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

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

What follows is a presentation text in PowerPoint format. It is being presented that way because the staff of the Tennessee State Historic Preservation Office’s 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.

INTRODUCTION

Identify Historic Properties Step Two

Identify Historic Properties Determine Scope of Efforts Determine Scope of Efforts Identify Historic Properties Identify Historic Properties Evaluate Historic Significance Evaluate Historic Significance

Questions You Should Answer Before Beginning Consultation: Step Two: Every Undertaking Must Pass Through This Step

What is the Federal agency’s scope of effort for this project as defined in the Regulation (Area of Potential Effects)? What is the Federal agency’s scope of effort for this project as defined in the Regulation (Area of Potential Effects)? How will Historic Properties be identified? How will Historic Properties be identified? Step Two: Identify Historic Properties:

How will Historic Properties be evaluated? How will Historic Properties be evaluated? Questions:

DETERMINE SCOPE OF IDENTIFICATION EFFORTS

When determining a Scope of Effort, the Federal agency should take into account the following aspects of its undertaking (800.4 (b)(1) and 800.11(c)): · the size and nature of the undertaking · the degree of Federal involvement in the undertaking · the nature and likely location of Historic Properties within the footprint of and adjacent to the undertaking

· past Historic Preservation related studies of the vicinity of the undertaking · applicable standards and guidelines published by the State Historic Preservation Office and other appropriate agencies · the views of Consulting Parties · confidentiality concerns having to do with sensitive locational information of burial sites, archaeological sites, and traditional cultural properties

The Federal agency should balance all these concerns when defining a project’s Area of Potential Effects and identifying Historic Properties potentially affected. For example, the degree of direct Federal involvement in an undertaking may be minimal (no direct funding), but the nature of the undertaking (Federal Communications Commission licenses for cellular communications facilities and antenna structure registrations for example) may be inordinately impactful. This is true in this particular case because of the likelihood of Historic Properties being identified within project Areas of Potential Effects that would be visually affected by out of character with the landscape cellular towers.

Federal undertakings have both direct and indirect effects. That is, effects may be both direct and immediate and secondary and cumulative over time. Under the Regulation, Federal agencies should apply the “if but for” rule as they resolve a particular undertaking’s ultimate and foreseeable Area of Potential Effects. For example, a Federal agency receives an application for a permit to build a large marina out from the shore of a lake in conjunction with the construction of an adjacent condominium development and golf course. The agency is required, in establishing the undertaking’s immediate and foreseeable Area of Potential Effects, to determine whether the marina is essential to the condominium and golf course development.

A standard operating procedure for making such a determination involves reviewing the condominium and golf course development site plan to decide whether the marina is among its charted and marketed programmatic elements. If the Federal agency determines after a good faith analysis that the successful marketing of the condominium and golf course development is directly dependent upon the construction of the marina, then the Area of Potential Effects of the undertaking should include both the marina and the condominium and golf course development. Experience dictates that the marina has the potential directly to affect archaeological Historic Properties along the lakeshore and indirectly to affect archaeological and architectural Historic Properties disturbed or visually affected during the construction of the condominium and golf course development. If the successful marketing of the condominium and golf course development does not directly depend upon the marina, the Area of Potential Effects then includes only the marina footprint.

Here is another example. A Federal agency receives a request to fund the installation of an underground water line stretching from the community water treatment plant to a proposed industrial park a few miles away. In defining the project Area of Potential Effects, the Federal agency should test the proposed industrial park against the “if but for” rule. If the industrial park is dependent for its existence upon the water line, then the project’s Area of Potential Effects includes both the route of the water line and the site of the industrial park. If the industrial park could reasonably be expected to function without the new water line (most unlikely), then the Area of Potential Effects would only include the route of the line.

The “if but for” rule is a direct result of the concept of secondary, cumulative, and foreseeable project effect. Because the Regulation states very clearly that any Federal undertaking may have both direct and indirect (secondary, cumulative, and foreseeable) effects, then Federal agencies should apply the “if but for” rule as a matter of course when deciding upon Areas of Potential Effects. Agencies that do not take both direct and indirect effects into account when deciding upon their Areas of Potential Effects risk charges of noncompliance and resultant litigation. Such agencies also risk State Historic Preservation Office findings of foreclosure of an opportunity meaningfully to comment.

Scope of Efforts: (a) DETERMINE SCOPE OF IDENTIFICATION EFFORTS. In consultation with the SHPO, the agency official shall: (a) DETERMINE SCOPE OF IDENTIFICATION EFFORTS. In consultation with the SHPO, the agency official shall:

(1) Determine and document the area of potential effects, as defined in Sec. 800.16(d); (1) Determine and document the area of potential effects, as defined in Sec. 800.16(d); Scope of Efforts:

AREA OF POTENTIAL EFFECTS (APE)

geographic area or areas _____ geographic area or areas _____ within which an undertaking may _____ within which an undertaking may _____ directly or indirectly cause alterations _____ directly or indirectly cause alterations _____ in the character or use _____ in the character or use _____ of historic properties _____ of historic properties _____ if any such properties exist _____ if any such properties exist _____ The APE is influenced by The APE is influenced by the scale and nature of an undertaking _____ the scale and nature of an undertaking _____ may be different for different kinds of effects may be different for different kinds of effects caused by the undertaking _____ AREA OF POTENTIAL EFFECTS (APE)

geographic area or areas… (This is a BOUNDED AREA on a USGS quadrant 1:24000 scale 7 ½ minute series topographic map.)

…within which an undertaking MAY…

…DIRECTLY OR INDIRECTLY cause ALTERATIONS… (Directly or Indirectly = “Immediate OR Foreseeable AND Cumulative” Alterations = “Change, Modification, or Adjustment”)

…in the CHARACTER or USE… (Character = “The combination of qualities or features that distinguishes one thing from another.” Use = “The purpose for which something is used.”)

…of Historic Properties…

…if any such properties exist.

APE COMPOSIT DEFINITION

A BOUNDED AREA ON A USGS TOPOGRAPHIC MAP WITHIN WHICH AN UNDERTAKING MAY CHANGE, MODIFY, OR ADJUST EITHER THAT COMBINATION OF QUALITIES OR FEATURES THAT DISTINGUISHES ONE HISTORIC PROPERTY FROM ANOTHER OR THE PURPOSE FOR WHICH THE HISTORIC PROPERTY HAS BEEN USED TRADITIONALLY EITHER IMMEDIATELY, CUMULATIVELY, OR WITHIN THE FORESEEABLE FUTURE.

SO FAR, YOU HAVE NOT YET BEEN EXPECTED TO STIPULATE WHETHER THAT CHANGE, MODIFICATION, OR ADJUSTMENT IS SALUTARY OR DESTRUCTIVE TO HISTORIC PROPERTIES.

THAT GETS SETTLED LATER IN THE PROCESS THROUGH CONSULTATION.

