Consultation  101

Under Section 106 of the National Historic Preservation Act of 1966 (NHPA), Federal agencies are required to take into account the effects that their projects or activities, termed undertakings according to NHPA, may have on historic properties and to consult on these effects with a number of consulting parties including SHPOs.  This includes projects that those Federal agencies initiate, assist, fund, permit, license or otherwise approve in whole or in part. Section 106 review (consultation) must be completed prior to the funding, approval, or initiation of these undertakings. This review process gives stakeholders and interested parties, including the general public, a chance to understand the impact of the project and provide comments. To determine if a project requires a Section 106 review, first identify if the project has:

1. any federal involvement, and

2. the potential to cause effects on historic properties.

If Section 106 applies to the project, we recommend going through the review process on the Advisory Council on Historic Preservation's (ACHP) website.  If you are a member of the general public interested in voicing your thoughts on a current or future project, we encourage you to review A Citizen's Guide to Section 106 Review and to reach out to the Federal agency(ies) involved.

Examples of projects that frequently involve Section 106 review include, but are not limited to:

• Housing projects receiving funding from the Department of Housing and Urban Development.

• Telecommunications projects, such as broadband or cell tower construction, receiving funding or approval from a Federal agency.

• Road construction or maintenance projects receiving funding from the Federal Highways Administration.

Resources for Section 106 reviews

• AHPC Introduction to Section 106

• Section 106 Applicant Toolkit

• Integrating NEPA and 106 Reviews

• Section 106 Archaeology Guidance

• Section 106 Regulations

• A Citizen's Guide to Section 106 Review

The Colorado Register of Historic Places Act (CRS 24-80.1-101 to 108), commonly known as the State Register Act, requires state agencies to consider how their actions might affect historic and archaeological resources, referred to broadly as historic properties. Similar to Section 106 reviews, State agencies must evaluate the effects that their projects may have on historic properties listed or nominated for inclusion on the State Register of Historic Properties under the State Register Act. This is known as a State Action. 

If a State Action is involved, the responsible State agency must consult with the Office of Archaeology and Historic Preservation (OAHP) to identify historic properties in the proposed project area, and request a determination of effect (DOE) on the identified properties. Notification must happen at the earliest stage of planning and in all cases, before an agency decision concerning the project action has any affect on the historic properties. 

Parties involved in the consultation include the project proponent, appropriate public stakeholders such as local historical societies, and others with an interest in the proposal. Consultation is lead by the agency to whom the project proponent is seeking permits, funding, etc. The lead agency should be in direct conversation with the Office of Archaeology and Historic Preservation (OAHP).  State agencies are also expected to consult under the State Register Act when planning projects on historic properties they themselves own. 

The steps outlined below are designed to assist those who are new to, or are unfamiliar with, the State Register Act consultation process. 

1. Determine State Involvement

State involvement includes any activity, program, project, or undertaking or the approval, assistance, or support of any activity, policy, program, project, or undertaking by the State of Colorado. Examples of projects that frequently involve State Register Act review include, but are not limited to:

• Development of a County Park. 

• Improvements to drinking water facilities.

• Development of oil and gas infrastructure or other extractive practices on State managed land.

• State funded construction of private-sector affordable housing. 

• Cleanup and removal of abandoned mines.

• Upgrades or alterations at State owned historic properties.

2. Determine the Nature of the Project

The State Register Act only applies to projects that have the potential to affect historic properties. These effects can be physical (demolition, alteration, etc.) or non-physical (visual impacts, noise impacts, etc.). Many projects do not have any potential to affect historic properties. For example, a state agency that hires a new staff person or buys new computer equipment is spending state money, but is not engaging in an activity that could affect a historic building or archaeological site. Following Colorado regulations (8 CCR 1504-5) established to implement the State Register Act, state agencies should contact the historic preservation office (OAHP) when the agency determines a state action has the potential to affect historic properties. examples of projects that have the potential to affect historic properties include:

• Widening a state highway in such a manner that requires the acquisition and demolition of historic structures, or that causes substantial and detrimental increases in traffic and noise to nearby historic properties.

