Presentation on theme: "ODOT’s Section 106 Training"— Presentation transcript:
1 ODOT’s Section 106 Training This class does not include a detailed discussion of ODOT’s Preliminary Development Process and how it relates to cultural resources.It is a Section 106 process overview and a brief NR eligibility overview.This class is a consultant prequalification requirement.The CR Manual (ODOT 2004) includes information on ODOT’s approach and overall direction regarding cultural resources.When you are notified that you have successfully completed this class, you may submit your prequalification application to ODOT’s Office of Consultant Services.
2 36 CFR Part 800 Protection of Historic Properties Section 10636 CFR Part 800Protection of Historic Properties
3 What is Section 106?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.”
4 Section 106 RegulationsRegulations at 36 CFR Part 800 provide details on how agencies comply with Section 106There have been minor changes to regulations that took effect in 1999
5 ODOT’s Section 106 Programmatic Agreement Executed July 17, 2006Signed by ACHP, FHWA, SHPO & ODOT.Broad responsibilities delegated to ODOT, which functions on behalf of FHWA.It is ODOT’s Section 106 Process.All Section 106 reviews must come to the Office of Environmental Services for review and processing (except CE Exempt actions).SHPO receives nearly every finding issued by ODOT.This PA supersedes the minor projects MOU that is in the Cultural Resources Manual (2004).
6 Participants in Sec. 106 Process Federal agenciesAdvisory Council on Historic PreservationConsulting partiesPublicPurposesParticipants in the Section 106 process.
7 Participants: Federal agencies Federal agency is responsible for complying with Section 106 and making all decisions required for compliance.Federal agency can authorize applicants for Federal assistance, licenses, permits, or approvals to initiate process, but agency is still legally responsible for all findings and determinations.
8 Participants: Federal agencies The definition of “Federal agency” includes local and state governments that have been delegated responsibility for compliance with Section 106.Some state agencies (such as ODOT) have received such responsibility via programmatic agreements.
9 Participants: Advisory Council on Historic Preservation 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.
10 Participants: Consulting parties State Historic Preservation OfficeLocal governments and applicants for federal assistance, permits, licenses, and approvalFederally recognized Native American Indian tribes and Native Hawaiian organizationsIndividuals/organizations with demonstrated legal, economic, or preservation interest who ask to participate, as agreed to by FHWA, ODOT, SHPO, and CouncilOther parties agreed to by FHWA, ODOT, SHPO, and Council
11 Consulting Parties: State Historic Preservation Officer SHPO advises and assists Federal agenciesSHPO advises and assists other agencies that have delegated authority, such as ODOT.Agreement between FHWA/ODOT and SHPO can, in many cases, conclude processWhen multiple states involved, SHPOs may designate a lead SHPO800.2(c)(1)(i) Participants in the Section 106 process: Consulting parties: State Historic Preservation Officer800.3(c)(2) Initiation of the Section 106 process: Identify the appropriate SHPO and/or THPO: Undertakings involving more than one state
12 Participants: The public Public participation is important.Basic requirement of Sec. 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 on their own initiative.
13 DocumentationAgency 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 provides details on documentation standards and guidance on the adequacy of documentation.
15 Step I: Initiate the Section 106 process Establish undertakingCoordinate with other reviewsIdentify consulting partiesPlan to involve the publicFHWA & ODOT use the NEPA public involvement process to achieve this Sec. 106 goal.
16 Establish Undertaking FHWA & ODOT must determine:whether its action meets the definition of undertaking in the National Historic Preservation ActAnd, if so, whether it is a type of activity that has potential to affect historic propertiesThis is a unilateral agency determination, but Council may issue advisory opinion800.3(a) Initiation of the Section 106 process: Establish undertaking800.9(a) Council review of Section 106 compliance: Assessment of Agency Official compliance for individual undertakings
17 Undertaking 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 (y))
18 Undertaking (cont.)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 Sec. 106 review and coordination under 36 CFR Part 800.
19 Conclusion of Step IIf no undertaking or if undertaking has no potential to cause effects to historic properties, the Sec. 106 process is complete.Document this finding to respond to questions or inquiries by public or other parties.If undertaking could cause effects, go to next step.