The location of the project APE is influenced by…

the SCALE and NATURE of an undertaking SCALE = “The GRADATION of the undertaking (LIGHT Federal involvement to HEAVY Federal involvement ) and the SIZE of the undertaking itself (LARGE, MEDIUM, or SMALL AREA)”

the SCALE and NATURE of an undertaking NATURE = “The particular COMBINATION OF QUALITIES belonging to the undertaking (i.e. demolition, ground disturbance, construction, etc.)”

The boundary of the APE may be DIFFERENT for different kinds of effects caused by the undertaking. There is an… Architectural APE Architectural APE Archaeological APE Archaeological APE

THE AGENCY OFFICIAL SHALL ESTABLISH AND PLOT THE PROJECT’S APE ON THE APPROPRIATE TOPOGRAPHIC MAP USING THESE METRICS

THE AGENCY OFFICIAL SHALL REVIEW EXISTING INFORMATION, SEEK INFORMATION, AND, GATHER INFORMATION ON HISTORIC PROPERTIES LOCATED WITHIN THE AREA OF POTENTIAL EFFECTS

Scope of Efforts: (2) Review existing information on historic properties within the area of potential effects, including any data concerning possible historic properties not yet identified; (2) Review existing information on historic properties within the area of potential effects, including any data concerning possible historic properties not yet identified;

(3) Seek information, as appropriate, from consulting parties, and other individuals and organizations likely to have knowledge of, or concerns with, historic properties in the area, and identify issues relating to the undertaking's potential effects on historic properties; and (3) Seek information, as appropriate, from consulting parties, and other individuals and organizations likely to have knowledge of, or concerns with, historic properties in the area, and identify issues relating to the undertaking's potential effects on historic properties; and Scope of Efforts:

(4) Gather information from any Indian tribe identified pursuant to Sec. 800.3(f) to assist in identifying properties, including those located off tribal lands, which may be of religious and cultural significance to them and may be eligible for the National Register, recognizing that an Indian tribe may be reluctant to divulge specific information regarding the location, nature, and activities associated with such sites. The agency official should address concerns raised about confidentiality pursuant to Sec. 800.11(c) (4) Gather information from any Indian tribe identified pursuant to Sec. 800.3(f) to assist in identifying properties, including those located off tribal lands, which may be of religious and cultural significance to them and may be eligible for the National Register, recognizing that an Indian tribe may be reluctant to divulge specific information regarding the location, nature, and activities associated with such sites. The agency official should address concerns raised about confidentiality pursuant to Sec. 800.11(c)

HOW WILL YOU ASSEMBLE EXISTING INFORMATION ON KNOWN HISTORIC PROPERTIES WITHIN THE BOUNDARY OF THE AREA OF POTENTIAL EFFECTS AND SEEK MORE INFORMATION FROM CONSULTING PARTIES?

Scope of Efforts: You or your cultural resources staff or consultant reviews the current architectural and archaeological site files of the Tennessee State Historic Preservation Office and any other state repository of such files such as the Tennessee State Division of Archaeology or academic institution that maintains archaeological files. Then, you consult with all other consulting parties to learn what they may know about historic properties located within the area of potential effects. Tribes and other consulting parties may have developed their own definitions of project areas of potential effects based upon the presence of properties of religious and cultural significance to them.

Scope of Efforts: When all consulting parties have responded or had a reasonable opportunity to respond, you collate all the accumulated data and use it to inform your decisions about the existence of historic properties in the area of potential effects.

Why do you…

Scope of Efforts: 1. Determine Scope of Efforts: A. Define the Area Of Potential Effects. B. Define the degree of Federal involvement in the undertaking. C. Define the nature and likely location of Historic Properties within the footprint of and adjacent to the undertaking.

Scope of Efforts: A. Define the Area Of Potential Effects. Why? You do all this to ensure you will locate all potential Historic Properties that might be affected by your undertaking RISK MANAGEMENT

B. Define the degree of Federal involvement in the undertaking. Why? To ensure you apply the correct amount of research and consultation to identify and evaluate potential Historic Properties within the APE RISK MANAGEMENT Scope of Efforts:

C. Define the nature and likely location of Historic Properties within the footprint of and adjacent to the undertaking. Why? To ensure you have evaluated the National Register eligibility of all those properties you have located within the APE. RISK MANAGEMENT Scope of Efforts:

SECTION 106 CHECKLIST

How Do You… …Define an Area of Potential Effects?

Area of Potential Effects: A. Define the Area Of Potential Effects: You should define the undertaking’s formal Area of Potential Effects in consultation with the Tennessee State Historic Preservation Office (800.16(d), 800.4(a) and 800.2(c)(3)(iv)) and in consultation with all other appropriate Consulting Parties

When determining an Area of Potential Effects, you should take into account the following aspects of the undertaking (800.4(b)(1) and 800.11(c)): Area of Potential Effects:

Questions: the size and nature of the undertaking How LARGE an area (acres, miles, etc,) are you proposing for your undertaking? _________

What is the NATURE of your undertaking? What are you planning to do there?_________________________ __________________________ Questions:

Area of Potential Effects: Remember! Your undertaking will have the potential for both direct and indirect effects to Historic Properties.

Typical Types of Effects (BOTH direct and indirect) Area of Potential Effects:

Questions: Destruction/damage/demolition_____ Alteration through new construction_____ Removal/ground disturbance______ Change in setting______

Isolation from surroundings_______ Introduction of new environmental elements_______ Neglect_______ Transfer, lease, or sale_______ Questions:

What are the possible direct effects of your undertaking? ______________________ _______________________________________ _______________________________________ _______________________________________ ____________________ Questions:

What are the possible indirect effects of your undertaking (cumulative, foreseeable, later in time, farther removed in distance)? _________________________ __________________________________ __________________________________ __________________________________ Questions:

B. Define the degree of Federal involvement in the undertaking What is the degree of Federal involvement? Funding __________(high) Licensing ____________(medium) Permitting _____________(medium) Approving _____________(low). Questions:

What is the degree of Federal involvement? On Federal property _____(high) Off Tribal Lands _____ (medium) Off Federal property _____(medium) Questions:

Area of Potential Effects: C. Define the nature and likely location of Historic Properties within the footprint of and adjacent to the undertaking

the likely nature of Historic Properties (36 CFR Part 60): Are there known National Register of Historic Places listed or eligible… Districts_____ Sites_____ Buildings_____ Structures_____ Objects_____. Questions:

likely location of Historic Properties within the footprint of and adjacent to (within sight or sound of) the undertaking Likely_________ Unlikely_________ Questions:

HOW DO YOU KNOW?

Do you know of any previously-identified Historic Properties located within the boundary of your undertaking or close to it? Yes_______ No______ Don’t Know_____ Questions:

Did you check with the Keeper of the National Register? http://www.nps.gov/history/nr/index.htm Yes_________ No_________ Questions:

Did you check with the Tennessee SHPO National Register staff? Yes_________ No_________ Questions:

Did you check with the other Consulting Parties? Yes_________ No_________ Questions:

Do you know of past Historic Preservation related studies of the vicinity of the undertaking Yes_________ No_________ Don’t Know_____

Do you know the applicable survey standards and guidelines published by the State Historic Preservation Office and other appropriate agencies Have you located any such standards? Yes_________ No_________ Questions:

Do you know the initial views of Consulting Parties concerning National Register eligible properties and the boundaries of the Area of Potential Effects? Yes_________ No________ Questions:

Reality Check: If “No,”, then do not proceed until you have formally asked for the initial views of all other Consulting Parties.

