Understanding the State and Federal Project Review Process

About state and federal project review

Each year, Maryland Historical Trust (MHT) reviews thousands of projects across the state, ranging from small local projects to large infrastructure efforts to ensure Maryland’s historic buildings, structures, landscapes, objects and archaeological sites (collectively, “historic properties”) are considered before work begins. 

This review applies to projects that involve state or federal funding, permits, licenses, land, or other government actions. It is required by state and federal law, including Section 106 of the National Historic Preservation Act and the Maryland Historical Trust Act. These laws ensure that preservation concerns are addressed early in project planning and that the public can participate in decisions about historic properties.  

Ultimately, the historic preservation review process is deliberative and does not result in a particular outcome. Agencies, through consultation with MHT and relevant parties, must balance multiple and often conflicting concerns to make sound project planning decisions. 

Four steps to Section 106 review 

This page gives an overview of how project review happens through the four steps of the Section 106 process – from first contact to final decision – and how you can take part. 

“Section 106” refers to the federal law and process, where MHT participates as the federally designated State Historic Preservation Office. The steps required for review under state law are the same. Ultimately, the responsible state or federal agency must complete these requirements prior to making a final decision to fund or approve a project.  

For more detailed information, guidance, and training on the federal process, please see the Advisory Council on Historic Preservation’s web page. 

Step 1: Start the consultation 

If a project involves state or federal funding, permits, licenses, or actions, the state or federal agency responsible for the project (the lead agency) typically submits it to MHT for review. In some cases, the lead agency may ask another party—such as another agency, a consultant, a permit applicant or a grant recipient—to start the review on its behalf. Regardless of who submits the materials, the review follows the same steps.    

Review begins with consultation between MHT, the applicant, and any other involved parties (called “consulting parties”). Consulting parties may include local governments, Indian tribes, property owners, nonprofit organizations, and other stakeholders with a demonstrated legal, economic, or cultural interest in a project or its potential effects. The lead agency determines which parties meet these criteria and invites them to participate in consultation.  

During this step, participants: 

• Clearly identify the federal and/or state involvement in the project
• Share project information and maps
• Identify the area where the project could directly or indirectly affect historic properties (known as the “Area of Potential Effects” or “APE,” which may be larger than the permit area or project site)
• Identify any previous reviews or related approvals
• Discuss possible effects on nearby historic properties or archaeological sites 

Learn how to submit a project for review.

Step 2: Identify historic properties 

Next, MHT and the applicant determine whether any historic properties are in or near the project area (the “Area of Potential Effect”). 

For this review, only properties that are listed in or eligible for listing in the National Register of Historic Places are considered.  To identify these places, MHT may: 

• Review existing information in the Medusa database
• Recommend field surveys or research using MHT's Standards & Guidelines for Architectural and Historical Investigations or Standards & Guidelines for Archaeological Investigations 

If a property is identified that may be historic but is not listed in the National Register, the agency (or a qualified consultant hired by the agency, developer, or other project lead) will investigate that property to see if it meets National Register criteria. Before conducting new research, however, it is important to consult with MHT to develop the necessary scope of work.  

The agency then presents its findings to the MHT reviewer for comments and/or concurrence. If MHT concurs with the findings, Determination of Eligibility (DOE) forms created through this process are recorded in Medusa to help inform future projects and planning efforts.   

Learn how to prepare a DOE form.

Step 3: Assess effects

If historic properties are identified in Step 2, MHT and the agency review the proposed work to see whether it will affect those properties. This step considers direct, indirect, and cumulative impacts of the project.  

If a proposed project will harm historic properties, to the extent that it may make a property ineligible for the National Register, this is considered an “adverse effect.” The agency must explore ways to either avoid or minimize those impacts. 

If an adverse effect is unavoidable, MHT works with the lead agency and consulting parties to find ways to mitigate harm to the historic properties. Consulting parties play an important role in developing meaningful mitigation measures that will benefit the public. 

Step 4: Resolve adverse effects 

If harm to historic properties cannot be avoided, the lead agency will continue consultation with MHT and stakeholders to reach an agreement on protective or mitigation measures that will help compensate for damage to or the loss of important historic properties.  

The agreement is usually recorded in a Memorandum of Agreement or Programmatic Agreement signed by all parties. It is the responsibility of the lead state or federal agency to ensure the implementation of the agreement document. 

Learn how to participate in project review.

Consulting with Indian tribes

MHT encourages federal and state agencies to engage in consultation with Indian tribes with a possible interest in the project and to do so at the earliest possible point in the project planning process.  

If you are a member of an Indian tribe or Indigenous community and wish to participate in the project review process, read about public participation in project review and contact the lead state or federal agency directly. 

Federal and state agencies' role

Agencies should: 

• Notify tribes early in project planning
• Respect tribal confidentiality requests when sensitive site information is shared
• Document consultation efforts as part of the project record 

Consulting with federally recognized tribes  

The National Historic Preservation Act requires federal agencies to consult with federally recognized tribes when a project may affect places that are important to a tribe’s culture or religion. It is the responsibility of the federal agency to identify the tribes that should be consulted and initiate consultation. 

The agency must show that they provided the appropriate tribes with a reasonable opportunity to: 

• Share their concerns about historic properties
• Help identify and evaluate those properties
• Comment on the project's potential effects on historic properties
• Participate in resolving adverse effects 

Although no federally recognized tribes reside in Maryland today, many tribes with ancestral connections to the state still have an interest in historic places here. Agencies can use consultation guidance from the Advisory Council on Historic Preservation and the Department of Housing and Urban Development’s Tribal Directory Assessment Tool to find the correct appropriate tribal contacts and areas of interest.  

Consulting with state-recognized tribes and Indigenous communities 

The Maryland Commission on Indian Affairs is the state’s main point of contact for Indigenous communities and a helpful resource. 

Maryland has three state-recognized tribes:

• Piscataway Indian Nation

• Piscataway Conoy Tribe

• Accohannock Indian Tribe

Agencies should consult with the Maryland Commission on Indian Affairs, state-recognized tribes and Indigenous groups when a project may affect places important to them. In the project review process, these parties are considered “consulting parties,” with the same opportunities for participation as other consulting parties with a demonstrated interest in the project.  

Coordinating with other review processes 

Some projects are reviewed under multiple state or federal laws, such as the National Environmental Policy Act or Section 106 of the National Historic Preservation Act. Lead agencies can often coordinate reviews to reduce duplication. 

If the project also requires local permitting or project review (for example, through a local historic preservation commission), MHT encourages agencies to begin the local review first. Local reviews do not replace project review by MHT, but they may generate helpful information for MHT's review. 

If a project will have state or federal involvement, the agency must consult with MHT before any archaeological survey, building renovations, demolition, or construction activities begin – including those that have been required or approved by a local jurisdiction.