1. A BEGINNERS GUIDE TO SUCCESSFUL COMPLETION OF THE SECTION 106 REVIEW PROCESS 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 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.

3. THE GUIDING FORCE THAT DRIVES THE SECTION 106 REVIEW PROCESS IS HISTORIC PRESERVATION

4. HISTORIC PRESERVATION

5. What is Historic Preservation within a Section 106 context? The National Historic Preservation Act states: "Preservation" or "historic preservation" includes identification, evaluation, recordation, documentation, curation, acquisition, protection, management, rehabilitation, restoration, stabilization, maintenance, research, interpretation, conservation…and education and training regarding the foregoing activities or any combination of the foregoing activities.

6. Doing those things is what Section 106 of the National Historic Preservation Act is all about. Identification, Evaluation, Recordation, Documentation, Curation, Acquisition, Protection, Management, Rehabilitation, Restoration, Stabilization, Maintenance, Research, Interpretation, and Conservation of National Register of Historic Places Listed and Eligible Properties

7. THE NATIONAL HISTORIC PRESERVATION ACT OF 1966 AS AMENDED IN 1992 (NHPA)

8. NATIONAL HISTORIC PRESERVATION ACT OF 1966 AS AMENDED IN 1992 "In the face of ever-increasing extensions of urban centers, highways, and residential, commercial, and industrial development, …

9. NATIONAL HISTORIC PRESERVATION ACT OF 1966 AS AMENDED IN 1992 …the present governmental and nongovernmental Historic Preservation programs and activities are [CURRENTLY, 1966] inadequate to ensure future generations a genuine opportunity to appreciate and enjoy the rich heritage of our Nation."

10. SECTION 106 OF THE NHPA REMEDIED THAT INADEQUACY

11. SECTION 106 OF THE NATIONAL HISTORIC PRESERVATION ACT: PART ONE 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 of Historic Places.

12. 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. SECTION 106 OF THE NATIONAL HISTORIC PRESERVATION ACT: PART TWO

13. Section 106 of the National Historic Preservation Act requires Federal agencies that fund, license, permit, or approve programs, projects, and activities to take into account the effects of their undertaking upon significant architectural and archaeological properties listed in or eligible for listing in the National Register of Historic Places as they plan and carry out their undertakings. THE ESSENCE OF SECTION 106 REVIEW

14. This is a quite simple, forthright, and efficient process CODIFIED AT 36 CFR 800, complete with clearly defined STEPS and a logical PROGRESSION OF ACTIVITIES that allows the Federal agency or applicant for Federal assistance to RECEIVE HELP through CONSULTATION with a number of individuals and groups who are both knowledgeable and experienced. THE ESSENCE OF SECTION 106 REVIEW

15. SECTION 106 REVIEW IS A PLANNING PROCESS The Section 106 process is, at base, a planning process. Like any other planning process, it requires Federal agencies to: survey a specified geographic area (to identify Historic Properties eligible for listing in the National Register of Historic Places), evaluate (Historic Properties against National Register Of Historic Places criteria), and treat (any National Register-eligible Historic Properties identified) using both standard and innovative measures to avoid, minimize, or mitigate project adverse effects upon those properties.

16. 36 CFR PART 800

17. 36 CFR Part 800, which is the Federal regulation that specifies how U. S. GOVERNMENT AGENCIES comply with Section 106, designates all authorized participants in Section 106 reviews and delineates a FOUR-STEP PROCESS for successful completion of Section 106 review. 36 CFR PART 800

18. ALL FEDERAL FUNDING, LICENSING, PERMITTING, AND APPROVING PROJECTS, PROGRAMS, AND ACTIVITIES THAT MIGHT HAVE AN EFFECT UPON PROPERTIES LISTED IN OR ELIGIBLE FOR LISTING IN THE NATIONAL REGISTER OF HISTORIC PLACES ARE UNDERTAKINGS FEDERAL UNDERTAKINGS SUBJECT TO SECTION 106 REVIEW AS DEFINED AT 36 CFR 800