Do you know of any confidentiality concerns having to do with sensitive locational information of burial sites, archaeological sites, and traditional cultural properties Yes_________ No_________ Questions:

Confidentiality Concerns What limits do the NHPA, and 36 CFR Part 800, and the U. S. Supreme Court impose upon the information gathered during Section 106 review that is openly available to the public?

Section 304 of the NHPA says that, “the head of a federal agency or other public official receiving grant assistance pursuant to this Act, after consultation with the Secretary of the Interior, shall withhold from disclosure to the public, information about the location, character, or ownership of a historic resource if the Secretary and the agency decide that disclosure may: (a) cause a significant invasion of privacy; (b) risk harm to the historic resource; or (c) impede the use of a traditional religious site by practitioners. Confidentiality Concerns

HOWEVER…

The 36 CFR Part 800.2(d)(2) regulation states “The agency official must, except where appropriate to protect confidentiality concerns of affected parties, provide the public with information about an undertaking and its effects on historic properties and seek public comment and input.” Confidentiality Concerns

Please note the clearly stated regulatory exception relating to confidentiality concerns defined at Section 304 of the NHPA involving public access. Confidentiality Concerns

Legitimate concerns in Congress: disclosure of sensitive historic property locational information to the public would…  contend with private property rights  draw unwanted attention from looters of significant archaeological sites  hamper legitimate protection of traditional religious sites Confidentiality Concerns

In Pell v. Procunier (1974) the United States Supreme Court found that the press did not have a constitutional right of access greater than that allowed to the public. The Court stated that the press and the public are regularly excluded from grand jury proceedings, judicial conferences, crime scenes, disaster scenes, meetings of some official bodies, and meetings of private organizations. According to the finding, the Constitution does not impose upon government “the affirmative duty to make available to journalists sources of information not available to members of the public generally.”Pell v. Procunier Confidentiality Concerns

Therefore, any consultation meeting held as the result of a Section 106 case where there is a reasonable expectation that sensitive prehistoric or historic archaeological properties or sensitive traditional cultural properties will be discussed and/or located on a map will be closed both to the public and the press, and to all others who do not have clear standing as consulting parties as defined at 36 CFR Part 800.2. Confidentiality Concerns

To preserve press and public freedom of information about the undertaking, members of the press and the public must be offered ample occasion during scheduled public meetings to hear in general terms from the agency official about the project under discussion and to enter their concerns into the public record. Confidentiality Concerns

Reality Check: Do not move further until you have made a good faith effort to answer all the preceding questions.

APE CONSULTATION WITH THE SHPO

Now that you have gathered all the necessary documentation on the undertaking’s APE, you should submit it to the Tennessee SHPO. APE consultation with the SHPO:

The APE consultation documentation you should send to the Tennessee SHPO is similar to that which you submitted with your initial review request. APE consultation with the SHPO:

If you have previously consulted on an APE with the Tennessee SHPO informally, you may combine initial review and APE review in one step. Reality Check:

But, if not, prepare the following documents for submittal to the Tennessee SHPO… APE Consultation with the SHPO:

A letter requesting Section 106 review of your undertaking‘s proposed Area of Potential Effects Yes_________ No_________ APE Consultation with the SHPO:

(a)The name of the federal agency funding, licensing, or permitting your undertaking. _____ (b) The name, address, and telephone number of the applicant for federal funding, licensing, or permitting. _____ (c) The street address, city, and county of the undertaking. _____ (d) A list of Consulting Parties invited to participate in consultation relative to the APE. _____. APE Consultation with the SHPO:

(e) A USGS 7 1/2 minute topographic map (be sure to include the name of the map) clearly indicating the boundary of the undertaking, the location of all undertaking elements, and the undertaking’s proposed Area of Potential Effects. _____ (f) Other suitably scaled maps or site plans as necessary to depict the extent of the undertaking and its locational relationship to its surroundings and environment. _____ APE Consultation with the SHPO:

(g) A narrative which describes the undertaking in sufficient detail to enable a reader unfamiliar with the undertaking or its location to gain a full understanding of the undertaking and all of its elements and their potential to affect directly and indirectly any historic properties within the proposed Area of Potential Effects. _____ APE Consultation with the SHPO:

(h) Original chemical or digital photographs of the undertaking’s proposed Area of Potential Effects that are numbered and clearly keyed to one of the above maps or site plans (“Tennessee State Historic Preservation Office, Review and Compliance Section, Photographic Policy Standards and Guidelines:Initial Request, 2011”*). ______ APE Consultation with the SHPO: *Excerpted from “National Register Photo Policy Factsheet” Office of the Keeper of the National Register of Historic Places, 2008

APE Consultation with the SHPO: Federal agencies and applicants for Federal assistance must provide photographic documentation to accompany their Section 106 review requests. This photographic documentation must comply with the following Policy Standards and Guidelines. 1. Buildings, structures, and objects: a. Submit photographs showing the principal facades and the setting in which the property is located. Additions, alterations, intrusions, and dependencies should appear in the photographs. b. Include views of interiors, outbuildings, landscaping, or unusual features if they contribute to the significance of the property.

APE Consultation with the SHPO: 2. Historic and archeological sites: a. Submit photographs showing the condition of the site and any above- ground or surface features and disturbances. b. If relevant to the evaluation of significance, include drawings or photographs illustrating artifacts that have been removed from the site. c. At least one photograph must show the physical environment and topography of the site.

APE Consultation with the SHPO: 3. Architectural and Historic Districts (key all photographs to the sketch map for the district): a. Submit photographs showing major building types and styles, pivotal buildings and structures, and representative noncontributing resources. b. Streetscapes and landscapes are recommended. Aerial views may also be useful. Views of significant topographic features and spatial elements should also be submitted. c. Views of individual buildings are not necessary if streetscape views clearly illustrate the significant historical and architectural qualities of the district.

APE Consultation with the SHPO: 4. Archeological Districts: a. Submit photographs of the principal sites and site types within the district following the guidelines for archaeological sites (see above). 5. Selecting a Digital Camera: Six megapixel or greater digital SLR camera 6. Taking the Picture: Tag Image File format (TIFF) or RAW format images. Six megapixels or greater (2000 x 3000 pixel image) at 300 dpi

APE Consultation with the SHPO: 7. Printing the Images: a. No more than two images per 8 ½” X 11” page b. Manufacturer recommended ink for photograph printing - some examples: 1. Epson UltraChrome K3 2. Kodak No. 10 Pigmented Inks 3. HP Vivera Pigment Inks 4. Epson Claria “Hi-Definition Inks” 5. Epson DuraBrite Ultra Pigmented Inks 6. HP Vivera 95 dye-based inks

APE Consultation with the SHPO: 8. Examples of acceptable photo label – place below photograph: a. Name of Property: b. Street Address: c. City or Vicinity: d. County: e. State: f. Date of Photograph:

(i) Any available information including dates of construction of buildings either inside the undertaking footprint or within view or sound of the undertaking. Be sure to include photographs of buildings within the undertaking’s proposed Area of Potential Effects. _____ APE Consultation with the SHPO:

HOW DO YOU ENSURE YOU HAVE IDENTIFIED ALL POTENTIAL HISTORIC PROPERTIES?

