1. The Section 106 Review Process: Introduction and Overview
Charles S. Wallis, Jr.
State Historic Preservation Office
(a division of the Oklahoma Historical Society)
Historical Archeologist &
Section 106 Coordinator

2. National Historic Preservation Act
1)Established Federal policy to:
Foster productive harmony between modern society and historic resources
Provide preservation leadership
Administer historic resources in spirit of stewardship
Assist preservation efforts of State and local government, tribes and private sector
Established Federal policy to
Foster productive harmony between modern society and historic resources
Provide preservation leadership
Administer historic resources in spirit of stewardship
Assist preservation efforts of State and local government, tribes and private sector

3. NHPA cont.
2) Authorized the National Register of Historic Places (Section 101)
Administered by the Keeper of the National Register
Office based out of Washington DC
3) Established the Advisory Council on Historic Preservation (Section 201)
Based out of Washington DC

4. Intent of the NHPA
“The historical and cultural foundation of the Nation should be preserved as a living part of our community life and development in order to give a sense of orientation to the American people.” [16 U.S.C. 470b(2)]

5. Intent cont.
Sought to ensure that impacts of growth and development are considered in the planning and execution of Federal projects and programs
Reflected the perception throughout the country that through modern development the people were losing historic properties that:
were treasured
defined the character of our communities and
expressed our cultural roots.

6. National Historic Preservation Act of 1966, as amended
more involvement with Tribes
more responsibility for SHPOs to work directly with agencies
ACHP can initiate PAs with federal agencies without waiting for agency to act on their own initiative

7. Section 106 implemented by NHPA and the Advisory Council on Historic Preservation's guidelines
Definition of “historic”: A property listed on, or eligible for listing in the National Register of Historic Places
versus historic in the context of Historic Period (e.g. Archeological Site)
Tern applies to both prehistoric and historic period sites and properties

8. Section 106
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 such 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. [16 U.S.C. 470f]

9. Advisory Council on Historic Preservation
Independent Federal agency created by NHPA
Advises President and Congress on historic preservation matters
Oversees Section 106 process
Reviews Federal agency historic preservation programs and policies
Provides & encourages education & training
Encourages public interest an participation in preservation

10. Council Role in Section 106 Review
Council participates in review
To resolve disputes
When necessary, to ensure purposes of Section 106 and NHPA are met
Short of formal participation may
Provide advice or guidance upon request
Provide an advisory opinion on agency’s compliance

11. Criteria for Council Involvement in Project Review
Council is likely to enter the process if there are:
Substantial impacts on important properties
Important questions of policy or interpretation
Procedural problems
Issues of concern to Indian tribes or native Hawaiian organizations

12. Council Members (n=23)
Four members of the general public* (including the Chairman)
Four historic preservation experts*
One member of an Indian tribe or Native Hawaiian organization*
Secretary of the Interior*
Secretary of Agriculture*
Architect of the Capitol*
Seven Federal agency heads*
One governor* and one mayor*
President, National Conference of SHPOs
Chairman, National Trust for Historic Preservation
*appointed by the President

13. The Council’s Regulations (36 CFR Part 800)
Most recent edition effective Aug. 5, 2004
Establishes the process for complying with Section 106
Grounded in consultation among stakeholders to resolve conflicts
Ultimate enforcement through citizen litigation

14. Definition of Undertaking
Project, activity, or program under direct or indirect jurisdiction of a Federal agency
Includes activities that
Are carried out by or on behalf of the agency
Receive Federal funds
Require a Federal permit, license or approval

15. Establish Undertaking
Agency must determine
Whether its action meets the definition of undertaking
If so, whether it is a a type of activity with the potential to affect historic properties
If no undertaking or potential to cause effects, no further action required

16. Considerations
As agencies plan projects, they must consider whether or not the projects will affect archeological and historic properties which are listed on or eligible for the National Register of Historic Places. These properties can include buildings, structures, sites, districts, objects, and landscapes.

17. Federal Agency Responsibilities Under NHPA
STEWARDSHIP: Section 110
Requires creation of comprehensive Federal agency historic preservation programs
Mandates consideration of historic properties and affirmative stewardship of federally owned historic properties
ACCOUNTABILITY: Section 106
Creates agency accountability for effects of Federal undertakings on historic properties

18. Section 106 Review (Is a Four Step Process)
1) Initiation of the process (800.3)
Level of consultation should be appropriate to scale and nature of the undertaking
Initiate early in project planning so that broad range of alternatives can be considered
Must be completed prior to approval of expenditure of Federal funds or issuance of permit or license

19. Section 106 Review Steps cont.
1) Identification of historic properties (800.4)
These properties can include buildings, structures, sites, districts, objects, and landscapes.