19. 1) ALL FEDERAL FUNDING, LICENSING, PERMITTING, AND APPROVING PROJECTS, PROGRAMS, AND ACTIVITIES

20. 2) THAT MIGHT HAVE AN EFFECT UPON

21. 3) PROPERTIES LISTED IN OR ELIGIBLE FOR LISTING IN THE NATIONAL REGISTER OF HISTORIC PLACES

22. FEDERAL UNDERTAKINGS SUBJECT TO SECTION 106 REVIEW AS DEFINED AT 36 CFR 800 THESE FEDERAL PROJECTS, PROGRAMS, AND ACTIVITIES ARE DEFINED AS UNDERTAKINGS SUBJECT TO SECTION 106 REVIEW IF THEY MEET CERTAIN CRITERIA. THIS PRESENTATION WILL LIST THESE CRITERIA DURING THE DISCUSSION OF STEP ONE IN THE SECTION 106 REVIEW PROCESS CODIFIED AT 36 CFR 800.3

23. U. S. GOVERNMENT AGENCIES APPOINT AGENCY OFFICIALS TO MOVE UNDERTAKINGS SWIFTLY AND SUCCESSFULLY THROUGH THE SECTION 106 REVIEW PROCESS

24. U. S. GOVERNMENT AGENCIES THE FEDERAL AGENCY OFFICIAL has the HIGHEST RESPONSIBILITY for completing the Section 106 review delineated at 36 CFR 800 process successfully. The agency official has specific authority to: 1)fund the project; 2)issue the license; 3)award the permit or approval; 4)make appropriate changes in a funded, licensed, or permitted activity to avoid or minimize project effect; 5) finance any mitigative measures needed to resolve adverse effect.

25. U. S. GOVERNMENT AGENCIES The Agency Official may also be a State, local, or tribal government official who has been delegated legal responsibility for compliance with Section 106 in accordance with Federal law.

26. U. S. GOVERNMENT AGENCIES The agency official should plan consultations appropriate to the scale of the undertaking and the scope of Federal involvement and coordinated with other requirements of other statutes, as applicable, such as the National Environmental Policy Act, the Native American Graves Protection and Repatriation Act, the American Indian Religious Freedom Act, the Archeological Resources Protection Act, and agency-specific legislation.

27. PARTICIPANTS IN SECTION 106 REVIEW

28. PARTIES WITH STANDING HAVE THE RIGHT TO PARTICIPATE IN SECTION 106 REVIEW

29. WHAT IS STANDING?

30. A financial or other STAKE in the outcome of the undertaking A possible injury caused by the undertaking OR by avoiding the undertaking A possibility of relief from that injury STANDING

31. “The right to initiate or participate in a legal action.” “A demonstrated interest in the undertaking.”

32. Standing ultimately means the ability of a party to demonstrate to a Federal District Court sufficient connection to and possible harm from the federal undertaking being challenged to support that party's participation in the case. In the United States, the current doctrine is that a party cannot bring a challenge to a Federal action unless that party can demonstrate that he is (or will imminently be) harmed by the action, or lack of action, and that a Court Order could eliminate that harm. Otherwise, the Court will rule that the party "lacks standing" to bring the challenge. STANDING

33. 1)Agency Official – legal and financial responsibility for the project 2)ACHP – national mandate to ensure compliance with Section 106 3)SHPOs – statewide mandate to protect historic properties 4)THPOs – religious and cultural interest on tribal land 5)Tribes – religious and cultural interest off tribal land 6)Local governments – police power jurisdiction 7)Applicants for Federal assistance – requests for funds, licenses, permits, or approvals 8)Property owners – real estate and financial stake in the project 9)Other groups or individuals with a stake in the project THE RIGHT TO BE PARTICIPANTS

34. 36 CFR 800.2 PARTICIPANTS IN THE SECTION 106 REVIEW PROCESS 1)Agency Official* 2)Advisory Council on Historic Preservation ? 3)State Historic Preservation Officer* 4)Tribal Historic Preservation Officer? 5)Indian Tribes or Native Hawaiian Organizations* 6)Representatives of Local Governments* 7)Applicants for Federal assistance? 8)Property Owners ? 9)Additional Consulting Parties (parties with STANDING)? * = always ? = sometimes

35. AGENCY OFFICIAL It is the statutory obligation of each Federal agency to fulfill the requirements of Section 106 and to ensure that a Federal AGENCY OFFICIAL with jurisdiction over an undertaking takes legal and financial responsibility for Section 106 compliance.

