presented by: the ohio department of transportation 1 36 cfr part 800 protection of historic...

Presented by: The Ohio Department of Transportation

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36 CFR Part 800Protection of Historic Properties

Section 106

Managing the Environmental & Project Development Process


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Section 106 of the National Historic Preservation Act (16 U.S.C. 470f) says:

“The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under Title II of this Act a reasonable opportunity to comment with regard to such undertaking.”

The implementing regulations for Section 106 are those found at 36 CFR Part 800

What is Section 106?



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Definition:

“…means any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register of Historic Places maintained by the Secretary of Interior. This term includes artifacts, records, and remains that are related to and located within such properties. The term includes properties of traditional religious and cultural importance to an Indian tribe …and that meet the National Register criteria.”

(36 CFR Section 800.16[l][1])


Historic Property


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• Federal agencies

• Advisory Council on Historic Preservation (ACHP)

• Consulting parties

• Public

Participants in Section 106 Process



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• Federal agency is responsible for complying with Section 106 and making all decisions required for compliance.

• The definition of “Federal agency” includes local and state governments that have been delegated responsibility for compliance with Section 106.


Federal Agencies


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• It is an independent Federal agency composed of President-appointed council and professional staff.

• Issues regulations, guidance, and advice on Section 106 compliance and oversees Section 106 process.

• Consults with and provides comments to Federal agencies on the effect of programs and undertakings on historic properties.

ACHP



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• State Historic Preservation Office (SHPO)

• Local governments and applicants for federal assistance, permits, licenses, and approval (includes ODOT)

• Federally recognized Native American Indian tribes and Native Hawaiian organizations

• Individuals/organizations with demonstrated legal, economic, or preservation interest who ask to participate, as agreed to by FHWA, ODOT, SHPO, and Council

• Other parties agreed to by FHWA, ODOT, SHPO, and Council


Consulting Parties


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• Public participation is important and required [36 CFR Section 800.2(d)].

• Basic requirement of Section 106 is to provide information on effects to historic properties and seek public input.

• Public views are “essential to informed Federal decision making.”

• Agencies may use established public involvement procedures where appropriate (e.g., NEPA public involvement process).

• Public may provide views at their own initiative.


The Public


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• Agency must ensure that all determinations, findings, and agreements reached through the Section 106 process are supported by adequate documentation to enable anyone, including the public, to understand the basis of all decisions.

• 36 CFR Section 800.11 provides details on documentation standards and guidance on the adequacy of documentation.

Documentation



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ODOT’s Section 106 Process:

• 36 CFR Section 800.14(b) allows for the negotiation of a programmatic agreement to govern the implementation of a particular program

• In Ohio, we have a Programmatic Agreement between ODOT, FHWA, the SHPO, and ACHP for the implementation of ODOT’s program


ODOT’s Revised Section 106 Programmatic Agreement


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• Executed November 30, 2011

• Signed by ACHP, FHWA, SHPO & ODOT

• Broad responsibilities delegated to ODOT, which functions on behalf of FHWA

• It is ODOT’s Section 106 Process




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• The new agreement includes: Appendix A: Project types that may be cleared at

the District level (CE Exempt) Appendix B: Project types that may be cleared by

OES with no SHPO involvement

• SHPO receives all other findings issued by ODOT for either a 15-day non-objection period or 30-day formal review.

http://www.dot.state.oh.us/Divisions/Planning/Environment/Cultural_Resources/Documents/Sec106PA-signed.pdf




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• Establish undertaking

• Identify Appropriate SHPO/THPO

• Plan to involve the public

• Identify other consulting parties

(Refer to ACHP flow chart)

Step I: Initiate Section 106 process



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FHWA & ODOT often use the NEPA public involvement process to achieve the Section 106 public involvement goal, but there can be separate meetings with Consulting Parties.

Step I: Initiate Section 106 process



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FHWA & ODOT must determine:

• Whether the action meets the definition of undertaking in the NHPA

• And, if so, whether it is a type of activity that has potential to affect historic properties


Establish Undertaking


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Definition:

“project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; those requiring a Federal permit, license or approval; and those subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency.” (36 CFR Section 800.16(y))


Undertaking


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• Remember that the definition of an undertaking is

necessarily broad.

• It is NOT determined solely on funding.

• A 100% State funded project that requires a federal permit (such as a waterway permit from the Army Corps of Engineers), or requires a federal agency approval or license would still be subject to Section 106 review and coordination under 36 CFR Part 800.

Undertaking (cont.)



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• If there is no undertaking or if the undertaking has minimal potential to cause effects to historic properties under Appendix A or B of the Section 106 PA, the Section 106 process is complete.

• Document this finding to respond to questions or inquiries by public or other parties.

• Include discussion in NEPA document.

• If undertaking could cause effects, go to next step.


