On July 1, 2011, the Advisory Council on Historic Preservation issued a guidance document captioned “Limitations on the Delegation of Authority by Federal Agencies to Initiate Tribal Consultation under Section 106 of the National Historic Preservation Act.” A copy of the guidance document is attached. It is also available at: www.achp.gov/delegationmemo-final_7-1-11.pdf.
Section 1011(d)(6) of the National Historic Preservation Act provides that, in conducting a review process required by Section 106 of the Act, federal agencies must consult with any Indian tribe that “attaches religious and cultural significance” to any historic property that may be affected by the proposed federal undertaking. 16 U.S.C. § 470a(d)(6). This requirement is implemented through numerous provisions of the Advisory Council’s regulations. 36 C.F.R. part 800. The regulations allow federal agencies to authorize applicants for federal assistance, permits, and licenses to “initiate” the Section 106 consultation process. 36 C.F.R. § 800.2(c)(4). That subsection also provides that agencies that authorize applicants to begin the process nevertheless “remain responsible for their government-to-government relationships with Indian tribes.” The new guidance document clarifies the limits on the delegation of authority with respect to agencies’ consultation with Indian tribes.
The guidance expressly provides that “the authorization to applicants to initiate Section 106 consultation does not apply to the initiation of consultation with Indian tribes unless expressly authorized by the Indian tribe to do so.”
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