20. Timing of Review Process must be initiated early in project planning
Broad range of alternatives should be available for consideration
Section 106 must be completed
Prior to approval of the expenditure of Federal funds
Issuance of any license or permit
SHPO/THPO must respond to agency findings within 30 days
If not, agency may proceed

21. Section 106 Review Steps cont.
3) Assessment of adverse effects (800.5)
No historic properties affected
No adverse effect to historic properties
Conditional no adverse effect
Adverse effect to historic properties
If scope of work meets Secretary of the Interior’s Standards for the Treatment of Historic Properties then finding will be “no adverse effect”

22. Assess Adverse Effects
Apply criteria of adverse effect
Will the undertaking:
Alter characteristics that qualify the property for the National Register of Historic Places
Diminish the property’s integrity of location, design, setting, materials, workmanship, feeling or association
Alterations may be direct or indirect
Agency should consider:
All qualifying characteristics of the property
Adverse effects may include reasonably foreseeable effects caused by the undertaking that may occur later in time, be farther removed in distance or be cumulative

23. Section 106 Review Steps cont.
4) Resolution of adverse effects
Continuing consultation
Avoiding adverse effect
Implementing mitigation measures
Memorandum of Agreement (MOA) between all consulting/interested parties to document mitigation

24. Section 106 Review Steps cont.
Resolution of adverse effects
May result in development of a Memorandum of Agreement (MOA). If this is the case notify Council of adverse effect finding.
At the same time ask if Council wishes to be involved with development of MOA in conjunction with SHPO, OAS and other parties
Public involvement all steps in the process
Failure to follow the correct process can result in citizen litigation

25. How to Avoid Adverse Effects
Pursue an alternative design
Pursue an alternative location
Limit magnitude
Rehabilitate - instead of demolish
Adopt a plan for preservation and maintenance
Move historic properties
Market properties for donation, sale or lease
Document historic property before destroying
HABS/HAER
Pursue archeological data recovery

26. Responsibility Section 106 compliance is agency responsibility
Lead agency allowed when undertaking involves multiple agencies
Agency responsibility cannot be delegated, except by statute as done for certain HUD programs
When not delegated by statute, agency must notify SHPO/THPO by letter of others authorized to initiate Section 106 on their behalf
Delegation does not extend to determinations of eligibility or adverse effects; this remains agency responsibility
May use contractors, consultants, designees and/or applicants, but must ensure work meets standards

27. Consulting Parties State Historic Preservation Office (SHPO)
Oklahoma Archeological Survey (OAS)
Tribal Historic Preservation Offices (THPOs)
Members of the Public with demonstrated legal, economic, or preservation interests
Agency decides, after consultation with SHPO/THPO, whether to recognize latter as consulting party

28. Oklahoma Archeological Survey (OAS)
Participation of OAS is through cooperative agreement with SHPO approved by NPS
OAS maintains State Site files for archeological sites as well as provides prehistoric archeologist expertise for SHPO professional staffing requirements

29. Archeological Survey & Testing: Dos and Don’ts
Testing of already listed or previously determined to be eligible (DOE) properties
Archeologists cannot submit archeological reports directly to SHPO/OAS for review. Reports should be sent under cover letter from the client (if delegated to initiate Section 106); otherwise by the responsible Federal agency
Principal investigator (PI) needs to meet Secretary of the Interior’s qualifications and standards

30. Assessing Late Period Historic Archeological Sites
Fact Sheet #12
Prehistoric versus Pre-contact/Post-contact Historic Period
Prehistoric Period – 30,000 years up to historic contact
Period AD 1500 to 1700 difficult to separate prehistoric from historic sites without radiocarbon dating in absence of historic trade goods in assemblage

31. Archeological Sites cont.
Historic Period:
beginning date for Oklahoma: La Harpe excursion into eastern Oklahoma
ending: through WWII
For late-1890s (twentieth century) and early-1900s sites, both “significance” (association & context) and “integrity” (level of preservation) must be applied to determine eligibility

