Section 106 of the National Historic Preservation Act

Overview

Section 106 of the National Historic Preservation Act (NHPA) requires Federal agencies to consider the effects of their projects on historic properties. Historic properties are any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register of Historic Places (NRHP) maintained by the Secretary of the Interior. 

The Advisory Council on Historic Preservation’s (ACHP) Section 106 implementing regulations in 36 CFR Part 800 define a four-step decision-making process for compliance with Section 106. The four steps are:

1. Initiate consultation and define the Area of Potential Effects (APE);
2. Identify properties that may be affected by the project, and determine if the property(ies) are historic as determined by eligibility or listing in the NRHP;
3. Assess the effects of the undertaking on historic properties; and
4. Resolve adverse effects on historic properties by developing and evaluating alternatives that could avoid, minimize, or mitigate those effects. 

The result of consultation to codify these steps and resolve adverse effects for the SCMAGLEV Project is a legally binding Programmatic Agreement (PA).

Consulting parties in this Section 106 process include the Federal agencies; the Maryland and District of Columbia (DC) State Historic Preservation Officers (SHPOs); ACHP; Baltimore-Washington Rapid Rail, LLC (BWRR); representatives of local governments; and other consulting parties who have been identified as individuals or organizations with a demonstrated interest in the Project due to their legal or economic relationship to affected historic properties. The Federal agencies considered to be Section 106 consulting parties on this Project include:

• Advisory Council on Historic Preservation
• Architect of the Capitol
• Federal Railroad Administration
• NASA Goddard Space Flight Center
• National Capital Planning Commission
• National Security Agency
• U.S. Army, Fort Meade
• U.S. Commission of Fine Arts
• U.S. Dept. of the Interior
• Department of the Interior - National Park Service
• U.S. Dept. of Agriculture, Agricultural Research Service
• U.S. Department of Labor, Office of Job Corps
• U.S. General Services Administration
• U.S. Fish & Wildlife Service, Patuxent Research Refuge
• U.S. National Arboretum
• U.S. Secret Service

The public’s opportunity to provide information related to historic properties has been coordinated through National Environmental Policy Act (NEPA) and related public engagement.

Section 106 Review for the SCMAGLEV Project

The Federal Railroad Administration (FRA) initiated Section 106 consultation with the DC and Maryland SHPOs for the SCMAGLEV Project in May 2017. FRA then worked with the SHPOs to identify consulting parties who were formally invited to participate in the Section 106 consultation process. Between May 2019 and December 2020, FRA identified historic properties that have the potential to be affected by the Project.

The Section 106 process and consultation was coordinated with the development of the Project’s Environmental Impact Statement (EIS) in accordance with NEPA. FRA has developed a list of historic properties that have the potential to be impacted by the Project and a Draft PA that would codify how adverse effects to historic properties would be resolved. This information was available for public review along with the Draft EIS (DEIS).

Draft PA

The Draft PA was available for public review from January 15, 2021, to May 24, 2021. All comments received during this period will be considered in preparation of the PA. 

Consultation Meetings

FRA has conducted several Section 106 Consultation Meetings with the consulting parties:

• Consulting Party Meeting #1 – March 14, 2018, in Hanover, Maryland
  Addressed the following topics: roles of the consulting parties, Project overview, Project purpose and need, alternatives screening process, NHPA Section 106 process, Section 106 and NEPA coordination, timeline, and identification of historic properties. 
   
• Consulting Party Meeting #2 – September 17, 2018, in the District of Columbia
  Addressed the following topics: updates on Project elements and design, definition of the APEs, identification of historic properties and archaeological resources, methodology, and PA development.
   
• Consulting Party Meeting #3 – July 20, 2020, by videoconference
  Addressed the following topics: Project elements and design, definition of the APEs, identification of historic properties, and PA development.

Additional consulting party meetings will be held as the Project proceeds. In addition to meeting with consulting parties, FRA will provide information to the public at public meetings held throughout the NEPA process about the Project’s potential to affect historic properties.