36. ADVISORY COUNCIL ON HISTORIC PRESERVATION The ACHP issues regulations to implement Section 106, provides guidance and advice on the application of the procedures in 36 CFR 800, and generally oversees the operation of the Section 106 process. The ACHP also consults with and comments to agency officials on individual undertakings and programs that affect historic properties.

37. STATE HISTORIC PRESERVATION OFFICER The State Historic Preservation Officer (SHPO) reflects the interests of the State and its citizens in the preservation of their cultural heritage. In accordance with section 101(b)(3) of the NHPA, the SHPO advises and assists Federal agencies in carrying out their Section 106 responsibilities and cooperates with such agencies, local governments and organizations and individuals to ensure that historic properties are taking into consideration at all levels of planning and development.

38. STATE HISTORIC PRESERVATION OFFICER AUTHORITY NHPA TITLE I Section 101 (16 US.C 470a) (3) It shall be the responsibility of the State Historic Preservation Officer to administer the State Historic Preservation Program and to--(I) consult with the appropriate Federal agencies in accordance with this Act on--(i) Federal undertakings that may affect historical properties; and (ii) the content and sufficiency of any plans developed to protect, manage, or to reduce or mitigate harm to such properties; and (J) advise and assist in the evaluation of proposals for rehabilitation projects that may qualify for Federal assistance.

39. TRIBAL HISTORIC PRESERVATION OFFICER For a tribe that has assumed the responsibilities of the SHPO for Section 106 on tribal lands under Section 101(d)(2) of the NHPA, the Tribal Historic Preservation Officer (THPO) appointed or designated in accordance with the NHPA is the official representative for the purposes of Section 106. The agency official shall consult with the THPO in lieu of the SHPO regarding undertakings occurring on or affecting historic properties ON TRIBAL LANDS.

40. INDIAN TRIBES Section 101(d)(6)(B) of the act requires the agency official to consult with any Indian tribe that attaches religious and cultural significance to historic properties that may be affected by an undertaking. This requirement applies regardless of the location of the historic property. Such Indian tribe shall be a consulting party.

41. REPRESENTATIVES OF LOCAL GOVERNMENTS A representative of a local government with jurisdiction over the area in which the effects of an undertaking may occur is entitled to participate as a consulting party. Under other provisions of Federal law, the local government may be authorized to act as the agency official for purposes of Section 106.

42. APPLICANTS FOR FEDERAL ASSISTANCE An applicant for Federal assistance or for a Federal permit, license, or other approval is entitled to participate as a consulting party as defined in this part. The agency official may authorize an applicant or group of applicants to initiate consultation with the SHPO and others, but remains legally responsible for all findings and determinations charged to the agency official.

43. PROPERTY OWNERS Certain individuals and organizations with a demonstrated interest in the undertaking may participate as consulting parties DUE TO THE NATURE OF THEIR LEGAL OR ECONOMIC RELATION TO THE UNDERTAKING OR AFFECTED PROPERTIES.

44. ADDITIONAL CONSULTING PARTIES (PARTIES WITH STANDING) Certain individuals and organizations with a demonstrated interest in the undertaking may participate as consulting parties DUE TO THE NATURE OF THEIR CONCERN WITH THE UNDERTAKING'S EFFECTS ON HISTORIC PROPERTIES.

45. THE ROLE OF THE PUBLIC IN SECTION 106 REVIEW

46. THE PUBLIC The agency official shall seek and consider the views of the public in a manner that reflects the nature and complexity of the undertaking and its effects on historic properties, the likely interest of the public in the effects on historic properties, confidentiality concerns of private individuals and businesses, and the relationship of the Federal involvement to the undertaking.

47. CONSULTATION

48. THE FEDERAL AGENCY OFFICIAL CONSULTS WITH THE OTHER PARTICIPANTS TO COMPLETE SECTION 106 REVIEW PROMPTLY AND SUCCESSFULLY

49. Consultation means the process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them regarding matters arising in the Section 106 process. The Secretary's “Standards and Guidelines for Federal Agency Preservation Programs pursuant to the National Historic Preservation Act” provide further guidance on consultation

50. THE FOUR STEP SECTION 106 REVIEW PROCESS

51. 36 CFR 800.3 THRU.6 THE FOUR STEP PROCESS 1)INITIATE SECTION 106 REVIEW 2)IDENTIFY HISTORIC PROPERTIES 3)ASSESS PROJECT EFFECTS 4)RESOLVE ADVERSE EFFECTS

52. In Consultation with other participants, Federal Agencies and applicants for Federal assistance carry out as many of the four steps as are necessary. In most cases, that usually means steps one and two.