Historic Properties: 2. Identify Historic Properties: Once you have reached consensus on the defined project Area of Potential Effects in consultation with the Tennessee State Historic Preservation Officer and others…

…you should take steps to identify any above or below-ground human- made things inside the boundary of that APE that might be Historic Properties. Historic Properties:

Once a Federal agency has defined the project Area of Potential Effects, it should take steps to identify any potentially affected Historic Properties within its boundary. This often -- but not always -- involves an on the ground reconnaissance level survey of the Area of Potential Effects for archaeological and architectural resources. Cultural resources surveys should be conducted by qualified agency staff, qualified applicant staff, or qualified Historic Properties contractors. The Tennessee State Historic Preservation Office has prepared a reporting standard that Federal agencies and applicants should use as a guidance document for the preparation of Historic Properties surveys.

The scope of such Historic Property surveys should be defined following direct consultation between the Federal agency or its duly certified applicant, the Tennessee State Historic Preservation Office, and other Consulting Parties. All survey reports and those who prepare them should conform to the “Secretary Of The Interior’s Standards And Guidelines For Archaeology And Historic Preservation”. The Tennessee State Historic Preservation Office will likely return to the Federal agency for appropriate revision any survey reports that do not meet documentation standards contained in the Regulation and reporting standards established by the Tennessee State Historic Preservation Office.

Historic Properties: Simply put, the Section 106 review process identifies, evaluates, and treats Historic Properties. Historic Properties are “all those buildings, districts, structures, sites, and objects, identified as yet or not, that are eligible for listing in the National Register of Historic Places.”

How Do You… …Identify Historic Properties?

(1) LEVEL OF EFFORT. The agency official shall make a reasonable and good faith effort to carry out appropriate identification efforts, which may include background research, consultation, oral history interviews, sample field investigation, and field survey. The agency official shall take into account past planning, research and studies, the magnitude and nature of the undertaking and the degree of Federal involvement, the nature and extent of potential effects on historic properties, and the likely nature and location of historic properties within the area of potential effects. The Secretary's standards and guidelines for identification provide guidance on this subject. The agency official should also consider other applicable professional, State, tribal, and local laws, standards, and guidelines. The agency official shall take into account any confidentiality concerns raised by Indian tribes or Native Hawaiian organizations during the identification process. (1) LEVEL OF EFFORT. The agency official shall make a reasonable and good faith effort to carry out appropriate identification efforts, which may include background research, consultation, oral history interviews, sample field investigation, and field survey. The agency official shall take into account past planning, research and studies, the magnitude and nature of the undertaking and the degree of Federal involvement, the nature and extent of potential effects on historic properties, and the likely nature and location of historic properties within the area of potential effects. The Secretary's standards and guidelines for identification provide guidance on this subject. The agency official should also consider other applicable professional, State, tribal, and local laws, standards, and guidelines. The agency official shall take into account any confidentiality concerns raised by Indian tribes or Native Hawaiian organizations during the identification process.

Historic Properties are National Register eligible if they retain integrity of: · design · feeling · association · workmanship · setting · location · materials at the time they are evaluated, and

if they meet one or more of the four National Register of Historic Places Criteria for Evaluation. These criteria are: · association with historic figures · association with historic events · association with significant architecture · association with the answers to significant research questions, and

Unless they are exceptionally significant, they must be fifty years old or older at the time of the Section 106 review request.

The agency official shall make a reasonable and good faith effort to carry out appropriate identification efforts.  background research  consultation  oral history interviews  sample field investigation  field survey

The agency official shall take into account  past planning  research and studies  the magnitude and nature of the undertaking  the degree of Federal involvement  the nature and extent of potential effects on historic properties  the likely nature and location of historic properties within the area of potential effects

The agency official shall take into account  the Secretary's standards and guidelines for identification that provide guidance on this subject.  other applicable professional, State, tribal, and local laws, standards, and guidelines.  any confidentiality concerns raised by Indian tribes or Native Hawaiian organizations during the identification process

PHASED IDENTIFICATION AND EVALUATION OF HISTORIC PROPERTIES

(2) Phased identification and evaluation. Where alternatives under consideration consist of corridors or large land areas, or where access to properties is restricted, the agency official may use a phased process to conduct identification and evaluation efforts. The agency official may also defer final identification and evaluation of historic properties if it is specifically provided for in a memorandum of agreement executed pursuant to Sec. 800.6, a programmatic agreement executed pursuant to Sec. 800.14(b), or the documents used by an agency official to comply with the National Environmental Policy Act pursuant to Sec. 800.8.

The process should establish the likely presence of historic properties within the area of potential effects for each alternative or inaccessible area through background research, consultation and an appropriate level of field investigation, taking into account the number of alternatives under consideration, the magnitude of the undertaking and its likely effects, and the views of the SHPO/THPO and any other consulting parties. As specific aspects or locations of an alternative are refined or access is gained, the agency official shall proceed with the identification and evaluation of historic properties in accordance with paragraphs (b)(1) and (c) of this section

USEFUL GUIDANCE DOCUMENTS

The National Park Service has issued a federal regulation (36 CFR Part 60) (http://www.cr.nps.gov/nr/regulations.htm) that echoes the requirements of the NHPA and offers guidance on resolving questions of National Register eligibility. The Office of the Keeper of the National Register that has direct authority over the Criteria of Eligibility also publishes various guides called “Bulletins” (http://www.cr.nps.gov/nr/publications/bulletins.htm) that offer more specific guidance for deciding on the National Register eligibility of properties. Federal agencies and State Historic Preservation Offices use this regulation and these Bulletins (particularly Bulletin# 15) to decide whether properties that might be affected by federal programs and projects meet National Register eligibility Criteria for Evaluation. http://www.cr.nps.gov/nr/regulations.htmhttp://www.cr.nps.gov/nr/publications/bulletins.htmhttp://www.cr.nps.gov/nr/regulations.htmhttp://www.cr.nps.gov/nr/publications/bulletins.htm USEFUL GUIDANCE DOCUMENTS

HOW DO YOU EVALUATE HISTORIC PROPERTIES CORRECTLY?

Historic Properties: 3. Evaluate Historic Properties: Once you have identified cultural resources that might be historic properties in consultation with the Tennessee State Historic Preservation Officer and others…

…you should take steps to evaluate them as Historic Properties eligible for listing in the National Register of Historic Places. Historic Properties:

How Do You… …Evaluate Historic Properties?

