Federal Compliance for Section 106 Review

Federally funded projects include levees developed by the U.S. Army Corps of Engineers and highways funded by the Federal Highway Administration through the Mississippi Department of Transportation (MDOT). Federal funding can also include less obvious projects such as in-home lead abatement, funded by U.S. Department of Housing and Urban Development (HUD), or construction of farm buildings, funded by the U.S. Department of Agriculture (USDA). These grants are sometimes administered through state agencies, but since the source of funding is federal, Section 106 regulations apply. Communities often find that projects such as waste water treatment improvements and other Community Development Block Grant (CDBG) projects fall under Section 106.

The most commonly encountered permits are those issued by the U.S. Army Corps of Engineers (COE), the Federal Energy Regulatory Commission (FERC) and the Federal Communications Commission (FCC). COE permits generally involve projects that involve changes to stream channels, flood plains, or other wetlands. FERC permits are required for natural gas pipelines and related facilities, while FCC permits are issued for cell towers. Some state agencies, such as the Mississippi Department of Marine Resources (MDMR) and the Mississippi Department of Environmental Quality (MDEQ), act on the Federal government’s behalf in issuing permits and thus also must undergo the 106 process.

Each state has a State Historic Preservation Office and a staff of archaeologists, architectural historians, and technical preservation specialists. The Mississippi State Historic Preservation Officer (SHPO) is Katie Blount, Director of the Mississippi Department of Archives and History (MDAH).  Contact Barry White, Deputy State Historic Preservation Officer at 601-576-6853 or bwhite@mdah.ms.gov with additional questions.

The Mississippi SHPO should be contacted as early as possible once a project with Federal permits or funding is in the planning stages. SHPO staff can offer guidance and help on how to undertake the Section 106 process in the most efficient way possible, including how to submit projects for review or find an archaeologist who does survey work. In accordance with Federal law, SHPO consultation and Section 106 review is always free of charge.

The Mississippi SHPO is currently accepting project submissions digitally. Projects should be submitted using the assessment portal. You may create an account if you frequently submit requests, or you may submit as a guest. You will receive a code that allows you to check the status of your request. Final printed copies of reports, survey forms, and other materials required to be submitted in hard copy may be mailed to Review & Compliance, MDAH Historic Preservation, P. O. Box 571, 100 South State Street, Jackson, MS, 39205. 

By law, the Mississippi SHPO is allowed 30 days for review. Most reviews are completed in one to three weeks. Projects are date stamped and reviewed in the order that they arrive. If the information provided to MDAH is incomplete, or if additional information is required to complete our review, the 30-day clock is stopped, and the SHPO has another 30 days for the next phase of the review.

After reviewing the photos and scope of work, the SHPO will determine the following:

1. The National Register eligibility of the building or structure
2. If found to be eligible, the effect of the project on the building or structure. If the structure is found to be not eligible for the National Register, the project may proceed without further review. If the structure is found to be eligible, any work performed on the structure must meet the Secretary of the Interior’s Standards for Rehabilitation. Demolition is always an adverse effect on an eligible structure, and SHPO staff will work with you concerning the best way to proceed.

The SHPO archaeology staff performs a cultural resources assessment, examining archeological site files, maps, and other background information for the project area. If in their judgment, the proposed project area has low potential for containing archeological sites, a concurrence letter is sent and the process is complete. If, on the other hand, the area has good potential for containing sites or if recorded sites are present in the vicinity, a letter requesting an archeological survey is sent.

In the case of federally funded projects, the responsible federal agency pays for the survey and for any additional investigations that ultimately might be necessary. Cultural resource costs associated with federally permitted projects are the responsibility of the developer.

If the consultant finds no evidence of archeological sites, a report describing the survey investigation is submitted for review. If the fieldwork and report are judged by the SHPO archaeology staff to be adequate, a concurrence letter is sent and the process is complete. In 2019, ninety-three percent of all projects reviewed by the SHPO staff were completed by this stage.

If the consultant finds an archaeological site (or sites) within the project area, the SHPO will work in consultation with the Federal agency and any relevant federally recognized Tribes in order to determine the best course of action. A recommendation may be made for systematic archeological testing (referred to as a Phase II investigation). Testing generally involves controlled excavation of several (usually small) test units with the objective of determining if the site is eligible for the National Register of Historic Places. At the conclusion of Phase II testing, two outcomes are possible. If the site is not considered to be eligible and the testing procedures and report are judged by the SHPO archaeological staff to be adequate, a concurrence letter is sent and the process is complete. If the site is judged to be eligible, then the Federal agency will consult with the SHPO, federally recognized Tribes, and other concerned parties concerning mitigation or avoidance. At any stage, the project may be altered to avoid archeological sites.

As was the case with Phase II surveys, federally funded projects are paid for by the responsible federal agency. In the case of federally permitted projects, Phase III testing costs are the responsibility of the developer.

Eligibility is determined by the four criteria (A, B, C, and D) for listing in the National Register of Historic Places (NHRP). They are Criterion A: association with an important historical event, community, or social movement; Criterion B: association with an important historical person; Criterion C: historically important architecture; and Criterion D: potential to yield important historical or archeological information. Most prehistoric archeological sites that are found to be eligible fall under Criterion D, because it can be very difficult to associate prehistoric archeological sites with specific events, persons, or architectural styles. Historic archaeological sites are often eligible under Criterion A or C as well as D. Under Section 106, there is no difference between sites that are eligible and those that are already NHRP listed when considering effect.

If a site is found to be eligible, the project moves to either avoidance, which changes the footprint to avoid damaging site, or mitigation. Mitigation can take several forms, and mitigation plans are developed in consultation with Federal partners, Tribal Historic Preservation Officers, and interested parties. Mitigation is coordinated by the appropriate Federal agency and results in a Memorandum of Agreement (MOA) among the parties.

If data recovery (Phase III survey) or salvage is decided upon by the parties involved, federally funded projects are paid for by the responsible federal agency. In the case of federally permitted projects, Phase III excavation costs are the responsibility of the developer.

The following MDAH personnel are responsible for the enactment of Section 106, from initial project intake to consultation and mitigation.

Review and Compliance Officer
Amy Myers
section106@mdah.ms.gov
601-576-6937

Chief of Preservation Planning
Hayley E. Smith
hsmith@mdah.ms.gov
601-576-6941

Chief Archaeologist
Cindy Carter-Davis
ccarterdavis@mdah.ms.gov
601-576-6945

Deputy State Historic Preservation Officer
Barry White
bwhite@mdah.ms.gov
601-576-6953