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Federal and State Law Summary
What is it?
 

 Portland Building
Portland, Multnomah Co.
Review of projects involving historic or archaeological resources in Oregon takes place under both federal and state laws. Section 106 of the National Historic Preservation Act of 1966 (NHPA) requires every federal agency to "take into account" how its projects and expenditures will affect historic properties, which includes prehistoric and historic sites. State and local governments and others using federal funds are also required to comply with Section 106. State agencies, counties, cities, and "and any other governmental unit within the state not included in ORS 358.635" are subject to a similar state law under Oregon Revised Statute (ORS) 358.653. This law pertains only to real property owned by the agency. Those affected by these laws will only need to comply with the provisions of Section 106 or ORS 358.653, not both.
 
Projects subject to review under both the federal and state law include construction, rehabilitation, remodeling, demolition, and transfer of public property. For federal projects, Section 106 documentation must be completed for funding, licenses, permits, loan guarantees, transfer of federal property, etc, as well. Please contact the office for questions about the applicability of state or federal law to your project.

 

Documenting Historic (Above Ground) Resources - Oregon SHPO website with forms and instructions for completing Section 106 and ORS 358.653 documentation. 
 
Documenting Archaeological (Below Ground) Resources - Oregon SHPO website with forms and instructions for completing Section 106 and ORS 358.653 documentation.

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Section 106 Review Process
Federal Law
Section 106 of the National Historic Preservation Act of 1966 (NHPA) requires every federal agency to "take into account" how its projects and expenditures will affect historic properties, which includes prehistoric and historic sites.
 
Links to the complete text of the National Historic Preservation Act of 1966 and the federal regulations for the administration of the Section 106 process are below. Both documents are provided by the Advisory Council on Historic Preservation, the federal advisory board responsible for the national administration of the 106 process.
National Historic Preservation Act of 1966 - Federal law that created the National Register of Historic Places, Advisory Council on Historic Preservation, and the 106 review process.
 
36 CFR Part 800 - Chapter of the "Code of Federal Regulations" that specifies what agencies and SHPOs are obligated to do under Section 106.

Section 106 Process Overview
The review process involves six steps:
 
Step One: The agency determines whether its proposed action is an undertaking. An undertaking is defined as 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; and those requiring a federal permit, license or approval.
 
Step Two: The agency determines the Area of Potential Effect (APE) and decides on an appropriate survey methodology in consultation with the Oregon SHPO. The appropriate APE will vary from project to project and may include physical, visual, and auditory effects. Contact the SHPO before work begins to avoid unnecessary documentation or delay in completing the Section 106 process.
 
Agencies are required to contact and consult with the appropriate Native American Nation when an undertaking takes place on tribal lands or when an undertaking will affect Native American cultural sites. A list of contacts can be found on our website: Native American Nation Contacts. Consultation with other interested parties such as Certified Local Governments is also encouraged.
 
Step Three: The agency determines if the resources within the APE are already listed in the National Register of Historic Places or may be eligible for listing. Eligible historic properties are those that are at least 50 years of age and maintain the majority of their historic features, called historic integrity. If a building meets these minimum qualifications it is considered eligible for the Register unless the agency can prove otherwise through further historical or archaeological studies. The eligibility of archaeological resources is based on careful recordation and evaluation according to professional standards. These guidelines are available here: Guidelines for Conducting Field Archaeology in Oregon.
 
Step Four: The agency decides what the effect of the undertaking will be. A project is said to have "No Effect" if there are no eligible properties in the APE, or a historic property is not affected in anyway. An undertaking may have "No Adverse Effect" if the project does impact the historic property, but the effect is minimal. If the proposed work will diminish the features that qualify a resource for listing the project is said to have an "Adverse Effect."
 
Step Five: The agency or government consults with the State Historic Preservation Office (SHPO) on its determinations by submitting proper documentation for the impacted properties.
 
Step Six: SHPO either concurs with the agency's determinations or does not concur.

If SHPO Concurs:
  • No Historic Property, No Effect, or No Adverse Effect: You are finished with the Section 106 Review consultation process.
  • Adverse Effect: The agency enters into a "Memorandum of Agreement" (MOA) to mitigate the adverse effect or submits a research design to mitigate adverse effects through proper recovery. The MOA is signed by the agency and SHPO. The federal agency submits the MOA to the Advisory Council, along with a description of the project and the alternatives that were considered to mitigate the "adverse effect." The Advisory Council has 30 days to review the project and decide if it is willing to sign the MOA. Once the MOA is signed, the documentation should be completed and accepted by designated repositories before the project begins.
 
If SHPO Does Not Concur: Federal agencies may appeal to the Keeper of the National Register of Historic Places or the Advisory Council on Historic Preservation.
 
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State Law
Review of projects involving historic or archeological resources owned by state agencies, local governments, and taxing districts is governed by ORS 358.653. The process follows the same steps as the federal 106 process; however, the Advisory Council on Historic Preservation is not involved in the consultation.
ORS 358.653 Fact Sheet [pdf] - Explanation of the provisions of ORS 358.653 and directions on how to comply with the statute.
 
ORS 358.653 - Complete text of the state law pertaining to the protection of cultural resources in pubic ownership. Scan down the webpage to find the correct citation.
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