What's the difference between the "Vermont Division for Historic Preservation" and the "State Historic Preservation Office"?

There is none. The Vermont Division for Historic Preservation (DHP) acts as the Vermont State Historic Preservation Office (VTSHPO) for purposes of project reviews under federal laws.

What is "project review"?

Certain federal and Vermont state laws require that significant historic and archeological resources be identified, considered, and, whenever possible, protected in the course of planning a project. The DHP conducts or participates in "project review" in different ways depending on what triggers the review.

Does the DHP review all projects?

No. There are many projects with which the DHP has no jurisdiction. In many cases, projects only need local review to obtain local permits (such as a building permit from the town). If you are in doubt, contact the DHP.

Which laws trigger the project review by the DHP?

The DHP is involved in two major categories of project reviews: federal laws and state laws.

Federal laws: The DHP reviews projects primarily under Section 106 of the National Historic Preservation Act, referred to as "Section 106." However, DHP also can participate in project reviews under Section 110 of the National Historic Preservation Act, Section 4(f) of 49 USC 303 Policy on Lands, Wildlife and Waterfowl Refuges, and Historic Sites, the National Environmental Policy Act, and other laws and regulations. (See for a comprehensive list of laws, regulations, and procedures relating to protection and management of historic and archeological resources).

State laws: The DHP state reviews fall primarily under Act 250 (Title 10 of Vermont Statutes Annotated, Chapter 151); The Vermont Historic Preservation Act (Title 22 of Vermont Statutes Annotated, Chapter 14); and 30 VSA Chapter 5, Section 248 (Public Service Board's Certificate of Public Good). The DHP also participates in protecting historic resources under state laws that protect burial sites (13 VSA Chapter 81, Sections 3761, 3764, and 3765; and 18 VSA Chapter 107, Sections 5201 and 5212).

What is "Section 106"?

Section 106 of the National Historic Preservation Act requires that all federal agencies funding, permitting, licensing, or assisting a project (or "undertakings") consider the effect of that undertaking on "historic properties" listed on or eligible for inclusion in the National Register of Historic Places. Section 106 is described in detail on the Advisory Council for Historic Preservation website.

What's an "historic property"?

"Historic property" is a legal term used in Section 106 that includes any "prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register of Historic Places." This definition includes historic landscapes and settings, recorded or potential archeological sites, properties of traditional and cultural importance, and the artifacts, records, and remains that are related to and located within these properties.

Section 106 seems to include various players, such as the federal agency, the SHPO, the project developer and others? Who's "in charge"?

Under Section 106 the federal agency funding, permitting, licensing, or otherwise assisting the project is legally responsible for complying with the law. The DHP, acting as the SHPO, plays a "consultation role" in the Section 106 process. In this role, the SHPO provides a recommendation to the federal agency that is legally responsible for determining the effect of the undertaking on historic resources.

Do all federal agencies carry out Section 106 ways in identical ways?

No. Federal agencies have different requirements and procedures for complying with Section 106 based on the nature of their programs and statutory authorities. Sometimes alternative practices and requirements are established in Programmatic Agreements (PA). PAs currently exist with the USDA Natural Resources Conservation Service, USDA United States Forest Service, Federal Emergency Management Agency, Federal Highway Administration, Federal Communications Commission, Department of Housing and Urban Development HOME and Community Development Block Grant programs and U.S. Fish and Wildlife Service. Some of these PAs place an increased level of review activities and responsibilities on state agencies. For example, the PA with the Federal Highway Administration delegates various SHPO responsibilities to the Vermont Agency of Transportation.

What's the "Area of Potential Effects"?

The SHPO uses the federal definition of "Area of Potential Effects" (APE) to describe the maximum area that may be affected by a project. Both direct and indirect effects to historic resources must be considered when determining the APE.

"The geographic area or areas within which an undertaking may directly or indirectly cause changes in the character or use of historic properties, if any such properties exist. The area of potential effects is influenced by the scale and nature of an undertaking and may be different for different kinds of effects caused by the undertaking." [36 CFR 800.16(d)].

A few examples of project related impacts in an APE beyond the actual construction limits of the project include:

• Borrow areas and other sources of fill material.
• Disposal sites or waste areas.
• New or upgraded access or haul roads.
• Staging, storage, and stockpile areas.
• Drainage diversions.
• Changes to the character-defining features of a surrounding historic district.

What sequence of actions typically occurs during Section 106 project review?

Under the law, the federal agency funding, permitting, licensing, or assisting the project is responsible for the following actions. The reality in most cases is that the project applicant or developer (i.e., a state agency, a non-profit organization, or a private developer) carries out these actions, assisted by qualified professional consultants, in consultation with the DHP. All projects are different; many projects require only one or a few of these actions.

"Establish that the project is an "undertaking," that is, that it has the potential to effect historic properties.

"Establish the area of potential effect.

"Identify recorded historic properties that may be affected by the proposed project.

"Establish the likelihood that unidentified historic properties (historic and/or archeological resources, but see definition above) may exist in the project area.

"Evaluate the National Register eligibility of any historic properties within the project area.

"Apply the National Register criteria to properties that may be effected;

"Provide the SHPO with documentation that NO Historic properties exist in the project area. OR

"When historic properties ARE found, apply the criteria of effect.

"When effect is found, apply criteria of adverse effect

"Obtain DHP's (SHPO) concurrence.

What is Act 250 and who administers it?

Act 250 is a Vermont law designed to control development proposed on a relatively large scale, and/or in sensitive areas. The Act 250 process both protects Vermont's environment and gives neighbors, municipalities, local and regional planning commissions, and other interested parties a chance to participate and express concerns. Development and land subdivision proposals that fall under the Act's jurisdiction must apply for a land use permit. This permit can be granted, denied, or granted with conditions by one of Vermont's nine District Environmental Commissions, whose members are laypersons appointed by the governor. District Commission decisions can be appealed to the Natural Resources Board.

When do I need an Act 250 permit for my project?

An Act 250 permit is required for certain kinds of development, for example, construction for commercial or industrial purposes on more than 10 acres (except for farming or forestry). Various other situations require an Act 250 permit. To determine if you need a permit, contact your Act 250 district coordinator.



What is the DHP's role under Act 250 (10 V.S.A., Chapter 151)?

Under Criterion 8 of Act 250, District Commissions must make positive findings that a project will not have an undue adverse effect on historic sites. The Division reviews Criterion 8 of Act 250 permit applications. If a project requires an Act 250 permit, the Division will review project information submitted directly to our office by a permit applicant or will review the information contained in the original application submitted to the Agency of Natural Resources. However, it is in the applicant's best interest to contact the Division early in the project planning process so that comments from the Division can be incorporated into the project. The DHP has created rules that describe its Act 250 review; they also help Act 250 applicants (or pre-applicants) understand the process. The rules are available on our website.

What is 22 VSA 14?

22 VSA 14, The Vermont Historic Preservation Act, on behalf of the Vermont Advisory Council on Historic Preservation. The Division reviews projects when a state agency is involved with the project. It is the state agency's responsibility to seek comments about the project from the Division.