Conclusion of Step I


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Step I: Initiate Section 106

ProcessEstablish undertaking

Identify appropriate SHPO/THPO

Plan to involve the public

Identify other consulting parties

No Undertaking/Minimal Potential To Cause Effects

Public involvement

Undertaking Might Affect Historic Properties

Step I: Initiate Section 106 Process



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Determine scope of efforts

Identify historic properties

Evaluate historic significance (National Register eligibility status)



Step II: Identify Historic Properties


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36 CFR Section 800.4(b)(1):

“The agency official shall make a reasonable and good

faith effort to carry out appropriate identification

efforts…within the area of potential effects”

Flexibility in Identification Effort



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Definition from 36 CFR Section 800.16(d):

“geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist.”

• Informally based on the size, scope, context, and visual intrusiveness of a project.

• In ODOT’s process, “APE” basically equates with “Study Area.”

• Determined in consultation with SHPO

• May change over the life of a project.

Area of Potential Effects



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FHWA & ODOT efforts to identify Historic Properties must consider:

Magnitude and nature of undertaking

Degree of Federal involvement

Past studies

Nature and extent of potential effects

Likely nature and location of historic properties

Applicable standards and guidelines

Confidentiality concerns

Flexibility in Identification Effort



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Is the property already listed in the National Register of Historic Places?

If not, apply National Register criteria to determine eligibility.

Have to have consensus determination of eligibility.

Properties have to have integrity.


Evaluation of Significance


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Listing of resources identified as worthy of recognition and preservation.

Nomination process distinct from Section 106 evaluation decision and process

Threshold tests: Age and Integrity

Four Eligibility CriteriaA: events in history

B: significant person or group of people C: architecture, engineering, or artistic qualities D: ability to yield important information (usually

associated with archaeological sites)


National Register of Historic Places


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Authenticity of a property’s historic identity, based on surviving physical characteristics.

It is a composite of seven qualities: * Location * Design * Setting * Materials * Workmanship * Feeling * Association


NRHP Definition of Integrity


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Integrity enables a property to illustrate significant aspects of its past.

Must resemble its historic appearance, retaining physical materials, design features & aspects of construction.

For archaeological resources, its based on the degree to which remaining evidence can provide important information.

All seven do not need to be present for eligibility as long as the overall sense of time & place is evident.

A resource can be important to a community, but unless it has a certain amount of integrity, it CANNOT be considered eligible for the NRHP.


NRHP Integrity (cont.)


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NR boundaries are needed to determine EFFECT in Section 106, not ELIGIBILITY!

We may never need to have a boundary determination for an eligible property for the purposes of Section 106.

However, a boundary determination may be needed to comply with Section 4(f) of the USDOT Act

Boundaries are determined based on what makes the property eligible under the NRHP criteria.


NRHP Property Boundaries


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After historic properties have been identified:

ODOT & FHWA apply definition of effect: “alteration to the characteristics of a historic property qualifying it for inclusion in or eligibility for the National Register” [36 CFR Section 800.16(i)]

At the conclusion of Step II, ODOT makes a formal finding of either “no historic properties affected” or “historic properties may be affected”

Conclusion of Step II



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Appropriate when: ODOT and FHWA have

determined that no historic properties are present in the APE; or

Historic properties are present but the undertaking will have no effect

“No Historic Properties Affected” Finding



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ODOT provides documentation to the SHPO, notifies consulting parties, and makes documentation available to the public.

SHPO may disagree with ODOT and FWHA, triggering next step

Per Section 106 PA, if no objection within 15 days, Section 106 compliance is complete


Review of “No Historic Properties Affected” Finding


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Step II: Identify Historic

Properties

Determine scope of efforts

Identify historic properties

Evaluate historic significance

Historic Properties May Be Affected

No Historic Properties Affected

Public involvement


Step II: Identify Historic Properties


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If historic properties are affected:

FHWA and ODOT notify consulting parties and invite their views

ODOT applies criteria of adverse effect and notifies SHPO

ODOT and FHWA must consider views provided by other consulting parties & public


Step III: Assess Adverse Effects



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Adverse effect: when undertaking will cause the integrity of a historic property to be diminished

ODOT and FHWA must consider: both direct and indirect effects reasonably foreseeable effects: cumulative,

later in time, or at a distance all qualifying characteristics of a property

Criteria of Adverse Effect



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physical destruction or damage alteration not consistent with the Secretary of the

Interior’s Standards relocation change of use or change to physical features of a

property’s setting visual, atmospheric, or audible intrusions neglect resulting in deterioration

Examples of Adverse Effect



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ODOT can propose “No Adverse Effect” finding and notify consulting parties. If no objection by SHPO, Section 106 is complete.

SHPO can respond with a request for changes to the undertaking in order to avoid an adverse effect. If ODOT and FHWA agree, Section 106 is complete.

If SHPO or another party disagrees, FHWA either resolves or asks the Council to review.

ODOT and FHWA must keep record of finding.

