When reviewing projects regulated by the Federal Communications Commission (FCC), such as the construction of telecommunication towers or the installation of broadband infrastructure, adhering to regulatory processes is paramount. One such critical aspect is compliance with Section 106 of the National Historic Preservation Act (NHPA). The NHPA mandates the consideration of the effects of federally funded or permitted projects on historic properties, including those of tribal significance. Understanding what happens during tribal review within the Section 106 process is essential for project managers, stakeholders, telecommunications and broadband providers, and tribal nations alike.
What is Section 106?
Section 106 of the NHPA requires federal agencies to consider the effects of their undertakings on historic properties. The Section 106 process affords the Advisory Council on Historic Preservation (ACHP), State Historic Preservation Officers (SHPOs), Tribal Historic Preservation Officers (THPOs), and state-recognized Native American tribes with an opportunity to participate in the identification and management of historic properties. For FCC-licensed projects, this process will involve assessing potential impacts on historic properties, including those of tribal significance, before project approval and initiation.
What is a Cultural Resource?
Cultural resources encompass a wide array of tangible and intangible elements that hold historical, archaeological, architectural, or cultural significance. These can include archaeological sites, historic buildings, artifacts, cultural landscapes, traditional practices, oral histories, and sacred sites. Essentially, cultural resources represent the physical manifestations and enduring traditions of past and present human societies, offering invaluable insights into the diversity and evolution of human culture over time. They are not only repositories of heritage, but also serve as sources of identity, knowledge, and inspiration for current and future generations.
It is critical to recognize that the definition of cultural resources may vary depending on the perspective, with nuances between the interpretations of archaeologists and Native American tribal entities. While archaeologists often focus on physical artifacts and historical sites, tribal perspectives will encompass a broader understanding. Native American tribes integrate elements like historic context, oral history, and the significance of traditional cultural flora and fauna into defining significant resources. As such, for tribal entities, cultural resources are not solely confined to tangible remnants of the past, but will include a holistic view that encompasses the interconnectedness of land, language, and traditional practices. Cultural and tribal resources reflect a deep-rooted relationship between people and place.
Tribal Review Under the Section 106 Process
Tribal review begins when the FCC or its designated applicant notifies relevant tribes of a proposed project subject to Section 106 review. This initiation triggers consultation between the FCC, project proponents, and tribal nations to identify any historic properties that may be affected.
According to Section 106 regulations, communication should honor tribal sovereignty. Moreover, consultation involves meaningful communication between the FCC and tribal nations to exchange information and perspectives regarding the project’s potential impacts on tribal cultural resources. Within this dialogue, tribes may provide input on the identification of historic properties, their significance, and potential mitigation measures.
Tribal Input and Communication
Cultural resources review will identify areas of a project that may have a higher sensitivity, pinpointing sites of historical, archaeological, or cultural significance. Cultural resources management (CRM) strives to preserve these invaluable assets. CRM also seeks to strike a delicate balance by promoting the advancement of infrastructure and other projects in a manner that respects and integrates the rich tapestry of cultural heritage present within a project’s footprint.
During the consultation process, tribes have the opportunity to express concerns. Tribal entities will also be able to provide additional information about cultural resources and propose measures to avoid, minimize, or mitigate adverse effects on tribal historic properties. The FCC and project proponents are obligated to consider tribal input in decision-making processes.
Ideally, consultation results in an agreement between the FCC, project proponents, and tribal nations regarding the treatment of historic properties and mitigation measures. This may involve modifications to the project design, avoidance of sensitive areas, or implementation of measures to mitigate adverse impacts.
Following consultation, the FCC and project proponents document the outcomes of tribal review, including any agreements reached and mitigation measures proposed. This documentation forms part of the Section 106 compliance record, demonstrating adherence to regulatory requirements.
Tribal review is not a one-time event, but rather an ongoing process that may require continued engagement throughout project implementation. Regular communication between the FCC, project proponents, and tribal nations ensures that concerns are addressed, and mitigation measures are effectively implemented.
Importance of Tribal Review
Tribal review within the Section 106 process is essential for promoting collaboration, respecting tribal sovereignty, and preserving cultural heritage. By engaging tribal nations as partners in project planning and decision-making, the FCC and project proponents can identify and address potential impacts on tribal historic properties in a manner that respects tribal perspectives and values.
Need Help with the Section 106 Compliance Process?
Tribal consultation and review is a vital component of the Section 106 compliance process for FCC licensed projects. Consultation ensures that the effects on tribal historic properties are identified, evaluated, and addressed in consultation with tribal nations. By fostering meaningful dialogue and collaboration, tribal review promotes the preservation of cultural heritage while facilitating responsible development.
As the telecommunications landscape continues to evolve, adherence to Section 106 requirements remains essential for achieving regulatory compliance and fostering positive relationships with tribal communities.
Reach out to Diablo Green for more information about Section 106.
Frequently Asked Questions About Section 106 Compliance
What happens if there’s disagreement during the consultation process?
If parties can’t reach an agreement, the ACHP may get involved. They can issue comments to the FCC, or in more complex cases, formalize a Memorandum of Agreement (MOA) to resolve the issue and allow the project to proceed.
How long does the Section 106 review process typically take?
The timeline varies greatly depending on project complexity and if significant historic properties are involved. Simple projects might have quick reviews, while large-scale projects with tribal concerns could take months or even longer if there’s disagreement.
Can the public participate in Section 106 review?
Yes! The public has the right to comment, especially if they have concerns or information about historic properties potentially affected by the project. The FCC typically outlines procedures for public comment in their project announcements.
What are some common mitigation measures during Section 106 review?
Mitigation measures range from slight project design changes to avoid sensitive sites, archaeological data recovery before construction, or even long-term monitoring agreements to protect discovered resources during project operation.
Are there any exemptions to Section 106 requirements?
Yes, but they are limited. Routine activities with established procedures to minimize impacts might be exempt. In emergency situations where immediate action is needed to protect lives and property, the FCC can expedite the process.