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ODOT’s Section 106 Training This class does not include a detailed discussion of

ODOT’s Preliminary Development Process and how it relates to cultural resources.

It is a Section 106 process overview and a brief NR eligibility overview.

This class is a consultant prequalification requirement. The CR Manual (ODOT 2004) includes information on

ODOT’s approach and overall direction regarding cultural resources.

When you are notified that you have successfully completed this class, you may submit your prequalification application to ODOT’s Office of Consultant Services.

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Section 106

36 CFR Part 800

Protection of Historic Properties

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What is Section 106?Section 106 of the National Historic Preservation Act(16 U.S.C. 470f) says . . .

“The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under Title II of this Act a reasonable opportunity to comment with regard to such undertaking.”

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Section 106 Regulations

Regulations at 36 CFR Part 800 provide details on how agencies comply with Section 106

There have been minor changes to regulations that took effect in 1999

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ODOT’s Section 106 Programmatic Agreement Executed July 17, 2006 Signed by ACHP, FHWA, SHPO & ODOT. Broad responsibilities delegated to ODOT, which

functions on behalf of FHWA. It is ODOT’s Section 106 Process. All Section 106 reviews must come to the Office of

Environmental Services for review and processing (except CE Exempt actions).

SHPO receives nearly every finding issued by ODOT. This PA supersedes the minor projects MOU that is

in the Cultural Resources Manual (2004).

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Participants in Sec. 106 Process

• Federal agencies

• Advisory Council on Historic Preservation

• Consulting parties

• Public

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Participants: Federal agencies Federal agency is responsible for

complying with Section 106 and making all decisions required for compliance.

Federal agency can authorize applicants for Federal assistance, licenses, permits, or approvals to initiate process, but agency is still legally responsible for all findings and determinations.

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Participants: Federal agencies

The definition of “Federal agency” includes local and state governments that have been delegated responsibility for compliance with Section 106.

Some state agencies (such as ODOT) have received such responsibility via programmatic agreements.

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Participants: Advisory Council on Historic Preservation

It is an independent Federal agency composed of President-appointed council and professional staff.

Issues regulations, guidance, and advice on Section 106 compliance and oversees Section 106 process.

Consults with and provides comments to Federal agencies on the effect of programs and undertakings on historic properties.

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Participants: Consulting parties State Historic Preservation Office Local governments and applicants for federal

assistance, permits, licenses, and approval Federally recognized Native American Indian tribes and

Native Hawaiian organizations Individuals/organizations with demonstrated legal,

economic, or preservation interest who ask to participate, as agreed to by FHWA, ODOT, SHPO, and Council

Other parties agreed to by FHWA, ODOT, SHPO, and Council

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Consulting Parties: State Historic Preservation Officer SHPO advises and assists Federal agencies

SHPO advises and assists other agencies that have delegated authority, such as ODOT.

Agreement between FHWA/ODOT and SHPO can, in many cases, conclude process

When multiple states involved, SHPOs may designate a lead SHPO

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Participants: The public Public participation is important.

Basic requirement of Sec. 106 is to provide information on effects to historic properties and seek public input.

Public views are “essential to informed Federal decision making.”

Agencies may use established public involvement procedures where appropriate (e.g, NEPA public involvement process).

Public may provide views on their own initiative.

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Documentation

Agency must ensure that all determinations, findings, and agreements reached through the Section 106 process are supported by adequate documentation to enable anyone, including the public, to understand the basis of all decisions.

36 CFR Section 800.11 provides details on documentation standards and guidance on the adequacy of documentation.

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Ide nt ify hist oric prope rt ie s

D e t e rm in e s c o p e o f e ffo rt sId e n t ify h is t o ric p ro p e rt ie s

Ev a lu a t e h is t o ric s ig n ific a n c e

In it ia t e p roc e ss

Es t a b lis h u n d e rt a k in gP la n t o in v o lv e t h e p u b lic

In d e n t ify o t h e r c o n s u lt in g p a rt ie s

Undertaking may affect his toric propert ies

Asse ss ad v e rse e f f e c t s

Apply c r iter ia of advers e effec t

Re solv e ad v e rse e f f e c t s

Continue c ons ultation

His toric propert ies are affected

His toric propert ies are advers ely affected

Failure to agreeCouncil comment

Memorandum of agreement

No his toric propert iesadvers ely affected

No undertaking/No potential tocaus e effects

No his toric propert iesaffected

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Step I:Initiate the Section 106 process

Establish undertaking

Coordinate with other reviews

Identify consulting parties

Plan to involve the public

FHWA & ODOT use the NEPA public involvement

process to achieve this Sec. 106 goal.

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Establish Undertaking

FHWA & ODOT must determine:– whether its action meets the definition of

undertaking in the National Historic Preservation Act

– And, if so, whether it is a type of activity that has potential to affect historic properties

This is a unilateral agency determination, but Council may issue advisory opinion

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UndertakingDefinition:

“project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; those requiring a Federal permit, license or approval; and those subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency.” (36 CFR Section 800.16(y))

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Undertaking (cont.)

Remember that the definition of an undertaking is necessarily broad.

It is NOT determined solely on funding. A 100% State funded project that requires a

federal permit (such as a waterway permit from the Army Corps Of Engineers), or requires a federal agency approval or license would still be subject to Sec. 106 review and coordination under 36 CFR Part 800.

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Conclusion of Step I

If no undertaking or if undertaking has no potential to cause effects to historic properties, the Sec. 106 process is complete.

Document this finding to respond to questions or inquiries by public or other parties.