• Building a new affordable housing project in an existing historic district.

• Bulldozing and regrading a site that may contain historic and/or prehistoric artifacts.

• Making changes to an existing historic structure that negatively impact its appearance, form, or function.

3. Establish the Area of Potential Effect

The Area of Potential Effect (APE) is defined as the geographic area or areas within which a project or undertaking may cause changes to the character, appearance, setting, or use of historic properties, if such properties have been identified.

The APE includes the area or areas that will be affected by a project, such as a building that is proposed for demolition and replacement. It also must include visual and audible effects by the same project. For example, if a single house in a block of historic homes is demolished and replaced, the replacement building has the potential to visually impact the other homes on the block. As such, they would be included within that project’s APE. Some things to consider when establishing an APE include ground- disturbance, traffic noise and vibration, setting, and future property access.

• Has the land where the planned ground-disturbance will take place been previously disturbed by prior projects? For example, work that takes place within the right-of-way of a highway likely involves land that was previously disturbed when the highway was built.

• Will access roads be constructed? Even if the access road is temporary, running heavy construction equipment over buried archaeological sites can cause significant damage.

• Will the project require earth or rocks to be taken from one area and placed at another site? Both the ‘borrow’ and ‘dumping’ areas could be affected as a result.

• Will the project require staging or storage areas? Storing heavy equipment or construction materials on top of an archaeological site can have the same adverse effects as driving heavy machinery over them.

4. Conduct Research

Determine whether any buildings, structures, or sites that are located within the APE are listed on, or nominated for listing on, the Colorado State Register of Historic Properties and/or the National Register of Historic Places. Properties can be listed individually, and they can also be listed as part of a larger group (such as a historic district). OAHP maintains a comprehensive inventory of all sites, structures, buildings, and districts that are listed on the State and National Registers. To identify if any historic properties are with the project APE. State agencies should request a File Search from our office. 

If any historic properties are identified during the file search, the agency must request a determination of effect from OAHP. If the results of the file search indicate that listed or nominated properties are within your APE, formal consultation with SHPO under that State Register Act is required.

If the results of the file search indicate that there are no listed or nominated properties within the APE, it may mean that a survey has never been done in that area. It would be in an agency’s best interest to consult with OAHP and local stakeholders about the probability of significant resources being in the project path. Please retain a copy of the search results for your records to demonstrate your compliance.

Please note that OAHP consultation staff will not provide file searches as part of an expedited review/notification process. File search and/or background research for historic properties must be done by the State agency prior to notifying OAHP. Agencies seeking a file search should consult our File Search page for more information.

5. Notify OAHP and Request a Determination of Effect

The State Register Act and related regulations  require state agencies to request from OAHP a determination of effect for any action on  a property or properties identified as being nominated for or listed on the State Register that fall within the APE. In order to accurately and efficiently review the components of a project, agencies should submit the following items to OAHP as part of a consultation submission package:

1. A notification letter which includes:

   • An outline of the project.

   • The source of state involvement.

   • The contact person at the agency.

   • Statement of the agency’s self-evaluated determinations of effect (does the agency think there is an adverse effect, or no adverse effect).

2. Results of the file search obtained prior to initiating formal consultation. 

3. A topographic-style project map that includes the location of the undertaking, and which clearly delineates the Area of Potential Effect, usually at 1:24000 scale.

4. Photographs, plans, construction drawings, renders, and/or any other information that helps to describe and explain the project.

• Photographs, in particular, are very helpful in that they allow the OAHP staff reviewer to virtually place themselves at the project site, and to see the areas/buildings/sites being impacted up close. In these cases, it is always better to err on the side of caution and provide more photos than needed, rather than fewer.

See Consultation Checklist for additional information about preparing consultation submissions.

OAHP will review the proposed action and will provide one of two findings:

• No adverse effect, in instances where there are listed or nominated properties within the APE, but the project will have either no effect or very minor effects on the properties that do not diminish their character, setting, appearance, or use;

• Adverse effect, in instances where a project will destroy and/or significantly affect one or more listed or nominated properties within the APE.

