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THE FOUR STEP SECTION 106 PROCESS: STEP THREE TENNESSEE STATE HISTORIC PRESERVATION OFFICE REVIEW AND COMPLIANCE SECTION All reproduction rights reserved.

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Presentation on theme: "THE FOUR STEP SECTION 106 PROCESS: STEP THREE TENNESSEE STATE HISTORIC PRESERVATION OFFICE REVIEW AND COMPLIANCE SECTION All reproduction rights reserved."— Presentation transcript:

1 THE FOUR STEP SECTION 106 PROCESS: STEP THREE TENNESSEE STATE HISTORIC PRESERVATION OFFICE REVIEW AND COMPLIANCE SECTION All reproduction rights reserved

2 What follows is a presentation text in PowerPoint format. It is being presented that way because the staff of the Tennessee State Historic Preservation Offices Review and Compliance Section believes you will be able to absorb more of the message of the presentation in this format than if it were presented as a printed text. As such, this presentation lacks much of the punch of a normal PowerPoint presentation. But since we are not there to narrate all the needed information for you, this is the best way to transmit the information you need to complete Section 106 review swiftly and successfully.

3 INTRODUCTION

4 The Federal Agency Official should apply the Criteria of Adverse Effect (800.5(a)(1) and 800.5(a)(2)) in seeking to decide the type and nature of project effect upon identified Historic Properties located within the undertakings APE. The Federal Agency Official should apply the Criteria of Adverse Effect (800.5(a)(1) and 800.5(a)(2)) in seeking to decide the type and nature of project effect upon identified Historic Properties located within the undertakings APE.

5 Step Three Assess Project Effects Upon Historic Properties

6 Questions You Should Answer Before Beginning Consultation:

7 What is the result of applying the Criteria of Adverse Effect to the project under review? What is the result of applying the Criteria of Adverse Effect to the project under review? Which specific Criteria of Adverse Effect apply to this project? Which specific Criteria of Adverse Effect apply to this project? Step Three: Assess Project Effects:

8 IS THERE A PUBLIC INTEREST IMPERATIVE IN IMPLEMENTING THIS SPECIFIC UNDERTAKING?

9 Public Interest Imperative Funded Federal undertakings located on Federal land or associated with Federal buildings are, by definition, in the public interest, because they are the product of specific Federal statute.

10 However…

11 Public Interest Imperative Undertakings that are associated with specific Federal grants or loans to non- Federal applicants, or Federal licenses, permits, or approvals are not necessarily in the public interest, because they are not specifically the product of Federal statute.

12 Public Interest Imperative Furthermore, activities for which non- Federal applicants must duly seek a Federal license, permit, or approval are clearly not necessarily in the public interest. Otherwise, no Federal license, permit, or approval for such activities would be necessary in the first place.

13 Public Interest Imperative That means for these undertakings, when faced with an adverse effect determination, Federal agencies and applicants must devote extra time to exploring alternatives that avoid or minimize adverse effects in consultation with other participants.

14 Public Interest Imperative Because, for these undertakings, the Section 106 General Welfare mission trumps the mission of the Federal agency or applicant. It is not necessarily in the public interest for a specific applicant for Federal assistance to receive that specific assistance.

15 Public Interest Imperative Therefore, it is the responsibility of the agency or applicant to demonstrate a genuine and defendable purpose and need for that undertaking. Doing so will increase agency and applicant positive influence over the other participants in Section 106 review.

16 How Do You… …assess the effects of your undertaking upon Historic Properties ?

17 Undertakings may have both direct and indirect effects. That is, effects may be both cumulative over time as well as a direct and immediate consequence of the federal undertaking. Under the 36 CFR 800 regulation, federal agencies must apply the if but for rule as they determine a particular undertakings ultimate and foreseeable Area of Potential Effects.

18 For example, an agency receives an application for a permit to construct a marina on the edge of a watercourse in conjunction with the construction of an adjacent condominium development. The agency is obliged, in establishing the undertakings foreseeable APE, to determine whether the marina is essential to the condominium development. A standard operating procedure for making such a determination involves reviewing the condominium development site plan to determine whether the marina is among its programmatic elements. If the agency determines after a good faith analysis that the condominium development is directly dependent upon the construction of the marina, then the APE of the undertaking should include both the marina and the condominium development. The marina has the potential directly to affect cultural resources along the watercourse and indirectly to affect cultural resources disturbed during the construction of the condominium development. If the condominium development does not directly depend upon the marina, the APE includes only the marina footprint.