53. INITIATE SECTION 106 REVIEW

54. Section 106 Regulations Flow Chart * Initiate Section 106 Process Establish undertaking Identify appropriate SHPO/THPO Plan to Involve the Public Identify other consulting parties No Undertaking/No Potential to Cause Effects Undertaking is a type that might affect Historic Properties *Advisory Council On Historic Preservation, Working with Section 106 Users Guide Section 106 Flow ChartWorking with Section 106Users Guide

55. ESTABLISH UNDERTAKING

56. project, activity, or program, Federally 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; or those carried out with Federal financial assistance; or those requiring a Federal permit, license or approval, or those subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency… A FEDERAL UNDERTAKING SUBJECT TO SECTION 106 REVIEW

57. …that might cause an effect to a property eligible for listing in or listed in the National Register of Historic Places

58. IDENTIFY APPROPRIATE SHPO

59. IN TENNESSEE, THE APPROPRIATE STATE HISTORIC PRESERVATION OFFICE IS THE TENNESSEE HISTORICAL COMMISSION

60. PLAN TO INVOLVE THE PUBLIC

61. When Planning to Involve the Public, Federal Agency Officials may use the agency's procedures for public involvement under the National Environmental Policy Act or other program requirements in lieu of public involvement requirements in 36 CFR 800.3 through.7, if they provide adequate opportunities for public involvement consistent with the 36 CFR 800 regulation.

62. IDENTIFY CONSULTING PARTIES

63. CONSULTING PARTIES State Historic Preservation Officer Tribal Historic Preservation Officer Indian Tribes or Native Hawaiian Organizations Representatives of Local Governments Applicants for Federal assistance Additional Consulting Parties (parties with standing)

64. IDENTIFY HISTORIC PROPERTIES

65. *Advisory Council On Historic Preservation, Working with Section 106 Users Guide Section 106 Flow ChartWorking with Section 106Users Guide Section 106 Regulations Flow Chart * Identify Historic Properties Determine Scope of Efforts Identify historic properties Evaluate historic significance No historic properties affected Historic properties are affected

66. DETERMINE SCOPE OF EFFORTS

67. SCOPE OF EFFORTS 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.

68. AREA OF POTENTIAL EFFECTS A bounded area on a USGS topographic map within which a Federal undertaking may change, modify, or adjust, either immediately, cumulatively, or within the foreseeable future, that combination of qualities or features that distinguishes an historic property or the purpose for which the historic property has been traditionally used.

69. IDENTIFY HISTORIC PROPERTIES

70. IDENTIFICATION OF HISTORIC PROPERTIES The agency official shall review existing information, seek information from Consulting Parties, and gather information on historic properties within the Area of Potential Effects.

71. EVALUATE HISTORIC PROPERTIES

72. We judge a property's significance and, ultimately, its National Register eligibility by evaluating its historic CONTEXT (significance through INTEGRITY and ASSOCIATION), and its AGE. NATIONAL REGISTER CRITERIA OF EVALUATION

73. INTEGRITY is the ability of a historic property to convey its significance. INTEGRITY

74. INTEGRITY LOCATION is the place where the historic property was constructed or the place where the historic event occurred.

75. INTEGRITY DESIGN is the combination of elements that create the form, plan, space, structure, and style of a property.

76. INTEGRITY SETTING is the physical environment of a historic property.

77. INTEGRITY MATERIALS are the physical elements that were combined or deposited during a particular period of time and in a particular pattern or configuration to form a historic property.

78. INTEGRITY WORKMANSHIP is the physical evidence of the crafts of a particular culture or people during any given period in history or prehistory.