20 Historic Property 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 (l)(1))
21 Step I: Initiate Section 106 Process Establish undertakingIdentify appropriate SHPO/THPOPlan to involve the publicIdentify other consulting partiesNo Undertaking/No Potential To Cause EffectsPublic involve-mentUndertaking Might Affect Historic Properties
23 Determining scope of effort FHWA & ODOT consult with SHPO todetermine and document the area of potential effectsreview existing information about historic propertiesseek information about parties likely to have knowledge of or concerns about the area
24 Area of Potential Effects Definition from 36 CFR Section (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.”The APE will be informally based on the size, scope, context, and visual intrusiveness of a project.In ODOT’s process, “APE” basically equates with “Study Area.”800.16(d) Definitions: Area of potential effects800.4(a) Identification of historic properties: Determine scope of identification efforts800.2(c)(3)(iv) Participants in the Section 106 process: Consulting Parties:Indian Tribes and Native Hawaiian organizations
25 Flexibility in Identification Effort FHWA & ODOT efforts must consider:Magnitude and nature of undertakingDegree of Federal involvementPast studiesNature and extent of potential effectsLikely nature and location of historic propertiesApplicable standards and guidelinesConfidentiality concerns (archaeology sites)800.4(b)(1) Identification of historic properties: Identify historic properties: Level of effort800.11(c) Documentation standards: Confidentiality
26 Evaluation of Significance 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 to be eligible.800.4(c)(1) Identification of historic properties: Evaluate historic significance: Apply National Register criteria
27 National Register of Historic Places It is a listing of resources identified as worthy of recognition and preservation.It has a nomination process distinct from 106 evaluation decision and processThreshold tests: Age and IntegrityFour Eligibility Criteria: significance forA: events in historyB: significant person or group of peopleC: architecture, construction, or aestheticqualitiesD: archaeology (ability to yield importantinformation)
28 Examples of Properties on the National Register of Historic Places Ohio Stadium, ColumbusCriterion A and COhio Theatre, Columbus
29 Ulysses S. Grant’s boyhood home, Brown County 01Ulysses S. Grant’s boyhood home, Brown CountyCriterion BGerman Village Historic district, ColumbusCriterion C
30 Agler-LaFollette House, Columbus Criterion CShrum (Campbell) Mound, ColumbusCriterion D
31 Other NRHP sitesOther properties can be included on the NRHP besides buildings and archaeological sites.Eden Park Water Tower, CincinnatiInverness Golf Course, ToledoG. A. Boeckling paddlewheel steam boatObjects like old National Road mile markersFirst concrete street in the nation in BellefontaineCincinnati gas street lampsBridges, train stations, factories, lighthouses, cemeteries
32 NRHP Definition of Integrity It is the 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
33 NRHP Integrity (cont.)Integrity enables a property to illustrate significant aspects of its past.A property 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.
34 NRHP Property Boundaries NR boundaries are needed to determine EFFECT in Sec. 106, not ELIGIBILITY!We may never need to have a boundary determination for an eligible property.Boundaries are determined based on what makes the property eligible under the NRHP criteria.
35 Conclusion of Step II 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”ODOT makes a formal finding of either “no historic properties affected” or “historic properties affected”800.4(d)(1) Identification of historic properties: Results of identification and evaluation: No historic properties affected800.4(d)(2) Identification of historic properties: Results of identification and evaluation: Historic properties affected
36 “No Historic Properties Affected” Finding Appropriate when:ODOT and FHWA have determined that no historic properties are present in the APE; orthere are historic properties present but the undertaking will not have any effect on them800.4(d)(1) Identification of historic properties: Results of identification and evaluation: No historic properties affected
37 Review of “No Historic Properties Affected” Finding ODOT must provide documentation to the SHPO, notify consulting parties, and make documentation available to the public.SHPO may disagree with ODOT and FWHA, triggering next stepIf no objection, Section 106 compliance is complete800.4(d)(1) Identification of historic properties: Results of identification and evaluation: No historic properties affected800.2(b)(1) Participants in the Section 106 process: Council: Council entry into the Section 106 process
39 Step III: Assess Adverse Effects 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
40 Criteria of Adverse Effect Adverse effect occurs when effect of undertaking causes the integrity of a historic property to be diminishedODOT and FHWA must:consider both direct and indirect effectsconsider reasonably foreseeable effects: cumulative, later in time, or at a distanceconsider all qualifying characteristics of a property800.5(a)(1) Assessment of adverse effects: Apply criteria of adverse effect: Criteria of adverse effect
41 Examples of Adverse Effect physical destruction or damagealteration not consistent with the Secretary of the Interior’s Standards for Rehabilitationrelocationchange of use or change to physical features of a property’s settingvisual, atmospheric, or audible intrusionsneglect resulting in deterioration800.5(a)(2) Apply criteria of adverse effect: Examples of adverse effects
42 Conclusion of Step IIIODOT can propose a “No Adverse Effect” finding and notify consulting parties. If no objection by SHPO, Sec. 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, Sec. 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.