(c) EVALUATE HISTORIC SIGNIFICANCE. (1) Apply National Register criteria. In consultation with the SHPO and any Indian tribe that attaches religious and cultural significance to identified properties and guided by the Secretary's standards and guidelines for evaluation, the agency official shall apply the National Register criteria (36 CFR part 60 and part 63) to properties identified within the area of potential effects that have not been previously evaluated for National Register eligibility.

WHY MUST YOU APPLY NATIONAL REGISTER CRITERIA TO CULTURAL RESOURCES FOR EACH CURRENTLY PROPOSED UNDERTAKING RATHER THAN USE THE DETERMINATIONS OF ELIGIBILITY DERIVED FROM PREVIOUS SURVEYS?

Because, the passage of time, changing perceptions of significance, or incomplete prior evaluations may require the agency official to reevaluate properties previously determined eligible or ineligible. Historic Properties:

In reevaluating cultural resources, the agency official shall also acknowledge that Indian tribes and Native Hawaiian organizations possess special expertise in assessing the eligibility of historic properties that may possess religious and cultural significance to them. Historic Properties:

NATIONAL REGISTER CRITERIA

The National Historic Preservation Act of 1966, 80 Stat. 915, 16 U.S.C. 470 et seq., as amended, authorizes the Secretary of the Interior to expand and maintain a NATIONAL REGISTER of DISTRICTS, SITES, BUILDINGS, STRUCTURES, AND OBJECTS significant in American history, architecture, archeology, engineering and culture.

WHAT ARE THE DEFINITIONS OF DISTRICTS, SITES, BUILDINGS, STRUCTURES, AND OBJECTS?

Historic Properties: A BUILDING is a structure created to shelter any form of human activity, such as a house, barn, church, hotel, or similar structure. Building may refer to a historically related complex such as a courthouse and jail or a house and barn.

A DISTRICT is a geographically definable area, urban or rural, possessing a significant concentration, linkage, or continuity of sites, buildings, structures, or objects united by past events or aesthetically by plan or physical development. A district may also comprise individual elements separated geographically but linked by association or history. Historic Properties:

An OBJECT is a material thing of functional, aesthetic, cultural, historical or scientific value that may be, by nature or design, movable yet related to a specific setting or environment. Historic Properties:

A SITE is the location of a significant event, a prehistoric or historic occupation or activity, or a building or structure, whether standing, ruined, or vanished, where the location itself maintains historical or archeological value regardless of the value of any existing structure. Historic Properties:

A STRUCTURE is a work made up of interdependent and interrelated parts in a definite pattern of organization. Constructed by man, it is often an engineering project large in scale. Historic Properties:

Historic Properties also include: (a)artifacts, records, and remains that are related to and located within such properties; (b) properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization that meet the National Register Criteria for Evaluation and pass the integrity test; and (c) cultural landscapes and view sheds, either natural or human-influenced.

Cultural landscapes and view sheds include geographic areas, including both cultural and natural resources and the wildlife or domestic animals therein, associated with an historic event, activity, or person, or exhibiting other cultural or aesthetic values.

Historic Properties also possess character-defining features that include the visual aspects and physical features that comprise the appearance of every historic property, including the overall shape or boundary of the property, its materials, craftsmanship, decorative details, interior, and features, as well as the various aspects of its setting. Historic Properties:

Criteria for Evaluation (36 CFR 60.4). The criteria applied to evaluate properties (other than areas of the National Park System and National Historic Landmarks) for the National Register are listed below. These criteria are worded in a manner to provide for a wide diversity of resources. The following criteria shall be used in evaluating properties for nomination to the National Register, by NPS in reviewing nominations, and for EVALUATING NATIONAL REGISTER ELIGIBILITY OF PROPERTIES. Historic Properties:

The quality of SIGNIFICANCE in American history, architecture, archeology, engineering, and culture is present in districts, sites, buildings, structures, and objects that possess INTEGRITY of location, design, setting, materials, workmanship, feeling, and ASSOCIATION and… 36 CFR 60.4 Historic Properties:

(a) that are associated with EVENTS that have made a significant contribution to the broad patterns of our history; or Historic Properties: 36 CFR 60.4

(b) that are associated with the lives of PERSONS significant in our past; or Historic Properties: 36 CFR 60.4

(c) that embody the distinctive CHARACTERISTICS of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or (c) that embody the distinctive CHARACTERISTICS of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or Historic Properties: 36 CFR 60.4

(d) that have yielded, or may be likely to yield, INFORMATION important in prehistory or history. Historic Properties: 36 CFR 60.4

36 CFR 63.2(a) The agency [official] shall consult the State Historic Preservation Officer as the first step in identifying historic properties for information concerning: (1) Properties listed in the National Register. (2) Properties in the process of nomination to the National Register. (3) Properties determined eligible by the Secretary of the Interior for listing in the National Register. (4) Any other available information that would assist in identifying properties in the area affected by the proposed action.

Historic Properties: 36 CFR 63.2(B) IF THE STATE HISTORIC PRESERVATION OFFICER DOES NOT HAVE ADEQUATE INFORMATION TO DOCUMENT THE PRESENCE OR ABSENCE OF HISTORIC PROPERTIES IN THE PROJECT AREA (AREA OF POTENTIAL EFFECTS), THE FEDERAL AGENCY SHOULD REFER TO THE DEPARTMENT OF THE INTERIOR'S CRITERIA FOR THE IDENTIFICATION OF HISTORIC PROPERTIES AND THE GUIDELINES FOR LEVEL OF DOCUMENTATION TO ACCOMPANY REQUESTS FOR DETERMINATIONS OF ELIGIBILITY FOR INCLUSION IN THE NATIONAL REGISTER CODIFIED AT 36 CFR 800.4.

Historic Properties: 36 CFR 63.6(B) IF THE KEEPER OF THE NATIONAL REGISTER DETERMINES THAT A PROPERTY HAS LOST THE CHARACTERISTICS THAT MADE IT ELIGIBLE FOR THE NATIONAL REGISTER, HE WILL INFORM THE STATE HISTORIC PRESERVATION OFFICER AND THE FEDERAL AGENCY AND REMOVE THE PROPERTY FROM THE LIST OF ELIGIBLE PROPERTIES.

WHAT DOES ALL THAT MEAN? THAT MEAN?

It means that Agency Officials must use National Register criteria to evaluate properties within APEs even if SHPO’s have provided them with inadequate evidence to document the presence or absence of historic properties, and Agency Officials cannot claim that, since the SHPO has not formally designated a property either listed or eligible, the property is not eligible. NATIONAL REGISTER ELIGIBILITY IS DYNAMIC, NOT STATIC.

It also means that properties listed on the National Register are not necessarily still eligible at the time of a specific Section 106 case review. Remember that the passage of time, changing perceptions of significance, or incomplete prior evaluations may require Agency Officials to reevaluate properties previously determined eligible or ineligible. NATIONAL REGISTER ELIGIBILITY IS DYNAMIC, NOT STATIC.

NATIONAL REGISTER ELIGIBILITY IS DYNAMIC, NOT STATIC.