OAHP has 30 calendar days to provide a response to the state agency. If the response is to ask for additional information to be able to render a comprehensive and accurate response, the 30-day ‘clock’ will pause and restart when the OAHP receives the requested information. OAHP's response should not be considered a part of formal consultation under Section 106 of the National Historic Preservation Act (36 CFR Part 800) or any other environmental law or regulation. 

6. Finding of Effect

If the Office of Archaeology and Historic Preservation and the lead state agency agree on the finding of effect, the formal consultation process ends, and the agency can move forward with its project. On the other hand, if the OAHP or the lead agency disagree, or if both the agency and the OAHP conclude that the project will have an adverse effect on one or more historic properties, further consultation will be required.

If a project requires additional steps in the consultation process, such as mitigating adverse effects and handling disagreements, OAHP will help guide these conversations and provide additional direction to stakeholders as needed. The protection of historic resources are not meant to stop projects. Instead, these consultations are meant to find ways forward that supports public stewardship of resources. 

1. Who initiates consultation?

Federal and State Agencies are responsible for consulting with SHPO. If another entity takes on the responsibility of consultation, SHPO requires a letter from the lead agency designating a third part to consult on their behalf.

2. Establish the project APE.

Understand the location where the project will occur and how the project outcome will potentially impact the area. For some projects "pre-consultation" with SHPO and other stakeholders may be requires to sort out the APE. This process is closely associated with the research and identification stage of the consultation process.

3. Research and identify.

It is important to evaluate whether or not you have the skills and knowledge needed to adequately research, identify, interpret, and document potential historic properties for your project. Understand the qualification by reading the Secretary of the Interior Professional Qualification Standards. If you are not qualified to conduct the research, you may need to hire qualified consultants to assist with this process.

The research process involves:

1. • • Identifying previously recorded historic properties.

     • Understanding if a survey is needed to re-evaluate or discover new potential historic properties.

     • Evaluate research results to understand if there is potential to affect existing resources.

     • Analyze the effect of the project on the properties in the area.

• Preparing new documentation for resources.

• Determine the effects of the project on the resources.

4. Initiate consultation.

Write a letter notifying the SHPO of the project. The letter should include:

• Scope of work.

• Explanation of APE.

• Identification efforts.

• Determination of effect and how did you come to this determination.

See our Consultation Checklist for more details on what to include in the notification letter.

What is "Section 106" review?

Section 106 of the National Historic Preservation Act requires Federal agencies to take historic properties into account in all projects in which agencies are involved.  The Act requires agencies to initiate consultation not only with the state historic preservation officer (SHPO) but also with tribal representatives, local groups and governmental entities.  In its simplest form, an agency is required to identify and evaluate the National Register eligibility of cultural resources within the area affected by a project; determine how a project will affect eligible or listed properties; and seek alternatives to avoid, minimize and mitigate effects to such properties.  The role of the SHPO is to advise and comment upon an agency’s determinations at each stage of this process.  The SHPO does not have the authority to stop a project, but it is entitled to obtain from agencies sufficient information upon which to comment.

How do I obtain comments from the Colorado SHPO?

Agencies should write a letter to the SHPO following the guidance explained on our Consultation Checklist page.

How long does the SHPO review take?

The SHPO has a maximum of 30 calendar days to respond to most types of reviews.  However, staff endeavors to respond within two weeks. 

APE

Area of Potential Effect; the geographic area that will be impacted by the proposed project. This includes not only direct project areas, but access roads, borrow pits, etc. 

DOE

Determination of Effect; the official determination from OAHP about how the proposed project will impact historic resources.

NHPA

National Historic Preservation Act of 1966.

OAHP

 Office of Archaeology and Historic Preservation at History Colorado. This office carries out the federal and state requirements. 

Section 106

36 CFR 800, that requires federal agencies to consider the impact of their undertaking on historic resources.

SHPO

State Historic Preservation Office and/or State Historic Preservation Officer, as promulgated under NHPA 36 CFR 800.

SRA

State Register Act, Colorado Register of Historic Places, a law that allows for the designation and protection of the state’s significant historic resources.