43 Step III: Assess Adverse Effects Apply criteria of adverse effectNo Historic Properties Adversely AffectedPublic involve-mentHistoric Properties Are Adversely Affected
44 Step IV: Resolve adverse effects ODOT can propose an “adverse effect” finding to SHPOODOT and FHWA continue consultation with SHPO and other consulting parties to explore alternatives that may avoid, minimize, and/or mitigate adverse effects
45 Agency Notification to Council For all adverse effect findings, the Federal agency must notify the Council by providing Documentation for Consultation given to consulting parties, which includes description of:undertaking and APEidentification steps and affected historic propertiesproject effects and why the criteria of adverse effect are applicableviews of consulting parties and public800.6(a)(1) & (1)(i) Resolution of adverse effects: Continue consultation: Notify the Council and determine Council participation800.11(e) Documentation standards: Finding of no adverse effect or adverse effect
46 Agency Invitation to the Council to Participate The Federal agency notification to the Council must include an invitation to participate in consultation when:the Agency wants Council involvementa National Historic Landmark is adversely affecteda Programmatic Agreement is proposed800.6(a)(1)(i) Resolution of adverse effects: Continue consultation: Notify the Council and determine Council participation
47 Council Decision to Participate in Resolution of Adverse Effects Council has 15 days to respond when notified of project by the Federal agency or requested to enter consultation by another partyWhen entering process,Council now must:document that criteria for Council involvement are metadvise the Federal agency or agency with delegated authority, such as ODOT800.6(a)(1)(iii) Resolution of adverse effects: Continue consultation: Notify the Council and determine Council participationAppendix A: Criteria for Council Involvement in Reviewing Individual Section 106 Cases800.2(b)(1) Participants in the Section 106 process: Council: Council entry into the Section 106 process
48 Public Participation During Resolution of Adverse Effects FHWA and ODOT must seek views of the publicTo resolve adverse effects, FHWA’s and ODOT’s public involvement efforts have to take into account:the magnitude of undertaking andthe nature of its effects upon historic propertiesthe likely effects on historic propertiespublic participation efforts at earlier stepsconfidentiality concerns (archaeology sites)800.6(a)(4) Resolution of adverse effects: Continue consultation: Involve the public800.6(a)(5) Resolution of adverse effects: Restrictions on disclosure of information800.11(c) Documentation standards: ConfidentialitySection National Historic Preservation Act
49 Conclusion of Step IVIf FHWA, ODOT, SHPO and Council agree on how adverse effects will be resolved, they execute a Memorandum of Agreement.The MOA is prepared and it defines the steps taken to mitigate the adverse effect.When the Council does not participate in consultation, the Federal agency must submit a copy of executed MOA to the Council with appropriate documentation to finish Sec. 106.Federal agency must ensure the undertaking is carried out in accordance with the MOA.800.6(b)(1)(iv) Resolution of adverse effect: Resolution without the Council800.11(f) Documentation standards: Memorandum of Agreement800.9(d) Council review of Section 106 compliance: Evaluation of Section 106 operations: Improving the operation of Section 106
50 Memorandum of Agreement Execution of MOA is required among FHWA, SHPO, ODOT, and local agency with legal involvement, such as a City or County.Additional participants in MOA could be a local historical society, Federally recognized Indian tribe, community organization, or private citizen.All are represented in the MOA that they have participated in the MOA consultation process.
51 Purposes of the MOATo 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.
52 Who signs the agreement? SignatoriesFHWASHPO and/or THPO (on tribal land)ACHP (if participating)Invited signatoriesDOT and others who are assigned substantial MOA tasksConcurring partiesPersons invited by FHWA to sign in concurrence (i.e., the consulting parties)Agreement can proceed without their signatureSignatories must sign the MOA (exception for SHPO if ACHP agrees) Invited usually sign, and Concurring parties may sign. Invited and Concurring signatures are not required to proceed with the agreement.I
53 Step IV: Resolve Adverse Effects Memorandum of Agreement Continue consultationMemorandum of AgreementPublic involve-mentFailure To AgreeCouncil Comment
54 Failure to Resolve Adverse Effects If agency and SHPO cannot agree, Council must be invited to participateCouncil may consult or choose to commentIf further consultation not productive, Federal agency, SHPO, or Council can terminateFederal agency MAY ultimately decide to proceed without SHPO and/or Council agreement (this is not common.)800.6(b)(1)(v) Resolution of adverse effect: Resolve adverse effect: Resolution without the Council800.7(a) Failure to resolve adverse effects: Termination of consultation
55 Federal program alternatives Programmatic agreementsAlternative proceduresStandard treatmentsExemptionsProgram commentsUsing NEPA process in lieu of standard 106 process
56 Principles To Remember Most projects do not involve historic properties.The Federal agency is ultimately responsible for all decisions, including how the process begins and ends.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.
57 More Principles To Remember Most cases can be resolved at the state level between FHWA/ODOT and SHPO.The process has no predetermined outcome.Something always gets done.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 they be considered.
58 Additional Information: ODOT/OES website:*Call the Cultural Resource Section staff (contact information located on our website and in handouts)*There is information on OES’ website and in the Cultural Resources Manual regarding report requirements, agreements, publications, historic bridges, general guidance and related links.