Review and Compliance
Introduction
Any new construction projects or renovations to existing buildings that require funding, licenses, or permits from any state or federal governmental agencies must be reviewed by the Massachusetts Historical Commission (MHC) for impacts to historic and archaeological properties. It is the nature of the federal or state agency involvement that triggers MHC review, not listing in the National or State Registers of Historic Places. A listing in either register does not necessarily require review and likewise, lack of listing does not eliminate the need for review.
MHC review is conducted in compliance with both federal and state statutes and regulations.
Federal Review
Any projects that require funding, licenses, or permits from federal agencies must be reviewed in compliance with Section 106 of the National Historic Preservation Act of 1966. Section 106 requires federal agencies to take into account the effects of their actions on historic properties. “Section 106 review,” follows a specific process, which is guided by federal regulations (36 CFR 800). These regulations have created a series of steps by which federal agencies identify and evaluate historic properties that may be affected by their undertakings, assess adverse effects to those properties, and take prudent and feasible measures to avoid, minimize, or mitigate those effects. In Massachusetts, these steps are taken in consultation with the Massachusetts State Historic Preservation Officer (SHPO). The MHC is the office of the SHPO. Other interested parties such as local historical commissions or Indian Tribes are also consulted. More information on Section 106 review and a copy of the federal regulations 36 CFR 800 are available at the Advisory Council on Historic Preservation (ACHP) web site.
Examples of Federal Agencies and Actions Typically Subject to 106 Review
State Review
Any projects that require funding, licenses, or permits from any state agency must be reviewed by MHC in compliance with Massachusetts General Laws Chapter 9, sections 26-27C. This law creates the MHC, the office of the State Archaeologist, and the State Register of Historic Places among other historic preservation programs. It provides for MHC review of state projects, State Archaeologist’s Permits, the protection of archaeological sites on public land from unauthorized digging, and the protection of unmarked burials. Unofficial texts of these laws may be found at www.state.ma.us/legis/laws/mgl. The regulations that guide MHC review of state funded, licensed or permitted projects are published in 950 CMR 71. Texts of Massachusetts regulations are not published on the web. Copies of 950 CMR 71 and 950 CMR 70 are available from the State House Bookstore. These regulations set up a process that mirrors the federal “Section 106” regulations: identification of historic properties; assessment of effect; and consultation among interested parties to avoid, minimize, or mitigate any adverse effects.
Examples of State Agencies and Actions Typically Subject to MHC Review
MEPA Review
Another important state review process in which MHC participates is review under the Massachusetts Environmental Policy Act (MEPA), which directs state agencies to take into account the effects of their actions on the environment, including historic properties. Information on MEPA is available at www.state.ma.us/envir/mepa.
These laws and regulations set up processes to ensure that government agencies “look before they leap.” They do not necessarily stop government from acting, but ensure that government actions are studied in consultation with interested parties, and that proposed actions be modified, if feasible, so that public funds are not used in ways that cause needless destruction to our heritage. In short, they promote responsible and responsive government.
MHC also participates in consultation under the Massachusetts Unmarked Burial Law. Further information on the Unmarked Burial Law is available elsewhere on this web site
Download Know #4: What to do When Human Remains are Accidentally Uncovered (PDF)
Frequently Asked Questions
General Questions
- How do you start the MHC review process?
The best way to initiate MHC review is to submit a completed Project Notification Form (PNF) to the MHC by mail or courier. The MHC cannot accept email transmissions in compliance with state and federal historic preservation law and regulations. There is no fee for MHC review. MHC submits its comments to project proponents in writing, not by telephone or e-mail.
- When should I submit a PNF?
You should submit as early as possible in the project planning process.
- Who can complete a Project Notification Form?
The PNF must be completed by the project proponent or their appointed agent.
- How do you get a Project Notification Form (PNF)?
The Project Notification Form and instructions for completing the form can be downloaded from this web site.
- What will MHC do with a completed PNF, and how long will it take?
Once received at MHC, the PNF will be reviewed by our professional staff. Within 30 days of receipt, MHC will respond in writing. The response will include information on
- whether there are known or anticipated historic or archaeological properties within the project area,
- whether the project is likely to affect historic or archaeological properties,
- whether further MHC review is warranted,
- whether additional information is needed to assess the likelihood that historic or archaeological properties will be affected by the proposed project,
- whether an archaeological survey or historic study of the property is warranted, and
- what, if any, avoidance or mitigation measures may be appropriate.
If, after review of the PNF submittal and MHC files, MHC determines that the project is unlikely to affect significant historic or archaeological resources, MHC review is complete. If the MHC does not respond within 30 days, the project may proceed as planned.
- Should I telephone MHC to inquire as to the status of the review my project?
