy New Hampshire SHPO and State Archeologist, at richard.boisvert@dcr.nh.gov, and to Lee Webb, Energy Liaison, Advisory Council on Historic Preservation, at lwebb@achp.gov.

What Happens if the Proposed/Alternate Route Changes and My Town is Suddenly On It? 

If the remainder of the route in Coos County is identified or there are other changes, additional individuals, groups, and towns will become eligible for or entitled to consulting party status. The ACHP notes that the Agency Official, in this case, the DOE, should “be sensitive to the need to involve additional consulting parties at later stages in the process, as potential project impacts become better understood and the interests of other parties become clearer. The objective is to ensure that the Federal agency has adequately consulted with those who have significant interests in historic preservation issues. Doing this early is in everyone’s best interest, to avoid having problems emerge later in the Section 106 process.”




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