19 Here is another example. An agency receives a request for funding of an underground water line stretching from the community water treatment plant to a proposed industrial park. In defining the project APE, the agency shall test the proposed industrial park against the if but for rule. If the industrial park is dependent upon the water line, then the projects APE includes both the route of the water line and the site of the industrial park. If the industrial park could function without the water line (most unlikely), then the APE would only include the route of the line.

20 The if but for rule is a direct concomitant of the concept of cumulative and foreseeable project effect. Since the 36 CFR 800 regulation states very clearly that any federal undertaking may have both direct and indirect (cumulative and foreseeable) effects, then federal agencies must apply the if but for rule as a matter of course. Agencies that do not take both direct and indirect effects into account when delineating their APEs risk charges of noncompliance and subsequent litigation.

21 SECTION 106 CHECKLIST

22 Questions: Assess the possible direct, and indirect, and cumulative effects of the undertaking upon identified historic properties and any alternatives you may have explored, thus defining the historic preservation issues and providing a clear basis for choice among options by the consulting parties and the public. Yes_________ No_________

23 40 CFR Part lists various kinds of Effects that include: (a) Direct effects, which are caused by the action and occur at the same time and place, and, Questions:

24 (b) Indirect effects, which are caused by the undertaking and are later in time or farther removed in distance, but are still reasonably foreseeable. Questions:

25 Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems. Questions:

26 40 CFR Part defines "Cumulative impact" as the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions. Questions:

27 Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. Questions:

28 HOW DO YOU ASSESS THE DIRECT AND INDIRECT EFFECTS OF THE UNDERTAKING UPON HISTORIC PROPERTIES?

29 APPLY THE CRITERIA OF ADVERSE EFFECT

30 Criteria of Adverse Effect: Apply the Criteria Of Adverse Effect: You should apply the Criteria of Adverse Effect (800.5(a)(1) and 800.5(a)(2)) in seeking to decide the type and nature of project effect upon Historic Properties.

31 (a) Apply criteria of adverse effect. In consultation with the SHPO/THPO and any Indian tribe that attaches religious and cultural significance to identified historic properties, the agency official shall apply the criteria of adverse effect to historic properties within the area of potential effects. The agency official shall consider any views concerning such effects which have been provided by consulting parties and the public (a) Apply criteria of adverse effect. In consultation with the SHPO/THPO and any Indian tribe that attaches religious and cultural significance to identified historic properties, the agency official shall apply the criteria of adverse effect to historic properties within the area of potential effects. The agency official shall consider any views concerning such effects which have been provided by consulting parties and the public Criteria of Adverse Effect:

32 The Criteria of Adverse Effect found at 36 CFR Part contains a list of possible adverse effects to historic properties. While this list is not comprehensive, agency officials, consulting parties, and the public do well to use it to help them make informed findings about the possible adverse effects to historic properties of federal projects. Criteria of Adverse Effect:

33 Adverse Effects include, BUT ARE NOT LIMITED to the following: Criteria of Adverse Effect:

34 Any physical destruction of or damage to an Historic Property which would diminish its integrity for listing in the National Register of Historic Places currently or in the foreseeable future (the Tennessee State Historic Preservation Office will be especially mindful of effects which make a Historic Property ineligible for listing in the National Register (currently or in the foreseeable future) (this includes seismic damage) Yes_________ No_________ Criteria of Adverse Effect:

35 Any alteration to an Historic Property not in accordance with the secretary of the interiors standards for the treatment of historic properties: Yes_________ No_________ Criteria of Adverse Effect:

36 Any removal of a Historic Property from its location when location and setting have been determined to be part of the resources National Register eligibility Yes_________ No_________ Criteria of Adverse Effect:

37 Any changes to the Historic Propertys character or setting that diminish its integrity (the Tennessee State Historic Preservation Office will be especially mindful of effects which make a Historic Property ineligible for listing in the National Register currently or in the foreseeable future) Yes_________ No_________ Criteria of Adverse Effect:

38 Any introduction of out of character elements (visual, oral, etc.) into the affective vicinity of the Historic Property which diminish its integrity (again, the Tennessee State Historic Preservation Office will be especially mindful of effects which make a Historic Property ineligible for listing in the National Register currently or in the foreseeable future) Yes_________ No_________ Criteria of Adverse Effect:

39 Any neglect that causes the Historic Property to lose integrity (unless the resource has demonstrable significance wholly as a religious or cultural property and the Consulting Party making the assertion of significance deems neglect as not adverse) Yes_________ No_________ Criteria of Adverse Effect:

40 Any lease, transfer, or sale of a Historic Property out of Federal control without adequate protection in the form of a preservation covenant Yes_________ No_________ Criteria of Adverse Effect:

41 Any data recovery of any archaeological Historic Property unless determined eligible wholly under National Register Criterion D (this adverse effect may be resolved by using the Advisory Council on Historic Preservations Recommended Approaches for Consultation on Recovery of Significant Information from Archaeological Sites 64 CFR ) Yes_________ No_________ Criteria of Adverse Effect:

42 As a general rule of thumb, adverse effect occurs when the archaeological, architectural, or historical integrity of an Historic Property that qualifies it to be eligible for listing in the National Register of Historic Places will be diminished to such an extent by the undertaking that the future National Register eligibility of the Historic Property under any and all National Register Criteria is threatened by the undertaking. Federal agencies, therefore, should decide whether their undertaking would so diminish the integrity of a National Register eligible property as to threaten its future eligibility under any of the four National Register Criteria.

43 Properties listed in the National Register of Historic Places under less than all four criteria are still subject to evaluation of their eligibility under all four criteria. Remember, the National Register of Historic Places is not the complete roster for the Section 106 process. Eligibility for listing in the National Register, and not National Register listing itself is the deciding factor here.

44 WHAT ARE THE CLASSES OF FEDERAL UNDERTAKINGS MOST LIKELY TO AFFECT HISTORIC PROPERTIES ADVERSELY?

45 Federal undertakings most likely to affect historic properties adversely any proposed demolition or construction work on a know historic property, any proposed demolition or construction work on a know historic property, any new highway construction or widening, any new highway construction or widening, any project in any way involving disturbing the ground, any project in any way involving disturbing the ground, and any project involving large areas of land or long land corridors. and any project involving large areas of land or long land corridors.

46 Federal undertakings most likely to affect historic properties adversely Any federal licenses or permits for such projects also have a high potential to affect historic properties adversely. Agency officials who are thinking about such undertakings should begin exploring alternative proposals and alternative locations as soon as possible in their project planning process.

47 WHAT IS A USEFUL WAY OF ANALYSING THE SCOPE AND NATURE OF THE ADVERSE EFFECT?

48 ANALYSING THE SIGNIFICANCE OF THE ADVERSE EFFECT By using certain benchmarks found at 40 CFR , Agency Officials and applicants for Federal assistance may assess the scope, nature, and severity of the impact of their undertakings upon Historic Properties quite accurately.

49 For example, would the proposed undertaking significantly and adversely affect the unique characteristics of the geographic area bounded by the Area of Potential Effects. Such unique characteristics would include proximity to historic or cultural resources. Yes_________ No_________ ANALYSING THE SIGNIFICANCE OF THE ADVERSE EFFECT

50 Or would the proposed undertaking significantly and adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or cause loss or destruction of significant cultural, or historical resources. Yes_________ No_________ ANALYSING THE SIGNIFICANCE OF THE ADVERSE EFFECT

51 Or would the effects of the undertaking to historic properties be likely to be highly controversial. Yes_________ No_________ ANALYSING THE SIGNIFICANCE OF THE ADVERSE EFFECT

52 Or would the effects of the undertaking be likely to be highly uncertain or involve unique or as yet unknown risks to historic properties. Yes_________ No_________ ANALYSING THE SIGNIFICANCE OF THE ADVERSE EFFECT

53 Or would the effects of the undertaking be likely to establish a precedent for future actions with significant effects to historic properties or represent a decision in principle about a future undertaking that might affect historic properties. Yes_________ No_________ ANALYSING THE SIGNIFICANCE OF THE ADVERSE EFFECT

54 Or would the effects of the undertaking be likely to violate Federal, State, or local law or requirements imposed for the protection of historic properties. Yes_________ No_________ ANALYSING THE SIGNIFICANCE OF THE ADVERSE EFFECT

55 Firewall: If the answer to any of the preceding questions is Yes, your undertaking will most likely have an adverse effect upon an historic property. Proceed to Step Four and resolve the adverse effect.