It is not advisable. MHC has a small staff and such phone calls take staff time away from project reviews. Therefore telephoning MHC can actually result in a delay in MHC’s response time.
- Should I meet with MHC staff to present my project information in person?
No. Send in a completed Project Notification Form. MHC staff will review it and will meet with you if necessary
- What can I do to have my review expedited?
The best way to have your review expedited is to make sure the information you submit is complete, so that MHC does not need to request additional information. When completing a PNF, be sure to follow the instructions in the MHC form titled “Guidance for Completing the Project Notification Form.”
- Will MHC review delay a project?
There is no reason that MHC review should delay a project as long as the project planners contact MHC (by submitting a PNF) early in the project planning process. Delays are most frequently caused when project planners wait until the eleventh hour to submit project information to the MHC, or submit incomplete information.
- What are the benefits of MHC review?
MHC review provides project proponents with the opportunity to ensure that their projects are planned responsibly, so that development takes place without causing harm to historic properties and important archaeological sites. Even where a project does not require federal or state funding, licensing, or permitting, the consultation process can offer a forum in which to discuss the issues and can assist the proponent in addressing community and preservation concerns.
- What is the difference between the State Register of Historic Places and MHC’s Inventory of the Historic and Archaeological Assets of the Commonwealth?
The State Register of Historic Places contains properties that have received local, state, or national designations based on their historical or archaeological significance. MHC’s Inventory of the Historic and Archaeological Assets of the Commonwealth is a much larger data base of sites, structures, buildings, districts, and other properties that have been identified in the Commonwealth and brought to the attention of the MHC. It includes the properties listed in the State Register as well as thousands of others that may or may not be eligible for listing in the State Register.
- What constitutes a historic property or significant archaeological site?
Historic properties and significant archaeological sites are those that meet the criteria of eligibility for listing in the National or State Registers of Historic Places. Criteria for National Register eligibility are listed at www.cr.nps.gov/nr/listing.
- What are the criteria of eligibility of an archaeological site, historic structure, or district for listing in the National and State Registers of Historic Places?
Criteria for National Register eligibility are listed at www.cr.nps.gov/nr/listing.
- What happens if a National Register eligible or listed site, building, or structure is located within a project impact area?
If a National Register eligible or listed site, building, or structure is identified within the impact area of the project, MHC (state reviews) or the federal agency in consultation with MHC (federal Section 106 reviews) will apply the criteria of effect to determine whether the effect will be adverse. For information on the criteria of effect, see 36 CFR 800.5 (federal) or 950 CMR 71.05 (state). Not all projects have adverse effects on historic properties. If the project is found to have no adverse effect, MHC’s review is complete.
- What happens if the project is determined to have an adverse effect to a significant historic or archaeological property?
If a project is found to have an adverse effect to a significant historic property or archaeological site, MHC enters into consultation with the project proponents and, as warranted, other government agencies and other interested parties. The goal of the consultation is to arrive at prudent and feasible measures that will avoid, minimize, or mitigate the adverse effect. The proponent may be asked to submit an analysis of alternatives in order to determine if there are feasible alternatives that will avoid, minimize, or mitigate the adverse effect.
The end result of the consultation process is the developing and signing of a Memorandum of Agreement (MOA) between the proponent, MHC, the state or federal funding, permitting, or licensing agency, and other participating parties as warranted. An MOA is a written agreement signed by the consulting parties. It stipulates the measures that will be taken to avoid, minimize and/or mitigate the adverse effects and states that the signatories agree to these measures. Once the stipulations of the MOA are fulfilled, MHC review is complete.
- How is MHC review related to MEPA review?
MHC review is related to MEPA review in two important ways. First, MHC review may be important in determining whether a project will require MEPA review. Second, MHC reviews all Environmental Notification Forms, which are filed as part of the MEPA review process.
MEPA review is required of all projects that involve state agency action (e.g., funding, licensing, or permitting), and that that trigger one or more “review thresholds.” A complete list of MEPA review thresholds is available at MEPA - Massachusetts Environmental Policy Act Office.
One MEPA review threshold is that if the project will result in damage to a property listed in MHC’s Inventory of the Historic and Archaeological Assets of the Commonwealth or in the State Register of Historic Places, an Environmental Notification Form (ENF) must be filed with MEPA. For more information on current MEPA regulations, click on the following link:
MHC reviews all Environmental Notification forms and comments on those in which there are concerns that the project has the potential to affect significant historic or archaeological properties. MHC comments directly to the Secretary of Environmental Affairs, as stipulated in MEPA’s instructions for submitting comments. Citizens who are concerned about the effects of a project that is undergoing MEPA review can comment directly to the Secretary of Environmental Affairs. If the concerns include historic or archaeological resources, MHC would appreciate a copy of the letter.