THEREFORE, NOBODY, INCLUDING THE TENNESSEE SHPO, HAS A COMPLETE DATABASE OF ALL HISTORIC PROPERTIES LOCATED WITHIN THE STATE

“THE PASSAGE OF TIME, CHANGING PERCEPTIONS OF SIGNIFICANCE, OR INCOMPLETE PRIOR EVALUATIONS” ALL CAN AFFECT A SPECIFIC EVALUATION.

PLANNERS AND POLITICIANS WHO EXPECT NICE, NEAT, PERMANENT LISTS OFTEN DO NOT UNDERSTAND THIS BASIC FACT. THAT DOES NOT MAKE IT ANY LESS TRUE.

In evaluating the significance of discovered archaeological or architectural resources within the Area of Potential Effects, the Federal agency should (800.4(c)(1)) take into account such authorities as:

· The National Park Service National Register of Historic Places Criteria For Evaluation · The results of consultation with the State Historic Preservation Office and other Consulting Parties · The findings of qualified Historic Properties surveyors · The findings of qualified agency and applicant Historic Properties staff · The written notifications of tribes and others who attach religious or cultural significance to the resources · The views of the public

WHAT IS YOUR PRIMARY CHECKLIST FOR IDENTIFYING AND EVALUATING HISTORIC PROPERTIES? DO THESE IN ORDER DO THESE IN ORDER

1.Carry out appropriate identification efforts, which may include background research, consultation, oral history interviews, sample field investigation, and field survey. 2.Consult the National Register Criteria for Evaluation. 3.Evaluate the age of the property. 4.Evaluate the integrity of the property. 5.Evaluate the association of the property. 6.Seek the views of Consulting Parties 7.Seek the views of the public 8.Seek concurrence of the SHPO. Historic Properties:

USE THE SECRETARY OF THE INTERIOR'S STANDARDS FOR EVALUATION

Standard I. Evaluation of the Significance of Historic Properties Uses Established Criteria

Here are the Criteria for Evaluation A. Events B. Persons C. Design/Construction D. Information Potential

Standard II. Evaluation of Significance Applies the Criteria Within Historic Contexts

Historic Context “Eligibility determinations are made with reference to regional [and statewide] contexts addressing significant and relevant research questions. Generally, cultural or historic contexts included in [each] State Historic Preservation Plan are used as a framework for evaluating the significance of a cultural property. A "context," in this sense, is a body of knowledge in the form of one or more written documents which is defined by (a) a specific theme or topic, (b) a specific geographical area, and (c) a specific time period. All contexts and context studies are resource based, that is, they must relate to identifiable prehistoric or historic sites. This, in turn, establishes a specific property's eligibility to the National Register of Historic Places.”* *“Guidelines For Evaluating Cultural Properties, Idaho State Historic Preservation Office And Archaeological Survey Of Idaho

A Historic Context  Identifies significant historical patterns  Defines expected property types against which individual properties may be compared Historic Context

The Tennessee SHPO has prepared various context documents you may use to evaluate resources. Historic Context

Standard III. Evaluation Results in A List or Inventory of Significant Properties That Is Consulted In Assigning Registration and Treatment Priorities Historic Context

Treatment Priorities Section 106 Consultation  Identifies possible project-related effects  Defines ways in which project-related effects may be resolved

Standard IV. Evaluation Results Are Made Available to the Public

USE THESE EVALUATION BENCHMARKS

INTEGRITY

Integrity is the authenticity of a building’s historic identity, evidenced by the survival of physical characteristics that existed during its historic period. It is also the extent to which a building retains its historic appearance.

Integrity is determined by the quantity and quality of a property’s historic fabric, which is the significant architectural or archaeological materials that comprise an historic property that make it historic.

Evaluate the integrity of each identified property. integrity of location, design, setting, materials, workmanship, feeling, and association

ASSOCIATION

Evaluate the association of each identified property. Association with significant events or people, or architecture, or information

Evaluate the age of each identified property. Age = 50 years old or older (sometimes as much as 4,000 years older)

USE THESE OTHER SOURCES OF NATIONAL REGISTER ELIGIBILITY INFORMATION

Agency officials must also consult SHPO lists of properties determined National Register eligible, lists of surveyed properties, archaeological site files, and the rosters of significant properties kept by various consulting parties. The task of the agency official is to winnow a final list of National Register eligible properties located within the undertaking’s area of potential effects.

TWO POSSIBILITIES

The Agency Official will submit a determination of either “no historic properties affected” or “historic properties affected” plus supporting documentation to the SHPO/THPO for a 30-day review. Reality Check:

HERE IS HOW YOU KNOW WHEN A PROPERTY IS NATIONAL REGISTER ELIGIBLE

If the agency official determines any of the National Register criteria are met and the Tennessee SHPO agrees, the property shall be considered eligible for the National Register for Section 106 purposes.

HERE IS HOW YOU KNOW WHEN A PROPERTY IS NOT NATIONAL REGISTER ELIGIBLE

If the agency official determines the criteria are not met and the Tennessee SHPO agrees, the property shall be considered not eligible.

SUPPOSE THERE IS DISAGREEMENT CONCERNING NATIONAL REGISTER ELIGIBLITY?

If the agency official and the Tennessee SHPO do not agree, or if the ACHP or the Secretary of the Interior so request, the agency official shall obtain a determination of eligibility from the Secretary pursuant to 36 CFR 63. If the agency official and the Tennessee SHPO do not agree, or if the ACHP or the Secretary of the Interior so request, the agency official shall obtain a determination of eligibility from the Secretary pursuant to 36 CFR 63.

THIS MEANS A FORMAL DETERMINATION OF ELIGIBILITY FROM THE KEEPER OF THE NATIONAL REGISTER

If an Indian tribe that attaches religious and cultural significance to a property off tribal lands does not agree, it may ask the ACHP to request the agency official to obtain a determination of eligibility

AGAIN, THIS MEANS A FORMAL DETERMINATION OF ELIGIBILITY FROM THE KEEPER OF THE NATIONAL REGISTER

Questions: Have you used the Secretary of the Interior’s Standards For Evaluation to assess the National Register eligibility of resources located in the undertaking’s Area of Potential Effects? Yes_________ No_________

Have you evaluated the resource’s integrity? Yes_________ No_________ Questions:

Have you evaluated the resource’s association? Yes_________ No_________ Questions:

Have you evaluated the resource’s age? Yes_________ No_________

Have you consulted with the Tennessee State Historic Preservation Office and other Consulting Parties concerning previous cultural resources surveys within the project’s Area of Potential Effects for archaeological and architectural resources? Yes_________ No_________ Questions:

If “Yes,” what were their determinations relative to the existence of Historic Properties? __________________________________________________ ________________________________________________ ________________________________________________ ____________________________ Questions:

Reality Check: If “No,” do not proceed until you have consulted with the Tennessee State Historic Preservation Officer and other Consulting Parties concerning previous surveys for archaeological and architectural resources within the project’s Area of Potential Effects.

