Regulations
Federal regulations
FHWA undertakings, whether state or locally sponsored, must comply with Section 106 of the National Historic Preservation Act of 1966, as amended, before the project can be approved. Review of projects to ensure compliance with the governing regulations of Section 106 (36CFR800) is referred to as “the Section 106 process” or “Section 106 review.” FHWA has delegated its responsibilities, to a certain extent, for compliance with Section 106 in accordance with Federal law to the professionally qualified staff (as per 36 CFR 61) in MnDOT’s Cultural Resources Unit (CRU), although the FHWA remains legally responsible for all findings and determinations charged to the agency official in 36 CFR 800.
The Section 106 regulations (36CFR800) require federal agencies such as the FHWA to consider the impacts of their undertakings on historic properties. This includes projects funded (in whole or in part), licensed or permitted by the federal agency. During the Section 106 review process, the federal agency or their delegated agent (i.e. MnDOT CRU) identifies historic properties that may be affected by an undertaking, assesses the undertaking’s effects on historic properties, and then considers ways to avoid, reduce or mitigate any adverse effects. Historic properties are defined by the National Park Service as any building, structure (such as a bridge), object, site (including archaeological sites and landscapes), or district, that is considered eligible for or listed in the National Register of Historic Places. The Section 106 review is carried out in consultation with the Minnesota State Historic Preservation Office and with other concerned parties, including members of the public. The intention of the Section 106 review is not to stop undertakings from being carried out, but to ensure that due consideration is given to historic properties in the project planning process.
FHWA, the Corps, the Advisory Council on Historic Preservation, the State Historic Preservation Office, the U.S. Army Corps of Engineers, and MnDOT have executed a Programmatic Agreement for the implementation of the Section 106 process for the Federal Aid program in Minnesota. The agreement substantially streamlines the Section 106 review process by eliminating the need for SHPO review when MnDOT’s Cultural Resources Unit staff determined that there were no historic properties within a project area or when there are historic properties present, but the project will have no effect. Through this agreement, approximately 75 percent of all projects are now cleared internally and do not require the 30 day SHPO review. Also, if a project has both FHWA and Corps involvement, through this agreement, the Corps recognizes the FHWA as the lead federal agency, thereby eliminating the need for two separate Section 106 reviews by the two agencies.
If a project has no FHWA involvement, but does include funding, permitting or licensing by another federal agency, that agency is responsible for ensure that the Section 106 process is completed. MnDOT CRU can aid in working with the other federal agency, and in some cases will be delegate review authority on a project-by-project basis. Please contact CRU if your project has a lead federal agency other than FHWA, and we will assist as we can.
Section 106 Programmatic Agreement
The FHWA recently updated their programmatic agreement with the SHPO, Advisory Council on Historic Preservation, the Corps of Engineers and MnDOT. The agreement streamlines and expedites the Section 106 review process when no historic properties are present, or when there are properties, but the project will have no effect on them.
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State regulations
When MnDOT carries out a project with state funds only and no federal permits, the CRU reviews the projects for compliance with the state statutes termed the “Minnesota Historic Sites Act”, the “Minnesota Field Archaeology Act”, and the “Minnesota Private Cemeteries Act”. Among other things, these statutes direct state agencies to cooperate with the Minnesota Historical Society and the Office of the State Archaeologist to protect significant historic and archaeological resources. The objective of these statutes is to avoid, reduce or mitigate adverse impacts.
- Minnesota Historic Sites Act (MS 138.661-138.669) - Directs state agencies to consult with the Minnesota Historical Society if projects they undertake or fund will impact properties listed in the National Register of Historic Places and/or in the State Register of Historic Places.
- Minnesota Field Archaeology Act (MS 138.31-.42) - Directs state agencies to consult with the Minnesota Historical Society and the Office of the State Archaeologist when projects occurring on lands they control will impact known or suspected archaeological sites.
- Minnesota Private Cemeteries Act (MS 307.08, subd 9-10) - Directs state agencies to cooperate with the Office of State Archaeologist and Indian Affairs Council when known or suspected burial grounds may be affected by agency activities. Also requires agencies to submit construction and development plans to the Office of State Archaeologist for review when human burials are known or suspected to exist in a project area.