56 If not, and if you have determined in consultation with the Tennessee SHPO and other affected consulting parties that the undertaking will not adversely affect Historic Properties, you are near completion of Step Three (800.4(d)(2) and 800.5(a))… Firewall:

57 No Adverse Effect Finding Firewall:

58 WHAT IS THE AGENCY OFFICIALS EFFECT FINDING?

59 After the Agency Official has subjected the undertaking to these tests, (s)he will then submit a finding either of no adverse effect or conditional no adverse effect or adverse effect plus supporting documentation to the SHPO and all other consulting parties for a 30- day review. Reality Check:

60 How will you assess project effects to historic properties? 1.Consult the Criteria of Adverse Effect. 2.Evaluate the project against each criterion. 3.Seek the views of Consulting Parties 4.Seek concurrence of the Tenessee SHPO..

61 THREE POSSIBILITIES

62 Summary: The outcome of this effects assessment can result in three findings: 1) no adverse effect, 2) conditional no adverse effect, and 3) adverse effect.

63 (b) Finding of no adverse effect. The agency official, in consultation with the Tennessee SHPO, may propose a finding of no adverse effect when the undertaking's effects do not meet the criteria of paragraph (a)(1) of this section or the undertaking is modified or conditions are imposed, such as the subsequent review of plans for rehabilitation by the Tennessee SHPO to ensure consistency with the Secretary's standards for the treatment of historic properties (36 CFR part 68) and applicable guidelines, to avoid adverse effects No Adverse Effect

64 (c) Consulting party review. If the agency official proposes a finding of no adverse effect, the agency official shall notify all consulting parties of the finding and provide them with the documentation specified in Sec (e). The Tennessee SHPO shall have 30 days from receipt to review the finding. No Adverse Effect

65 (1) Agreement with finding. Unless the ACHP is reviewing the finding pursuant to Sec (c)(3), the agency official may proceed if the Tennessee SHPO agrees with the finding. The agency official shall carry out the undertaking in accordance with Sec (d)(1). Failure of the Tennessee SHPO to respond within 30 days from receipt of the finding shall be considered agreement of the SHPO with the finding No Adverse Effect

66 Firewall: No historic properties are adversely affected (800.5(d)(1)) Agencies must retain records of their findings of no adverse effect and make them available to the public. The public should be given access to the information when they so request, subject to Freedom of Information Act (FOIA) and other statutory limits on disclosure, including the confidentiality provisions in Section 304 of the NHPA. * *Advisory Council on Historic Preservation Working with Section 106: Users Guide No Adverse Effect

67 Belaboring the Obvious To make a no adverse effect determination, you must have identified at least one Historic Property within the APE and found that the project would not affect it adversely. If instead, no Historic Properties were found, then the appropriate finding is no historic properties affected. No Adverse Effect Firewall:

68 Documentation Standards: Sec Documentation Standards: Finding of no adverse effect

69 (1) A description of the undertaking, specifying the Federal involvement, and its area of potential effects, including photographs, maps, and drawings, as necessary; Documentation Standards:

70 (2) A description of the steps taken to identify historic properties; Documentation Standards:

71 (3) A description of the affected historic properties, including information on the characteristics that qualify them for the National Register; Documentation Standards:

72 (4) A description of the undertaking's effects on historic properties; Documentation Standards:

73 (5) An explanation of why the criteria of adverse effect were found applicable or inapplicable, including any conditions or future actions to avoid, minimize or mitigate adverse effects; and Documentation Standards:

74 (6) Copies or summaries of any views provided by consulting parties and the public. Documentation Standards:

75 Be sure to prepare this documentation and submit it to all participants in the Section 106 review process for review and comment. Documentation Standards:

76 CONFIDENTIALITYCONCERNS

77 Authority to withhold information from the public: Section 304 of the NHPA Confidentiality Concerns:

78 WHEN MAY YOU USE PHASED COMPLIANCE?

79 Phased Compliance: A Federal agency has the option under the 36 CFR 800 regulation to assess effects to Historic Properties within an Area of Potential Effects using a phased approach similar to that used in making National Register eligibility determinations.

