From: Jonathan Kalmuss-Katz, Sive Paget & Riesel, P.C., More from this Affiliate
Published March 27, 2013 08:26 AM

New Federal Handbook Guides Coordination of Environmental, Historic Preservation Review

Earlier this month, the Council on Environmental Quality ("CEQ") and the Advisory Council on Historic Preservation ("ACHP") published a new handbook governing the coordination of project review under the National Environmental Policy Act ("NEPA") and Section 106 of the National Historic Preservation Act ("Section 106"). Drawing from existing rules and guidance from both agencies, the Handbook for Integrating NEPA and Section 106 Reviews (the "Handbook") summarizes regulatory requirements; provides checklists and flow-charts to assist project sponsors and reviewing agencies; and emphasizes opportunities to synchronize and streamline review under both statutes.

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NEPA requires federal agencies to assess proposed actions' environmental impacts, and to prepare an environmental impact statement ("EIS") when potentially significant, adverse impacts are identified. Section 106 requires federal agencies to determine whether proposed actions (or "undertakings") could affect historic properties, including but not limited to those listed on the National Register of Historic Places. If the undertaking may have an adverse effect, the agency must work with federal, state and tribal stakeholders in order to develop a plan to avoid, minimize, or mitigate such effects on the resource. Because effects on historic and cultural resources are considered environmental impacts under NEPA (though not necessarily significant effects under NEPA), the analyses required under the two statutes often overlap, creating the potential for duplicative study and overlapping procedural requirements if review is not coordinated.

Under Section 106 regulations, agencies may substitute NEPA review for Section 106 analysis in certain circumstances, although substitution requires early notification of ACHP and incorporation of Section 106 requirements into an Environmental Assessment or EIS. The Handbook provides a checklist to determine when substitution is appropriate and whether the substitute procedures have been adequately followed under NEPA.

In the absence of substitution, the Handbook emphasizes how agencies can nonetheless coordinate NEPA and Section 106 review by developing a combined schedule and communications plan; using NEPA analyses and comment periods to fulfill Section 106 documentation and participation requirements; and planning ahead to avoid, minimize or mitigate historic impacts early in the review process. The Handbook concludes: "The current paradigm for environmental reviews advanced by CEQ and the ACHP envision these reviews occurring simultaneously, continually exchanging information, and allowing determinations and recommendations in one to inform the other."

Continue reading at Sive Paget & Riesel, P.C.

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