Preface to Section III
Undertakings that fall within the provisions listed in the following sections III.A. through III.F. are excluded from Section 106 review by the SHPO/THPO, the Commission, and the Council, and, accordingly, shall not be submitted to the SHPO/THPO for review. The determination that an exclusion applies to an Undertaking should be made by an authorized individual within the Applicant's organization, and Applicants should retain documentation of their determination that an exclusion applies. Concerns regarding the application of these exclusions from Section 106 review may be presented to and considered by the Commission pursuant to Section XI.
Enhancements
A. Enhancement of a tower and any associated excavation that does not involve a collocation and does not substantially increase the size of the existing tower, as defined in the Collocation Agreement. For towers constructed after March 16, 2001, this exclusion applies only if the tower has completed the Section 106 review process and any associated environmental reviews required by the Commission.
Replacement of Existing Tower
B. Construction of a replacement for an existing communications tower and any associated excavation that does not substantially increase the size of the existing tower under elements 1-3 of the definition as defined in the Collocation Agreement (see Attachment 1 to the Agreement, Stipulation 1.c.1-3) and that does not expand the boundaries of the leased or owned property surrounding the tower by more than 30 feet in any direction or involve excavation outside these expanded boundaries or outside any existing access or utility easement related to the site. For towers constructed after March 16, 2001, this exclusion applies only if the tower has completed the Section 106 review process and any associated environmental reviews required by the Commission's rules.
Temporary Communications Antenna
C. Construction of any temporary communications Tower, Antenna structure, or related Facility that involves no excavation or where all areas to be excavated will be located in areas described in Section VI.D.2.c.i below, including but not limited to the following:
(1) A Tower or Antenna authorized by the Commission for a temporary period, such as any Facility authorized by a Commission grant of Special Temporary Authority ("STA") or emergency authorization;
(2) A cell on wheels (COW) transmission Facility;
(3) A broadcast auxiliary services truck, TV pickup station, remote pickup broadcast station (e.g., electronic newsgathering vehicle) authorized under Part 74 or temporary fixed or transportable earth station in the fixed satellite service (e.g., satellite newsgathering vehicle) authorized under Part 25;
(4) A temporary ballast mount Tower;
(5) Any Facility authorized by a Commission grant of an experimental authorization.
For purposes of this Section III.C, the term "temporary" means "for no more than twenty-four months duration except in the case of those Facilities associated with national security."
Shopping Center/Industrial Areas
D. Construction of a Facility less than 200 feet in overall height above ground level in an existing industrial park, commercial strip mall, or shopping center that occupies a total land area of 100,000 square feet or more, provided that the industrial park, strip mall, or shopping center is not located within the boundaries of or within 500 feet of a Historic Property, as identified by the Applicant after a preliminary search of relevant records. Proposed Facilities within this exclusion must complete the process of participation of Indian tribes and NHOs pursuant to Section IV of the Agreement. If as a result of this process the Applicant or the Commission identifies a Historic Property that may be affected, the Applicant must complete the Section 106 review process pursuant to the Agreement notwithstanding the exclusion.
An industrial park is defined as a tract of land that is planned, developed, and operated as an integrated facility for a number of individual industrial uses, with consideration to transportation facilities, circulation, parking, utility needs, aesthetics and compatibility.
A commercial strip mall is described as a structure or grouping of structures, housing retail business, set back far enough from the street to permit parking spaces to be placed between the building entrances and the public right of way.
A shopping center is defined as a group of commercial establishments planned, constructed, and managed as a total entity, with customer and employee parking provided on-site, provision for goods delivery separated from customer access, aesthetic considerations and protection from the elements, and landscaping and signage in accordance with an approved plan
Utility Corridor
E. Construction of a Facility in or within 50 feet of the outer boundary of a right-of-way designated by a Federal, State, local, or Tribal government for the location of communications Towers or above-ground utility transmission or distribution lines and associated structures and equipment and in active use for such purposes, provided:
(1) The proposed Facility would not constitute a substantial increase in size, under elements 1-3 of the definition in the Collocation Agreement, over existing structures located in the right-of-way within the vicinity of the proposed Facility, and;
(2) The proposed Facility would not be located within the boundaries of a Historic Property, as identified by the Applicant after a preliminary search of relevant records. Proposed Facilities within this exclusion must complete the process of participation of Indian tribes and NHOs pursuant to Section IV of the Agreement. If as a result of this process the Applicant or the Commission identifies a Historic Property that may be affected, the Applicant must complete the Section 106 review process pursuant to the Agreement notwithstanding the exclusion.