80 Questions: Did you notify all Consulting Parties of your finding of effects and invite their views on the matter Yes_________ No_________

81 Did you make a good faith effort to obtain the written comments of all Consulting Parties Yes_________ No_________ Questions:

82 Did you apply the Criteria of Adverse Effect again in direct consultation with the State Historic Preservation Office and any tribe or other Consulting Party that attaches cultural or religious significance to the identified and designated Historic Property being reviewed Yes_________ No_________ Questions:

83 Did you take into account the formal findings of all Consulting Parties Yes_________ No_________ Questions:

84 Did you take into account the views of the public Yes_________ No_________ Questions:

85 Reality Check: Do not proceed until all of the answers to the preceding questions are Yes,

86 Again, by way of emphasis, the Regulation makes it clear that adverse effect may be both direct and indirect (secondary, cumulative and/or reasonably foreseeable) (800.5(a)(1)). Federal agencies should, therefore, project their effect determinations into the foreseeable future in a good faith attempt to assess the possibility for indirect or cumulative effect. Although such an exercise may at times prove difficult, the Regulation allows the Federal agency no alternative.

87 This type of primary and secondary effect analysis is standard operating procedure for National Environmental Policy Act review. Federal agencies that use the National Environmental Policy Act process regularly should be comfortable employing it in Section 106 reviews.

88 Again, by way of emphasis, just as in the case of defining the project Area of Potential Effects, Federal agencies should assess adverse effect in light of any and all characteristics of a property that may qualify it as National Register eligible (800.5(a)(1)). This means that Federal agencies should use all four National Register Criteria to evaluate significance. Historic Properties may be National Register eligible under more than one Criterion. In such cases, undertakings that may not affect a propertys integrity under one Criterion might well adversely affect the same property under another Criterion.

89 For example, a Federal agency may determine a Nineteenth Century ferry operator's house along a stream bank eligible under Criterion C for architecture. At the same time, the Federal agency may determine an adjacent and associated historic archaeological site such as a ferry crossing ruin situated along the stream bank eligible under Criterion D for research significance. Placing riprap along the stream bank to stabilize it will not affect the architectural characteristics of the house (though it may affect its setting) but may well affect the archaeological ruin adversely.

90 Conditional No Adverse Effect: If you have concurrence from the State Historic Preservation Officer and other Consulting Parties that your undertaking will not adversely affect Historic Properties, you have completed Section 106 review UNLESS the agreed-to No Adverse Effect determination is conditional.

91 Conditional No Adverse Effect: Conditional No Adverse Effect Finding

92 (b) Finding of no adverse effect. The agency official, in consultation with the Tennessee SHPO, may propose a finding of no adverse effect when the undertaking's effects do not meet the criteria of paragraph (a)(1) of this section or the undertaking is modified or conditions are imposed, such as the subsequent review of plans for rehabilitation by the Tennessee SHPO to ensure consistency with the Secretary's standards for the treatment of historic properties (36 CFR part 68) and applicable guidelines, to avoid adverse effects Conditional No Adverse Effect:

93 A conditional no adverse effect determination means that, after due consultation, you have placed mutually agreed upon (Agency Official & Tennessee SHPO) conditions or modifications upon the undertaking that will make the undertaking not adversely impactful. Conditional No Adverse Effect:

94 WHAT ARE THE CONDITIONS THAT CREATE A CONDITIONAL NO ADVERSE EFFECT FINDING?

95 Questions: Mutually-agreed-to Historic Preservation covenants attached to transfer documents/deeds Yes_________ No_________

96 HISTORIC PRESERVATION COVENANT The grantee, his heirs, successors, and assigns, will undertake any work on this property herein described in accordance with the recommended approaches in The Secretary of the Interior's "Standards for Treatment of Historic Properties" (National Park Service 1983); (Standards) and will submit final plans and specifications for such work to the Tennessee Historical Commission for review and certification that the proposed work meets the Standards before beginning any work.

