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Frequently Asked Questions

Section 106 Review and Compliance

What is a federal undertaking?

According to the National Historic Preservation Act (NHPA), an undertaking is "a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a federal agency, including those carried out by or on behalf of a federal agency; those carried out with federal financial assistance; those requiring a federal permit, license or approval; and those subject to state or local regulation administered pursuant to a delegation or approval by a federal agency (36 CFR 800.16y)."

When must a Section 106 review take place?

The Section 106 process must be completed "prior to the approval of the expenditure of any federal funds on the undertaking or prior to the issuance of any license… The Agency Official shall ensure that the Section 106 process is initiated early in the undertaking’s planning, so that a broad range of alternatives may be considered during the planning process for the undertaking (36 CFR 800.1)."

What is a project's "area of potential effects" (APE)?

The area of potential effects is "the geographic area or areas within which an undertaking may directly or indirectly cause changes in the character or use of historic properties, if any such properties exist. The area of potential effects is influenced by the scale and nature of an undertaking and may be different for different kinds of effects caused by the undertaking (36 CFR 800.16d)."

What is considered a "historic property"?

A historic property is "any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register of Historic Places, maintained by the Secretary of the Interior (36 CFR 800.16l)."  Generally, the National Register of Historic Places defines historic buildings or sites as being 50 years of age or older, although there are considerations given for significant resources less than 50 years of age as well.

What is an adverse effect?

An adverse effect is identified when "an undertaking may alter, directly or indirectly, any of the characteristics of a historic property… in a manner that would diminish the integrity" of the property. Examples of an adverse effect include:

  • Physical destruction or damage to all or part of the property.
  • Alteration of a property.
  • Removal of property from its historic location.
  • Introduction of visual, atmospheric, or audible elements that diminish the integrity of the property’s significant historic features.

Who participates in the Section 106 process?

The main participants in the Section 106 review process include federal agencies, the Advisory Council on Historic Preservation (ACHP), and the State Historic Preservation Office. Additional participants such as Tribal Historic Preservation Offices, Native American tribes, and local governments can also contribute and be instrumental to the process.

Under 36 CFR 800, "It is the statutory obligation of the federal agency to fulfill the requirements of Section 106 and to ensure that an agency official with jurisdiction over an undertaking takes legal and financial responsibility for Section 106 compliance."

Who is the State Historic Preservation Officer (often referred to as "SHPO")?

The term SHPO refers to the State Historic Preservation Officer. Under Section 101(b) of the NHPA, the SHPO is appointed by the Governor to administer the state historic preservation program and to reflect the interests of the state and its citizens in the preservation of their cultural heritage. In Kentucky, the SHPO also serves as the executive director of the Kentucky Heritage Council. Kentucky's current SHPO is Craig Potts.

The term "SHPO" is also used informally to refer to the State Historic Preservation Office. The office's professional staff has expertise in archaeology, history, architectural history, and historic preservation.

The National Park Service must approve the historic preservation plan adopted by each state program. In addition to Section 106 review responsibilities, the SHPO also administers the National Register of Historic Places program for the state; provides grants to local governments; maintains the inventory of historic buildings, sites and structures and archaeological resources; administers federal and state historic rehab tax credit programs; and provides educational and technical assistance on historic preservation issues.

What is the Advisory Council on Historic Preservation?

The Advisory Council on Historic Preservation (ACHP) is an independent federal agency that promotes the preservation, enhancement and productive use of our nation's historic resources, and advises the President and Congress on national historic preservation policy. The ACHP also issues regulations (36 CFR 800) to implement Section 106 of the NHPA, and oversees the federal Section 106 review process.

What makes a historic property "significant"?

The National Register of Historic Places has outlined four main criteria against which historic properties are assessed for significance. These criteria are the basis for which historic properties are evaluated in the Section 106 process. They are:

  • Criterion A: Properties that are associated with events that have made a significant contribution to the broad patterns of our history.
  • Criterion B: Properties that are associated with the lives of persons significant in our past.
  • Criterion C: Properties that embody the distinctive characteristics of a type, period, or method of construction, or properties that represent the work of a master, or properties that possess high artistic values, or properties that represent a significant and distinguishable entity whose components may lack individual distinction.
  • Criterion D: Properties that have yielded, or may be likely to yield information important in prehistory or history.

Learn more about the National Register program in Kentucky.

How is the Section 106 process initiated?

To initiate the Section 106 process, a hard-copy letter must be mailed or delivered to Craig Potts, KHC Executive Director and State Historic Preservation Officer, at the KHC office located at the Barstow House, 410 High Street, Frankfort, KY 40601. This letter should explain the nature of the project and include photographs of the site and a topographic map, with the site indicated on the map. Details are outlined in the Specifications for Field Work and Cultural Resource Assessment Reports.