Conclusion of Step III



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Step III: Assess

Adverse Effects

Apply criteria of adverse effect

Historic Properties Are Adversely Affected

No Historic Properties Adversely Affected

Public involvement

Step III: Assess Adverse Effects



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ODOT can propose an “adverse effect” finding to SHPO

ODOT and FHWA continue consultation with SHPO and other consulting parties to explore alternatives that may avoid, minimize, and/or mitigate adverse effects



Step IV: Resolve adverse effects


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For all adverse effect findings, the Federal agency must notify the Council by providing this documentation for consultation [36 CFR 800.11(e)] given to consulting parties, which includes description of:

undertaking and APE identification steps and affected historic

properties project effects and why the criteria of adverse

effect are applicable views of consulting parties and public

Agency Notification to Council



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Council has 15 days to respond when notified of project by the Federal agency or requested to enter consultation by another party

When entering process, Council now must: document that criteria for Council involvement are

met advise the Federal agency or agency with delegated

authority, such as ODOT


Council Decision to Participate in Resolution of Adverse Effects


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FHWA and ODOT must seek views of the public

To resolve adverse effects, FHWA’s and ODOT’s public involvement efforts have to take into account: the magnitude of undertaking the nature of its effects upon historic properties the likely effects on historic properties public participation efforts at earlier steps confidentiality concerns

Public Participation During Resolution of Adverse Effects



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If FHWA, ODOT, SHPO and Council agree on how adverse effects will be resolved, they execute a Memorandum of Agreement.

The MOA defines the steps to mitigate the adverse effect.

When the Council does not participate, the Federal agency must submit a copy of executed MOA to the Council

Federal agency must ensure the undertaking is carried out in accordance with the MOA.


Conclusion of Step IV


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Signatories: Required signatories: Agency (FHWA), SHPO/THPO, and

ACHP if they have joined in consultation. Must sign and their approval is needed to amend or

terminate

Invited signatories: ODOT and local agency with legal involvement, such as a City or County Not required to execute MOA, but if they do sign, their

approval is needed to amend or terminate

Concurring parties: additional signatories (could be a local historical society, community organization, private citizen, etc.) Do not have the same rights as signatories—approval is

not needed to execute, amend, or terminate.

Memorandum of Agreement



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To specify the mitigation or alternatives agreed to by the consulting parties.

To identify who is responsible for carrying out the specified measures.

To render Council comment (if necessary). To serve as acknowledgement by the signatories that, in

their collective view, the Federal agency has taken into account the effects of the undertaking on historic properties.

Purposes of the MOA



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• If agency and SHPO cannot agree, Council must be invited to participate

• Council may consult or choose to comment

• If further consultation not productive, Federal agency, SHPO, or Council can terminate

• Federal agency MAY ultimately decide to proceed without SHPO and/or Council agreement (this is not common.)



Failure to Resolve Adverse Effects


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Failure To Agree

Memorandum of Agreement

Council Comment

Public involvement

Step IV: Resolve Adverse Effects

Continue consultation


Step IV: Resolve Adverse Effects


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• Most projects do not involve historic properties, however, the simplest projects can.

• The Federal agency is ultimately responsible for all decisions

• Everything is documented.

• Notify the public and seek comment when required.

• Properties determined eligible for the NRHP receive the same level of consideration as those already listed in the NRHP.


Principles To Remember


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• Most cases can be resolved at the state level between FHWA/ODOT and SHPO.

• The process has no predetermined outcome.

• The process is based on good faith effort.

• Section 106 of the NHPA does NOT require preservation of historic and/or archaeological resources, only that the projects effects on them be considered.

More Principles To Remember



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Advisory Council’s web site: www.achp.gov

• New guidance is published by Council periodically.

• Read the regulations; print additional guidance from the Council’s website.

AASHTO Practitioner’s Handbook:“Consulting Under Section 106 of the National Historic Preservation Act” (February 2007)

http://environment.transportation.org/pdf/PG06.pdf

CEQ NEPA Citizen’s Guide:http://ceq.eh.doe.gov/nepa/Citizens_Guide_Dec07.pdf

More information


http://www.achp.gov/

http://environment.transportation.org/pdf/PG06.pdf

http://ceq.eh.doe.gov/nepa/Citizens_Guide_Dec07.pdf


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ODOT Section 106 Toolkit: http://www.dot.state.oh.us/Divisions/Planning/Environment/training/Pages/Section106Toolkit.aspx

SHPO: www.ohiohistory.org/resources/histpres

NRHP: www.cr.nps.gov/nr

FHWA: www.fhwa.dot.gov/histpres/index.asp

AASHTO: http://environment.transportation.org/environmental_issues/historic_cultural

• Call the Cultural Resource Section staff (contact information located on our website)

• There is information on OES’ website and in the Cultural Resources Manual regarding report requirements, agreements, publications, historic bridges, general guidance and related links.

Additional Information:


http://www.dot.state.oh.us/Divisions/Planning/Environment/training/Pages/Section106Toolkit.aspx




http://www.ohiohistory.org/resources/histpres

http://www.cr.nps.gov/nr

http://www.fhwa.dot.gov/histpres/index.asp

http://environment.transportation.org/environmental_issues/historic_cultural

presented by: the ohio department of transportation 1 36 cfr part 800 protection of historic...

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