79. INTEGRITY FEELING is a property's expression of the aesthetic or historic sense of a particular period of time.

80. ASSOCIATION is the direct link between an important historic event, or person, or significant architectural style, or newly discovered information that will illuminate our history and a historic property. ASSOCIATION

81. “Ordinarily cemeteries, birthplaces, graves of historical figures, properties owned by religious institutions or used for religious purposes, structures that have been moved from their original locations, reconstructed historic buildings, properties primarily commemorative in nature, and properties that have achieved significance WITHIN THE PAST 50 YEARS shall not be considered eligible for the National Register.” AGE

82. ASSESS PROJECT EFFECTS

83. *Advisory Council On Historic Preservation, Working with Section 106 Users Guide Section 106 Flow ChartWorking with Section 106Users Guide Section 106 Regulations Flow Chart * Assess Adverse Effects Historic properties are adversely affected No historic properties are adversely affected (conditions)

84. In consultation with the SHPO, the agency official finds an adverse effect when an undertaking may alter, directly or indirectly, any of the characteristics of a historic property that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property's location, design, setting, materials, workmanship, feeling, or association. ADVERSE EFFECT

85. Physical destruction or demolition of or damage to all or part of the property EXAMPLES OF ADVERSE EFFECT

86. Alteration of a property EXAMPLES OF ADVERSE EFFECT

87. Removal of the property from its historic location EXAMPLES OF ADVERSE EFFECT

88. Change of the character of the property’s use or of physical features within the property's setting that contribute to its historic significance EXAMPLES OF ADVERSE EFFECT

89. Introduction of visual, atmospheric or audible elements that diminish the integrity of the property's significant historic features EXAMPLES OF ADVERSE EFFECT

90. Neglect of a property EXAMPLES OF ADVERSE EFFECT

91. Transfer, lease, or sale of property out of Federal ownership or control without adequate and legally enforceable restrictions or conditions to ensure long-term preservation of the property's historic significance EXAMPLES OF ADVERSE EFFECT

92. RESOLVE ADVERSE EFFECTS

93. *Advisory Council On Historic Preservation, Working with Section 106 Users Guide Section 106 Flow ChartWorking with Section 106Users Guide Section 106 Regulations Flow Chart * Resolve Adverse Effects Avoid or Minimize Memorandum of Agreement?

94. AVOID OR MINIMIZE The agency official consults with the SHPO and other consulting parties, including Indian tribes, to DEVELOP AND EVALUATE ALTERNATIVES OR MODIFICATIONS TO THE UNDERTAKING that could AVOID or MINIMIZE adverse effects on historic properties.

95. MITIGATE The agency official may use standard treatments established by the ACHP under 36 CFR 800.14(d) as a basis for a Memorandum of Agreement to MITIGATE adverse project effects.

96. CONSULTATION IS THE KEY TO SUCCESSFUL SECTION 106 REVIEW

97. SOME ISSUES RESOLVED THROUGH CONSULTATION (a) who are/are not legitimate Consulting Parties; (b) how are the views of the public to be taken into account; (c) what is the correct boundary of an undertaking’s Area of Potential Effects; (d) what is the correct process for using the National Register of Historic Places “Criteria for Evaluation” in identifying and evaluating Historic Properties; (e) what are the proper methods for using the “Criteria of Adverse Effect” found at 36 CFR 800.5 to decide about project effect; (f) what are the accepted methods for examining and evaluating project alternatives intended to avoid, minimize, or mitigate adverse effect; and (g) what are the specific conditions or stipulations used to resolve project adverse effect.

98. THE SECTION 106 CHECKLIST QUESTIONS

99. CAN YOU ANSWER THE SECTION 106 CHECKLIST QUESTIONS? 1.What are the two requirements placed upon Federal agencies by Section 106 of the National Historic Preservation Act 2.What are the four steps in Section 106 review required by 36 CFR Part 800 3.What is an “Undertaking” 4.Who are “Consulting Parties” 5.What is an “Area of Potential Effects” 6.What are “Historic Properties” 7.What is “Project Adverse Effect” 8.How do you “Resolve Adverse Effects”

100. Joseph Y. Garrison, PhD Review and Compliance Coordinator Tennessee Historical Commission 2941 Lebanon Road Nashville, Tennessee 37243-0442 Joseph.Garrison@tn.gov (615)532-1550-103 phone (615)532-1549 fax For more information….

101. END OF PRESENTATION