How long does the Section 106 process take?

The Kentucky Heritage Council reviews all projects within 30 days. However, due to the large number of projects the agency reviews each year, sometimes this can take a bit longer. In order to expedite the process, please make sure your package is as complete as possible, including all relevant photographs, maps, and other information.

Preliminary Site Check FAQs

Why am I being asked to perform a preliminary site check?

Previously, KHC Site Protection staff completed preliminary site checks on behalf of applicants as part of their Section 106 review, though they were not obligated to do so, and it increased the time needed to complete the review. We have now developed ways to streamline this process to allow for more timely responses, including a means for applicants to complete their own preliminary site checks. The most efficient approach is via an online request for a Site Identification Site Check. These online requests are fulfilled utilizing a Geographic Information Systems database. A preliminary site check fee is charged solely for generating a unique report on your behalf that identifies known historic buildings or structures that are located within or near your project area.

Is there any way I can get the information included in the preliminary site check without using the online option?

Yes. You can complete your own preliminary site check by accessing the paper files free of charge at the KHC/SHPO office in Frankfort. To do so, please contact the Data Manager (502-564-7005, ext. 118, or KHC-sitedata@ky.gov) to arrange a time to visit KHC's Site Identification Library. We cannot accommodate in-person preliminary site checks without an appointment. Please note these paper files are currently being digitized, which may limit the availability of some records.

Will the new preliminary site check affect my timeline for Section 106 review?

This process does not increase the time it takes to prepare a Section 106 submission. Within 2-3 business days of submitting an online request and payment for a preliminary site check, the Site Identification Program will send an e-mailed, PDF version of a report which provides the address of any previously surveyed historic resources within your project area and a small area around it, the resource type (house, barn, cemetery, etc.), and the National Register status of the resource. If you choose to make an appointment to visit the KHC/SHPO office to complete a preliminary site check on your own, review of paper records for most types of individual projects can be completed in one visit. However, due to ongoing digitization efforts, please email KHC's Survey Coordinator Amanda Graham Kincaid or call 502-564-005, ext. 4569, with questions regarding availability. Either method will allow you to provide more complete information with your project's initial submission to our office, greatly reducing the likelihood that staff would need to request more information to complete your Section 106 review. 

Does the site check count as consultation with KHC/SHPO for the purposes of Section 106?

No. In the Section 106 process, identifying historic properties that could be directly or indirectly affected by a project is ultimately the responsibility of the funding/permitting agency or its delegate. The preliminary site check provides information that assists the agency/delegate in fulfilling this responsibility and should be carried out in advance of the Section 106 review process. The results of the site check along with other information you collect such as photographs, the history/use of the project area, comments on local significance, etc., will become part of a larger packet you send to KHC/SHPO. This submission is what initiates Section 106 consultation and triggers comment on your project.

Am I paying a fee for my Section 106 review?

No. The fee for the preliminary site check requested online is only for research and a report completed on your behalf by the Site Identification Program. Section 106 review conducted by Site Protection staff consists of examining a project's scope of work, looking at/assessing historic resources identified by the federal agency or its delegate within an area of potential effect, and considering what kinds of effects may result from proposed work. This is done to fulfill the KHC/SHPO's role as a consulting party in the Section 106 process; there is never a fee associated with this review.

The results of my preliminary site check indicate there are no sites in my project area. Does that mean my project will have no effect on historic properties? 

Not necessarily. If your online request or your own research of paper records returns no results in or around your project area, it is likely your project area has not been previously surveyed for historic properties. If you can see anything over 50 years of age in or around your project area, it will be especially important to account for these buildings/structures in your Section 106 submission to KHC/SHPO. 

Are there undertakings that do not require a preliminary site check?

Some undertakings (e.g. federal loan refinancing that does not support major rehabilitation, small equipment purchases like radios, etc.) do not have the potential to impact historic properties and would not usually require the kind of information provided in a preliminary site check. Please note, a preliminary site check is not required to submit projects to the KHC/SHPO for Section 106 review and comment; the Site Protection Program will review all submissions received by our office. However, when an undertaking does have potential to impact historic properties (e.g. demolition, new construction, building renovation, etc.), and a preliminary site check has not been completed, staff may need to request additional information to facilitate review. This can increase your Section 106 timeline.

Are preliminary site checks solely designed for Section 106 review?

No. The Site Identification Program offers this service to a variety of interested citizens and groups looking for research assistance, information to use in planning, etc.

For Information:

Nick Laracuente
Site Protection Program Manager
(502) 564-7005, ext. 4566