32. Defining Period of Significance
National Register of Historic Places (NRHP) – at least 50 years, in most cases
Archeological Resources Protection Act of 1979 (ARPA) – at least 100 years
ARPA applies to federal properties and Native American lands
NRHP trumps ARPA for Section 106 review

33. Assigning Archeological Site Numbers
The Oklahoma Archeological Survey at the University of Oklahoma (Norman) assigns site numbers as well as maintains the State site files
Site numbers should not be assigned to:
Bridges
Barns (note: barn should be treated in context of larger farmstead if possible)
Dams
Culverts
Other minor structures and features

34. Assigning Archeological Site Numbers cont.
Bridges should be recorded using ODOT bridge forms
For buildings over 45 years in age use SHPO Historic Resource Identification forms
For small features and structures provide a brief narrative description and photographs in the main report

35. Burial Laws and Cemeteries
State statutes apply for human burials, skeletal remains and burial furniture on non-Federal holdings regardless of nationality or age
Cemeteries are not regulated but state statutes still apply
Laws can be accessed via internet through Oklahoma Supreme Court Network ( (see Fact Sheet #9)

36. Confidentiality
Agency must withhold information on historic properties if it determines that release would:
1) Cause a significant invasion of privacy
2) Risk harm to a historic property
3) Impede use of a traditional religious site

37. National Historic Landmarks
Decisions must include comment from the Secretary of the Interior, National Park Service if potential for adverse effect
Oklahoma currently has 20 NHLs

38. Anticipatory Destruction: Section 110(k) of NHPA
Agencies cannot grant assistance to applicants who try to avoid Section 106 review by adversely affecting historic properties unless:
The agency first consults with Council
Council provides opinion on granting assistance and possible mitigation
Agency must consider Council’s opinion
The agency then determines if circumstances justify granting assistance

39. Coordination with Other Cultural Resource Laws
Regulations encourage coordination with:
NEPA (National Environmental Policy Act , as amended)
AHPA (Archeological and Historic Preservation Act , as amended)
ARPA (Archeological Resources Protection Act , as amended)
AIRFA (American Indian Religious Freedom Act , as amended)
NAGPRA (Native American Graves Protection and Repatriation Act , as amended)
Compliance with one law does not equal compliance with others

40. Indian Tribes and Native Hawaiian Organizations
“Indian Tribes” are federally recognized tribes, including Alaska Native villages and corporations
For Oklahoma this involves 37 Federally recognized tribes
Indian tribes are treated as sovereign nations
Need for government-to-government consultation
Consultation required when Federal undertaking occurs on or affects historic properties on tribal lands

41. Tribal Historic Preservation Officer
THPO carries out function of the SHPO on tribal lands when tribal program is approved by Secretary of Interior as 101(d)(2) designated tribe
THPO must be consulted in lieu of SHPO for undertakings occurring on or affecting historic properties on “tribal lands”
Tribal lands meeting this definition are “those lands held in common for the good of the tribe” (i.e. Trust properties)
Past ancestral lands apply, but with dual review responsibilities of both SHPO and THPO

42. Section 101(d)(2) Tribes for Oklahoma
Listed in order of recognition
1) Caddo Nation
2) Choctaw Nation
3) Absentee Shawnee Tribe
4) Citizen Potawatomi Nation
Currently pending approval by NPS
Osage Nation
Miami Tribe
Comanche Nation
Wyandotte Nation

43. Which Tribes Should I Contact?
Any and all Federally recognized tribes that have held treaties that include land in question
Aboriginal tribes with ancestral ties to the property (e.g. prehistoric archeological sites)
To determine which tribes you should contact consult BIA’s website
Also check Oklahoma Indian Affairs Commission’s website for updated addresses and main contact person

44. Past Treaty Lands?
To address area of concern recommend purchase Historical Atlas of Oklahoma, OU Press, 4th edition (Goins and Goble 2006)
(see handout in folder for additional details)
Includes maps showing extent of past treaty lands
however, does not address or show extent of prehistoric holdings

45. Additional Consultant Tips
Consult “Tips for Requesting SHPO Comments” (see handout in folder)
FCC cell tower reviews must be submitted on FCC’s Forms 620 for new tower sites and Form 621 for collocations
DEQ and NPDES permitting for storm water discharge permits (EPA ruling)

46. Questions?
If not, then thank you for your attention and participation.