Previously Designated Area by SHPO/THPO
F. Construction of a Facility in any area previously designated by the SHPO/THPO at its discretion, following consultation with appropriate Indian tribes and NHOs, as having limited potential to affect Historic Properties. Such designation shall be documented by the SHPO/THPO and made available for public review.
Note: In the event of a conflict between the advice given in this training module and the rules and policies adopted in the NPA, the text of the NPA governs.
Question
I plan to build a tower that falls within one of the exclusions. Do I need to contact the SHPO?
Do I need to identify and contact Indian tribes? What records should I keep? Do I need to use a professional expert?
If a tower falls within an exclusion there is no requirement to contact the SHPO. However, when using the exclusions described in III D (Commercial Areas, etc) & III E (designated utility rights of ways), Indian tribes and NHOs must be contacted and given the opportunity to comment pursuant to Section IV.
An applicant should keep records that support a determination that the area meets the criteria for exclusion.
The NPA does not require the use of Secretary of Interior qualified staff to determine whether an exclusion applies.
Question
May a tower owner perform routine servicing and maintenance work on a tower without conducting a Section 106 review for that activity?
Yes. Routine servicing and maintenance of a tower is not a federal undertaking and therefore a Section 106 review is not required.
Question
I am replacing a rusting cell tower with another tower of the same size. Do I need to go through the NHPA review?
Ordinarily not. Under most circumstances, you do not need to go through National Historic Preservation Act (NHPA) review if the new tower is replacing an existing tower and does not involve a substantial increase in size (See Section I.C of the Collocation Agreement). In addition, the replacement tower exclusion permits construction and excavation within 30 feet in any direction of the leased or owned property previously surrounding the original tower. However, if the existing tower was completed after March 16, 2001, and did not complete NHPA review, you need to perform NHPA review for the replacement tower.
Question
I am replacing a 100-foot tower with a 200-foot tower. Do I need to complete NHPA review?
Yes. The new tower would constitute a substantial increase in size over the old tower, and review is therefore required.
Question
I need to use a temporary tower, and I will not be performing excavation. Do I need to go through NHPA review?
No. The NPA permits the erection of facilities involving an excavation without NHPA review for a temporary period not to exceed 24 months. Such temporary facilities might include, for example, a facility authorized by a Commission grant of Special Temporary Authority, a cell on wheels, a broadcast auxiliary services truck, a temporary ballast mount tower, a facility authorized by a Commission grant of an experimental authorization.
Question
I need to use a temporary tower. I will be performing excavation, but only on ground that has already been disturbed. Do I need to complete NHPA review?
No, provided that the areas where you plan to dig have been previously disturbed to at least two feet deeper than your planned excavation (excluding footers and other anchoring mechanisms). If the previous disturbance is not at least two feet below your planned excavation, or if it does not cover all of the area you plan to excavate, then you need to do a complete review.
Question
The commercial area exclusion allows certain towers to be located without SHPO review in industrial parks, strip malls, and shopping centers that are not located within 500 feet of a historic property. What are the guidelines for determining the boundary for the historic property?
If the site is listed on or has been evaluated for the National Register, its boundary will be the one identified in the National Register document or proposed at the time of nomination. Otherwise the most logical boundaries shall be used. In many instances the legal boundaries of the property on which the site thought to be eligible is located are appropriate site boundaries for the purposes of the exclusions.
Question
The commercial area exclusion is limited to industrial properties, strip malls and shopping centers with a total land area of 100,000 square feet or more. Does this include parking lots and landscaped areas?
Yes. The 100,000 square feet includes all the space within the legal boundaries of the parcel(s) on which the industrial property, strip mall and shopping center is located.