97 Mutually-agreed-to conditions which ensure avoidance or minimization of adverse effect through the re-design of the undertaking in accord with the secretary of the interiors standards Yes_________ No_________ Questions:

98 WHAT ARE THE SECRETARY OF THE INTERIORS STANDARDS FOR REHABILITATION?

99 Standards for Rehabilitation A property will be used as it was historically or be given a new use that requires minimal change to its distinctive materials, features, spaces, and spatial relationships

100 The historic character of a property will be retained and preserved. The removal of distinctive materials or alteration of features, spaces, and spatial relationships that characterize a property will be avoided. Standards for Rehabilitation

101 Each property will be recognized as a physical record of its time, place, and use. Changes that create a false sense of historical development, such as adding conjectural features or elements from other historic properties, will not be undertaken. Standards for Rehabilitation

102 Changes to a property that have acquired historic significance in their own right will be retained and preserved. Standards for Rehabilitation

103 Distinctive materials, features, finishes, and construction techniques or examples of craftsmanship that characterize a property will be preserved. Standards for Rehabilitation

104 Deteriorated historic features will be repaired rather than replaced. Where the severity of deterioration requires replacement of a distinctive feature, the new feature will match the old in design, color, texture, and, where possible, materials. Replacement of missing features will be substantiated by documentary and physical evidence. Standards for Rehabilitation

105 Chemical or physical treatments, if appropriate, will be undertaken using the gentlest means possible. Treatments that cause damage to historic materials will not be used. Standards for Rehabilitation

106 Archeological resources will be protected and preserved in place. If such resources must be disturbed, mitigation measures will be undertaken. Standards for Rehabilitation

107 New additions, exterior alterations, or related new construction will not destroy historic materials, features, and spatial relationships that characterize the property. The new work will be differentiated from the old and will be compatible with the historic materials, features, size, scale and proportion, and massing to protect the integrity of the property and its environment. Standards for Rehabilitation

108 New additions and adjacent or related new construction will be undertaken in such a manner that, if removed in the future, the essential form and integrity of the historic property and its environment would be unimpaired. Standards for Rehabilitation

109 Questions: Mutually-agreed-to conditions which ensure avoidance or minimization of adverse effect through the placement of natural or artificial screening between the project and the historic property. Yes_________ No_________

110 Consultation: You must offer all Consulting Parties due notification of your conditional or non-conditional no adverse effect finding and request their comments.

111 WHAT HAPPENS IF THE AGENCY OR APPLICANT FAILS TO CARRY OUT THE AGREED TO CONDITIONS OR MODIFICATIONS?

112 Firewall: No historic properties are adversely affected with conditions(800.5(d)(1)) Failure of the agency to carry out the undertaking in accordance with the finding requires the Agency Official to reopen the Section 106 process and determine whether the altered course of action constitutes an adverse effect.* *Advisory council on Historic Preservation Working With Section 106: Users Guide No Adverse Effect With Conditions (FAILURE TO CARRY OUT)

113 Or the Agency Official may find…

114 Adverse Effect Finding

115 (2) Adverse effect. If an adverse effect is found, the agency official shall consult further to resolve the adverse effect pursuant to Sec (2) Adverse effect. If an adverse effect is found, the agency official shall consult further to resolve the adverse effect pursuant to Sec

116 LIMITED DELEGATION A federal agency that funds, licenses, permits, or approves an undertaking may take the full responsibility for initiating Section 106 review upon itself, or, it may, as it chooses, and within certain strict statutory and regulatory limitations, assign a portion of this initial consultation responsibility to a non-federal applicant for its funds, licenses, permits, or approvals. After due notice from the agency of its intention to delegate, the SHPO shall work directly with such applicants UNTIL AND UNLESS A DETERMINATION OF EFFECT BEYOND THAT OF NO HISTORIC PROPERTIES ADVERSELY AFFECTED IS RENDERED.

117 In these latter cases, where adverse effect upon historic properties is determined, the Tennessee SHPO will request the responsible federal agency official to enter consultation. Then it becomes the non-transferable responsibility of the federal agency official to complete the Section 106 process itself. This is in keeping with the Section 106 requirement that the agency head afford the ACHP a reasonable opportunity to comment upon its determination of project effect upon cultural resources. LIMITED DELEGATION

118 SUPPOSE THERE IS DISAGREEMENT WITH THE FINDING?

119 DISAGREEMENT WITH FINDING If within the 30 day review period the Tennessee SHPO or any consulting party notifies the agency official in writing that it disagrees with the finding and specifies the reasons for the disagreement in the notification, the agency official shall either consult with the party to resolve the disagreement, or request the ACHP to review the finding.