Have you consulted with the Tennessee State Historic Preservation Officer and other Consulting Parties concerning the need for a new cultural resources survey of the Area of Potential Effects for archaeological and architectural resources? Yes_________ No_________ Reality Check:

Questions: If “Yes,” what were their recommendations? ___________________________________________ _________________________________________ _________________________________________ _________________________

Reality Check: If “No,” do not proceed until you have consulted with the State Historic Preservation Officer and other Consulting Parties concerning the need for a new cultural resources survey.

Reality Check: If consultation concludes that you are not obliged to have a new cultural resources survey prepared, then do not do so. Use the results of previous surveys and go to the next numbered question.

Firewall: If consultation concludes that you are not obliged to have a cultural resources survey prepared because previous surveys have successfully documented that no Historic Properties exist within the project’s Area of Potential Effect, then make a formal determination to all Consulting Parties of “No Historic Properties Affected”, and if none disagree within a reasonable amount of time, …

Firewall: …you have successfully completed the Section 106 review process for that project.

THE AGENCY OFFICIAL’S ELIGIBILITY DETERMINATION

Firewall: “No Historic Properties Affected” Determination

(1) If the agency official finds that either there are no historic properties present or there are historic properties present but the undertaking will have no effect upon them as defined in Sec. 800.16(i), the agency official shall provide documentation of this finding, as set forth in Sec. 800.11(d), to the Tennessee SHPO. The agency official shall notify all consulting parties, including Indian tribes and Native Hawaiian organizations, and make the documentation available for public inspection prior to approving the undertaking. If the Tennessee SHPO, or the ACHP if it has entered the Section 106 process, does not object within 30 days of receipt of an adequately documented finding, the agency official's responsibilities under section 106 are fulfilled

Why did you make this finding? The undertaking will not alter any characteristics of an identified eligible or listed Historic Property that qualify the property for listing in the National Register___ The undertaking will not alter an eligible Historic Property's location, setting or use___ The specific location, scope and/or nature of the undertaking precluded affect to Historic Properties___ The size and nature of the undertaking’s area of potential effects precluded affect to Historic Properties___ No National Register listed or eligible Historic Properties exist within the undertaking’s area of potential effects___

“No Historic Properties Affected” No historic properties affected (800.4(d)(1) If no historic properties are found or no effects on historic properties are found, the Agency Official provides appropriate documentation to the SHPO* and notifies consulting parties. Members of the public need not receive direct notification, but the Federal agency must place its documentation in a public file prior to approving the undertaking, and provide access to the information when requested by the public. Once adequate documentation is received, the SHPO has 30 days to object to the determination. The Council may also object on its own initiative within the time period. Lack of such objection within the 30 day period means that the agency has completed its Section 106 responsibilities.** *Advisory Council on Historic Preservation, “Working With Section 106: Users Guide Firewall:

Questions: If consultation with the Tennessee SHPO confirms that you need to have a cultural resources survey conducted, have you conducted a cultural resources survey by a qualified investigator? Yes_________ No_________

Reality Check: If “No,” do not proceed until you have conducted a cultural resources survey.

If “Yes,” what were the results? ____________________________________ __________________________________ _________________________ Questions:

WHEN DO YOU USE PHASED COMPLIANCE?

Phased Compliance: identify Historic Properties using a phased approach A Federal agency has the option under the 36 CFR Part 800 regulation to identify Historic Properties within an Area of Potential Effects using a phased approach (800.4(b)(2)), if that undertaking affects:

Questions: Long corridors (highway projects) Yes_________ No_________

Large land areas (large acreages) Yes_________ No_________ Questions:

Areas where current access is restricted either by the existing property owner or the current condition of the property Yes_________ No_________ Questions:

Reality Check: cultural resources survey If you answered “Yes” to any of the preceding conditions and you have concurred with the Tennessee State Historic Preservation Office, you may postpone the cultural resources survey until a mutually-agreed-to time.

If you answered “No,” then complete the cultural resources survey and deliver it to the Tennessee State Historic Preservation Officer and other Consulting Parties for review and comment. Reality Check:

Phased Compliance: Final identification of Historic Properties should proceed promptly.

Phased Compliance: Caveat The agency cannot forego Historic Properties identification and evaluation until after the list of agency-selected alternatives has been so refined as to prevent good faith consultation on the broadest range of project alternatives.

Phased Compliance: SIDEBAR Agency-selected alternatives here means alternatives to an undertaking specifically funded by the agency or funded through a pass-through to an applicant.

Agency-permitted, –licensed, or – approved projects, programs, or activities require a good-faith effort on the part of the agency to determine whether applicant for permits, licenses, or approvals evaluated alternative activities. Phased Compliance: SIDEBAR

SIGNIFICANCE

Significance: In evaluating the significance of discovered archaeological or architectural resources within the Area of Potential Effects, you should (800.4(c)(1)) take into account ALL OF THE …

Questions: …National Park Service National Register of Historic Places Criteria For Evaluation. Have you considered ALL FOUR of the Criteria For Evaluation (Association with significant events or people, or architecture, or information) ? Yes_________ No_________ http://www.nps.gov/history/nr/listing.htm

Does at least one property meet at least one of the four National Register of Historic Places Criteria for Evaluation? Yes_________ No_________ Questions:

Remember the Criteria of Evaluation: (a)association with events that have made a significant contribution to the broad patterns of our history Yes_________ No_________ Questions:

(b) association with the lives of persons significant in our past Yes_________ No_________ Questions:

(c) embodiment of distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction Yes_________ No_________ Questions:

(d) capacity to yield, or the likelihood of yielding information important in prehistory or history Yes_________ No_________ Questions:

Is at least THAT one cultural resource 50 years old or older? Yes_________ No_________ Questions:

Does at least THAT one Historic Property retain integrity of: Design _____ Feeling _____ Association _____ Workmanship _____ Setting _____ Location _____ Materials _____ at the time you evaluated it? Questions:

Landscapes and Viewsheds: Historic Properties also include historic landscapes and viewsheds directly associated with one or more of the above-referenced Criteria…

Landscapes and Viewsheds: …as well as traditional cultural properties that encompass areas of distinct and ongoing religious and cultural importance to Native Americans and/or other traditional cultural groups which are directly associated with one or more of the above-referenced criteria.

