Section 106 of the National Historic Preservation Act (NHPA) requires federal agencies, including the Commission, to consider the effects of an undertaking on historic properties – historic structures and historic artifacts – before authorizing the undertaking. See 16 U.S.C. § 470f; see also Office of Energy Projects, Federal Energy Regulatory Commission, Guidelines for Reporting on Cultural Resources Investigations for Pipeline Projects 1 (Dec. 2002). Under the Commission’s regulations, project sponsors assist the Commission in meeting its NHPA obligations. 18 C.F.R. § 380.14(a) (2006).
To comply with NHPA, a federal agency must consult with state historic preservation officers (SHPOs) and, when applicable, tribal historic preservation officers (THPOs) to ensure that historic properties in the “area of potential effect” of the project are identified, adverse effects on historic properties are assessed, and means for mitigating adverse effects are considered. 36 C.F.R. §§ 800.4, 800.5(a), 800.6(a). Under the Commission’s regulations, the project sponsor is to consult with the SHPO/THPO. See Office of Energy Projects, Federal Energy Regulatory Commission, Guidelines for Reporting on Cultural Resources Investigations for Pipeline Projects 6 (Dec. 2002).
The federal Advisory Council on Historic Preservation (ACHP), an independent federal agency established pursuant to the NHPA, may also participate in the consultation process; if the SHPO and the Commission disagree on historic properties or adverse effects, the ACHP may provide an opinion on the Commission’s finding. 36 C.F.R. §§ 800.4(d)(1)(iii); 800.4(d)(1)(iv)(A); 800.5(c)(2)(ii); 800.5(c)(3)(i). The Commission need only take into account the ACHP’s opinion before reaching a final decision. 36 C.F.R. § 800.4(d)(1)(iv)(B)-(C); 800.5(c)(3)(ii). If consultation between the Commission, the SHPO and, at times, the ACHP fails to resolve adverse effects on historic properties by developing ways to avoid, minimize or mitigate such adverse effects, the Commission may terminate consultation with the SHPO and other parties and proceed with approving the proposed project. 36 C.F.R. § 800.7(a). Although the ACHP comments on the Commission’s decision to terminate consultation, the Commission is only required to “take into account” the Council’s comments in reaching a final decision on the undertaking. 36 C.F.R. § 800.7(c)(4).