Can agencies, the ACHP, and/or the SHPOs/THPOs agree to “waivers” or “exemptions” to the requirements of Section 106 for Recovery Act programs and projects?
No. Programs or projects that are subject to Section 106 may only get exemptions as provided by a program alternative established under 36 CFR Section 800.14. Specifically, an exemption can be granted by the ACHP after following the process detailed under 36 CFR Section 800.14(c). Note, however, that in order to receive such an exemption, the project or program must meet certain standards. One such standard is that its potential effects to historic properties must be foreseeable and likely to be minimal or not adverse. Another program alternative that may be used to exempt certain undertakings from Section 106 review is a Programmatic Agreement (PA), under 36 CFR Section 800.14(b), providing that specific activities do not need to undergo Section106 review. This usually comes in the form of a PA covering a program and listing agreed-upon, specific activities within that program that will not be subjected to review.