- I’m concerned about a proposed new development and its threat to a historic property. What can be done about it?
If the proposed new development will involve state or federal funding, licenses or permits, the project proponent must submit a PNF. See the introduction to this section.
If the proposed new development will involve only local permits, contact your local historical commission to see whether the property is in a Local Historic District or whether your municipality has a demolition delay by-law.
Archaeological Questions
- What happens if MHC requests that an archaeological survey be conducted for a project?
If, after reviewing a PNF or ENF, MHC requests that an archaeological survey be conducted for all or a portion of the project impact area, the proponent should engage the services of a qualified archaeological consultant to conduct the survey.
- I have been told by a consultant that my project will have to have an archaeological survey. How should I proceed?
Proponents should submit a completed PNF to the MHC even if they anticipate that MHC will request an archaeological survey. MHC’s review of the PNF may provide important information regarding the appropriate scope of the survey and may identify additional historic concerns of which the proponent may be unaware. After review of the PNF and MHC files, MHC may even determine that no archaeological survey is warranted.
- Does MHC maintain a list of archaeological consultants?
MHC does not maintain a list of archaeological consultants. However, there are a number of firms that conduct such research in Massachusetts and proponents should solicit proposals from several such firms.
- How long does an archaeological survey take?
Each archaeological survey is unique and completion time depends on the size of the project area, the scope of the investigation, weather conditions, and other factors. The best way to answer this question is to ask the archaeological consultant who will be performing the survey.
- What if the archaeological survey does not find evidence of any archaeological sites?
If, after reviewing a report on the results of the survey, MHC concurs that the results of the survey indicate that no significant archaeological sites exist within project impact areas, MHC will inform the proponent by letter within 30 days of receipt of the report. If no significant archaeological sites or other historic properties will be affected by the project, MHC review is complete.
- What if the archaeological survey finds a potentially significant site?
If, after reviewing a report on the results of the survey, MHC concurs that the results of the survey indicate that one or more significant archaeological sites exist within project impact areas, MHC will recommend that the sites be avoided, or, if avoidance is not possible, that further archaeological testing be conducted in order to evaluate the sites to determine whether they are eligible for listing in the State and National Registers of Historic Places.
- What is a State Archaeologist’s Permit?
The State Archaeologist’s Permit is required for all archaeological consultants who conduct research pursuant to state and federal preservation law. State Archaeologist’s Permit Regulations are published in 950 CMR 70, copies of which may be obtained from the State House Bookstore. The permit regulations are intended to protect both project proponents and archaeological resources by ensuring that only qualified professional archaeologists conduct such work, that their research designs are appropriate to the project, that their research meets professional standards, that artifacts recovered from their research are properly curated, and that high quality research reports are prepared for each project.
Permit applications must come from the archaeologist. The State Archaeologist reviews the permit application to determine whether it is complete and adequate. If the application is not complete, the State Archaeologist must notify the archaeologist within 10 working days. If the application is complete, the State Archaeologist has 60 days within which to issue the permit. Every effort is made to expedite State Archaeologist’s Permit review. There is no fee for the permit.
- What should be done if human remains are found during construction or under other circumstances (agriculture or erosion, for example)?
Immediately stop whatever activity has caused the disturbance of the remains and contact the State Police. Further procedures in the event of the accidental discovery of human remains are available elsewhere on this web site www.sec.state.ma.us/mhc/mhcpdf/knowhow4.pdf.
- I’m concerned that stone piles in a project area may be Native American grave markers. What should I do?
Piles or continuous walls of fieldstones are common in rural Massachusetts wherever there are rocky soils. When historians and archaeologists have conducted thorough, professional research into such stone piles, they have invariably shown that these features are not associated with the Native American settlement of Massachusetts. When it is possible to determine their origin, stone piles prove to be related to agricultural activities such as clearing of fields for pasture or cultivation, and/or marking property bounds during the eighteenth and nineteenth centuries, pursuits that were once much more common in what may now be residential suburbs. Because stone piles or walls often marked property lines or boundaries between different land uses such as pasture and woodlot, they are often in a linear row or other geometric pattern, some of which may be consistent with cardinal compass points, solstice sunrises or sunsets, or other celestial phenomena.
Architectural Questions
- Is the property I am concerned with listed in the State or National Register of Historic Places?
This is not the right question to ask. It is not whether a property is listed in the State or National Register of Historic Places but whether there are state or federal funding, licenses, or permits involved that determine whether MHC reviews a project (see INTRODUCTION)
- Should I send current photographs of standing structures and the general setting in a project area when submitting a complete PNF?
Yes. When completing a PNF, be sure to follow the instructions in the MHC form titled “Guidance for Completing the Project Notification Form.”
- How long does MHC review take?
Within 30 days of receipt of a PNF, MHC will respond in writing.