Archaeological Site Evaluation: Evaluation of archaeological resources should be done according to the professional standards of practice. The National Register Bulletin No. 36, “Guidelines for Evaluating and Registering Archeological Properties” (www.cr.nps.gov/nr/publications/bulletins/arch/), addresses the kinds of information needed to evaluate an archaeological site under the National Register criteria.*www.cr.nps.gov/nr/publications/bulletins/arch/ *Section 106 Archaeological guidance, ACHP, http://www.achp.gov/archguide/system/files/Complete_Printable_Guidance.pdf

Questions: Does at least one property qualify as an historic landscape or traditional cultural property? Yes_________ No_________

Using the preceding points of evaluation, does at least one National Register of Historic Places Historic Property exist within the project’s Area of Potential Effects? Yes_________ No_________ Questions:

Are there still other National Register of Historic Places eligible Historic Properties that exist within the project’s Area of Potential Effects? Yes_________ No_________ Questions:

Have you factored in the results of consultation with the Tennessee State Historic Preservation Office and other Consulting Parties? Yes_________ No_________ Questions:

Have you factored in the views of the public? Yes_________ No_________ Questions:

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

DOES AT LEAST ONE PROPERTY WITHIN THE AREA OF POTENTIAL EFFECTS QUALIFY AS NATIONAL REGISTER ELIGIBLE? Yes_________ No_________ Firewall:

Reality Check: Whether “yes” or “no”, either way…

You will review the comments of the various authorities on Historic Properties and any other appropriate authorities and make a determination of National Register of Historic Places eligibility/ineligibility (800.4(c)(2) and 600.2(b)(1)) concerning ANY resource discovered within the Area of Potential Effects. Reality Check:

* Consensus Determination of Eligibility Seek the concurrence of the Tennessee State Historic Preservation Office* and other Consulting Parties Yes_________ No_________ Questions:

How will you identify and evaluate historic properties? 1.Carry out appropriate identification efforts, which may include background research, consultation, oral history interviews, sample field investigation, and field survey. 2.Consult the National Register Criteria for Evaluation. 3.Determine the age of the property. 4.Evaluate the integrity of the property. 5.Evaluate the association of the property. 6.Seek the views of Consulting Parties 7.Seek the views of the public 8.Seek concurrence of the Tennessee SHPO..

SUMMARY

Summary: Two outcomes to Step Two eligibility consultation are possible: Either… 1) The Tennessee State Historic Preservation Office may agree with your eligibility determination through a consensus determination of eligibility/non-eligibility, thus leading you to the next stage in Step Two of the Section 106 review process Eligibility Determination

2) The Tennessee State Historic Preservation Office may disagree with your determination of eligibility/non-eligibility, thus requiring you to request a formal determination of eligibility by the Keeper of the National Register of Historic Places Or… Summary: Eligibility Determination

Questions: Did the Tennessee State Historic Preservation Officer agree formally that your Area of Potential Effects contained at least one National Register eligible or listed property? Yes_________ No_________

Firewall: If “Yes,” go to Step Three

Did the Tennessee State Historic Preservation Officer agree formally that your Area of Potential Effects contained no National Register eligible or listed properties? Yes_________ No_________ Questions:

Did the Tennessee State Historic Preservation Officer agree formally that your Area of Potential Effects contained National Register eligible or listed properties, BUT, such properties would not be affected in any way by the undertaking? Yes_________ No_________ Questions:

Firewall: If “Yes,” and barring disagreement from another Consulting Party, you have successfully completed Section 106 review.

Firewall: “No Historic Properties Affected” Eligibility Determination

Documentation Standards: Sec. 800.11 Documentation Standards: Finding of No Historic Properties Affected

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

(2) A description of the steps taken to identify historic properties, including, as appropriate, efforts to seek information pursuant to Sec. 800.4(b); and Documentation Standards:

(3) The basis for determining that no historic properties are present or affected. Documentation Standards:

Prepare the documentation described at 36 CFR 800.11 for all participants in the Section 106 review process. Documentation Standards:

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

Did the Tennessee State Historic Preservation Officer formally disagree with you about the National Register eligibility of properties? Yes_________ No_________ Questions:

Firewall: If “Yes,” proceed to a Formal Determination of Eligibility (800.5).

Formal Determination of Eligibility (36 CFR Part 60). A determination of eligibility is a decision by the Department of the Interior [Keeper of the National Register] that a district, site, building, structure or object meets [or does not meet] the National Register criteria for evaluation although the property is not formally listed in the National Register. Firewall:

WHO MAKES THE FORMAL DETERMINATION OF ELIGIBILITY?

Firewall: THE KEEPER OF THE NATIONAL REGISTER OF HISTORIC PLACES (36 CFR Part 60). The Keeper is the individual who has been delegated the authority by NPS to list properties and determine their eligibility for the National Register. The Keeper may further delegate this authority as he or she deems appropriate.

If the Formal Determination concludes your Area of Potential Effects contains at least one Historic Property, GO TO STEP THREE. Firewall:

Full Stop: If the Formal Determination concludes that your Area of Potential Effects contains no Historic Property, you have successfully completed Section 106 review.

“No Historic Properties Affected” Eligibility Determination Full Stop:

Why did you make this finding? The undertaking will not alter any characteristics of an identified eligible or listed Historic Property that qualify the property for listing in the National Register___ The undertaking will not alter an eligible Historic Property's location, setting or use___ The specific location, scope and/or nature of the undertaking precluded affect to Historic Properties___ The size and nature of the undertaking’s area of potential effects precluded affect to Historic Properties___ No National Register listed or eligible Historic Properties exist within the undertaking’s area of potential effects___ CHECK IT AGAIN!

“Historic Properties Affected” Eligibility Determination

Historic properties affected. If the agency official finds that there are historic properties which may be affected by the undertaking OR the SHPO or the ACHP objects to the agency official's finding under paragraph (d)(1) of this section, the agency official shall notify all consulting parties, including Indian tribes, invite their views on the effects and assess adverse effects, if any, in accordance with 36 CFR 800.5 “Historic Properties Affected”

EVERY FEDERAL AGENCY AND APPLICANT FOR FEDERAL ASSISTANCE MUST COMPLETE STEP TWO

Approximately 85% of all Section 106 cases end at step two – No Historic Properties Affected. The results of successful Section 106 consultation…

You are nearing completion of Step Two.

PRACTICE SCENARIO

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 “Sho’nuff 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.

Take out pen and paper and answer the following questions What is the Federal agency’s scope of effort for this project as defined in the Regulation (Area of Potential Effects)? How will Historic Properties be identified? How will Historic Properties be evaluated?

ANSWERS

What is the Federal agency’s scope of effort for this project as defined in the Regulation (Area of Potential Effects)? INITIAL INFORMATION GATHERING FROM THE SHPO AND OTHER CONSULTING PARTIES CONCERNING THE AGE OF THE BRIDGE, ITS POSSIBLE ASSOCIATIONS, AND POSSIBLE ARCHAEOLOGICAL RESOURCES WITHIN THE AREAS OF GROUND DISTURBENCE

How will Historic Properties be identified? DS&L WILL COMMISSION AN ARCHITECTURAL/ARCHAEOLOGICAL SURVEY PREPARED BY QUALIFIED PERSONS AND SUBMIT THE DETERMINATIONS OF NATIONAL REGISTER ELIGIBILITY TO THE SHPO AND OTHER CONSULTING PARTIES FOR REVIEW AND COMMENT

How will Historic Properties be evaluated? IF THE SURVEY IDENTIFIES ANY ABOVE- OR BELOW- GROUND PROPERTIES THAT MIGHT BE NATIONAL REGISTER ELIGIBLE, DS&L WILL CONSULT WITH THE SHPO AND OTHER CONSULTING PARTIES TO DETERMINE A CONSENSUS LEVEL OF ELIGIBILITY/NON-ELIGIBILITY

End Section 106 Review here if no Historic Properties are affected or go on to the next step?

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

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

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