120 The ACHP shall review the finding and provide the agency official and, if the ACHP determines the issue warrants it, the head of the agency with its opinion as to whether the adverse effect criteria have been correctly applied. An ACHP decision to provide its opinion to the head of an agency shall be guided by the criteria in appendix A to this part. The ACHP will provide its opinion within 15 days of receiving the documented finding from the agency official. The ACHP at its discretion may extend that time period for 15 days, in which case it shall notify the agency of such extension prior to the end of the initial 15 day period. If the ACHP does not respond within the applicable time period, the agency official's responsibilities under Section 106 are fulfilled. DISAGREEMENT WITH FINDING

121 If the final decision of the agency is to affirm the initial finding of no adverse effect, once the summary of the decision has been sent to the ACHP, the Tennessee SHPO, and the consulting parties, the agency official's responsibilities under Section 106 are fulfilled. DISAGREEMENT WITH FINDING

122 36 CFR SPECIFIED LEVELS OF SECTION 106 DOCUMENTATION FOR INTERMEDIATE CONSULTATION

123 FINDING OF NO ADVERSE EFFECT OR ADVERSE EFFECT. DOCUMENTATION SHALL INCLUDE: A description of the undertaking, specifying the Federal involvement, and its area of potential effects, including photographs, maps, and drawings, as necessary; A description of the steps taken to identify historic properties; A description of the affected historic properties, including information on the characteristics that qualify them for the National Register; A description of the undertaking's effects on historic properties; An explanation of why the criteria of adverse effect were found applicable or inapplicable, including any conditions or future actions to avoid, minimize or mitigate adverse effects; and Copies or summaries of any views provided by consulting parties and the public.

124 Approximately two-thirds of the remaining cases end at step three – No Adverse Effect to Historic Properties. The results of successful Section 106 consultation…

125 You are nearing completion of Step Three.

126 PRACTICE SCENARIO

127 The Huey County Highway Department plans to use funds from the Federal Emergency Management Agency to repair the 1945 concrete, wood, and steel bridge over the Frog Suck River. The bridge was severely damaged by the Shonuff Flood (Flood# 714) that crested the river last May. The County plans to replace broken, bent, or washed away decking, rails, and I-beam underpinnings and do extensive re-grading and re-paving of the approaches on both sides of the river. The County has hired the engineering firm of Dewey, Swim n Lake (DS&W) to facilitate completion of environmental review, including Section 106 review. DS&W has contacted the Grace State Historic Preservation Office to begin Section 106 consultation, and has submitted preliminary documentation to the Mudpuppy Tribe of Indians as well.

128 The Cultural Resources Survey Report commissioned by DS&W identified the bridge as being National Register eligible. Additionally, the survey identified an intact pre-historic archaeological site worthy of further testing located within one of the bridge approaches. The County consulted with the Grace State Historic Preservation Office and other consulting parties. This consultation resulted in a consensus determination that the bridge was eligible and the archaeological site was not.

129 What is the result of applying the Criteria of Adverse Effect to the project under review? Which specific Criteria of Adverse Effect apply to this project?

130 ANSWERS

131 Demolition of the bridge constitutes an adverse effect. Any physical destruction or damage of a Historic Property which would diminish its integrity for listing in the National Register of Historic Places currently or in the foreseeable future (the State Historic Preservation Office will be especially mindful of effects which make a Historic Property ineligible for listing in the National Register (currently or in the foreseeable future) (this includes seismic damage) Any physical destruction or damage of a Historic Property which would diminish its integrity for listing in the National Register of Historic Places currently or in the foreseeable future (the State Historic Preservation Office will be especially mindful of effects which make a Historic Property ineligible for listing in the National Register (currently or in the foreseeable future) (this includes seismic damage)

132 End Section 106 Review here or go on to the next step if your undertaking will affect an Historic Property adversely?

133 END OF STEP THREE

134


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