If undertaking could cause effects, go to next step.

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Historic Property

Definition: “…means any prehistoric or historic district, site,

building, structure, or object included in, or eligible for inclusion in, the National Register of Historic Places maintained by the Secretary of Interior. This term includes artifacts, records, and remains that are related to and located within such properties. The term includes properties of traditional religious and cultural importance to an Indian tribe …and that meet the National Register criteria.” (36 CFR Section 800.16(l)(1))

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Step I: Initiate Section 106

ProcessEstablish undertaking

Identify appropriate SHPO/THPO

Plan to involve the public

Identify other consulting parties

No Undertaking/No Potential

To Cause Effects

Public involve-

ment

Undertaking Might Affect Historic Properties

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Step II: Identify Historic Properties

Determine scope of efforts

Identify historic properties

Evaluate historic significance (National Register status)

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Determining scope of effort

FHWA & ODOT consult with SHPO to– determine and document the area of

potential effects– review existing information about

historic properties– seek information about parties likely

to have knowledge of or concerns about the area

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Area of Potential EffectsDefinition from 36 CFR Section 800.16(d):

“geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist.”

• The APE will be informally based on the size, scope, context, and visual intrusiveness of a project.

• In ODOT’s process, “APE” basically equates with “Study Area.”

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Flexibility in Identification Effort FHWA & ODOT efforts must consider:

– Magnitude and nature of undertaking

– Degree of Federal involvement

– Past studies

– Nature and extent of potential effects

– Likely nature and location of historic properties

– Applicable standards and guidelines

– Confidentiality concerns (archaeology sites)

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Evaluation of Significance

Is the property already listed in the National Register of Historic Places?

If not, apply National Register criteria to determine eligibility.

Have to have consensus determination of eligibility.

Properties have to have integrity to be eligible.

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National Register of Historic Places It is a listing of resources identified as worthy

of recognition and preservation.

It has a nomination process distinct from 106 evaluation decision and process

Threshold tests: Age and Integrity

Four Eligibility Criteria: significance for

A: events in history

B: significant person or group of people

C: architecture, construction, or aesthetic

qualities

D: archaeology (ability to yield important

information)

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Examples of Properties on the National Register of Historic Places

Ohio Stadium, Columbus– Criterion A and C

Ohio Theatre, Columbus– Criterion A and C

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Ulysses S. Grant’s boyhood home, Brown County– Criterion B

German Village Historic district, Columbus– Criterion C

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Agler-LaFollette House, Columbus– Criterion C

Shrum (Campbell) Mound, Columbus– Criterion D

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Other NRHP sites

Other properties can be included on the NRHP besides buildings and archaeological sites.

– Eden Park Water Tower, Cincinnati– Inverness Golf Course, Toledo– G. A. Boeckling paddlewheel steam boat– Objects like old National Road mile markers– First concrete street in the nation in Bellefontaine– Cincinnati gas street lamps – Bridges, train stations, factories, lighthouses, cemeteries

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NRHP Definition of Integrity It is the authenticity of a property’s historic

identity, based on surviving physical characteristics.

It is a composite of seven qualities: * Location * Design * Setting * Materials * Workmanship * Feeling * Association

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NRHP Integrity (cont.) Integrity enables a property to illustrate significant

aspects of its past. A property must resemble its historic appearance,

retaining physical materials, design features & aspects of construction.

For archaeological resources, its based on the degree to which remaining evidence can provide important information.

All seven do not need to be present for eligibility as long as the overall sense of time & place is evident.

A resource can be important to a community, but unless it has a certain amount of integrity, it CANNOT be considered eligible for the NRHP.

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NRHP Property Boundaries

NR boundaries are needed to determine EFFECT in Sec. 106, not ELIGIBILITY!

We may never need to have a boundary determination for an eligible property.

Boundaries are determined based on what makes the property eligible under the NRHP criteria.

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Conclusion of Step II

After historic properties have been identified:

ODOT & FHWA apply definition of effect: “alteration to the characteristics of a historic property qualifying it for inclusion in or eligibility for the National Register”

ODOT makes a formal finding of either “no historic properties affected” or “historic properties affected”

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“No Historic Properties Affected” Finding Appropriate when:

– ODOT and FHWA have determined that no historic properties are present in the APE; or

– there are historic properties present but the undertaking will not have any effect on them

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Review of “No Historic Properties Affected” Finding ODOT must provide documentation to

the SHPO, notify consulting parties, and make documentation available to the public.

SHPO may disagree with ODOT and FWHA, triggering next step

If no objection, Section 106 compliance is complete

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Step II: Identify Historic

Properties

Determine scope of efforts

Identify historic properties

Evaluate historic significance

Historic Properties Are Affected

No Historic

Properties Affected

Public involve-

ment

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Step III: Assess Adverse Effects

If historic properties are affected:

-FHWA and ODOT notify consulting parties and invite their views

-ODOT applies criteria of adverse effect and notifies SHPO

- ODOT and FHWA must consider views provided by other consulting parties & public

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Criteria of Adverse Effect

Adverse effect occurs when effect of undertaking causes the integrity of a historic property to be diminished

ODOT and FHWA must:– consider both direct and indirect effects – consider reasonably foreseeable effects:

cumulative, later in time, or at a distance– consider all qualifying characteristics of a

property

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Examples of Adverse Effect physical destruction or damage

alteration not consistent with the Secretary of the Interior’s Standards for Rehabilitation

relocation

change of use or change to physical features of a property’s setting

visual, atmospheric, or audible intrusions

neglect resulting in deterioration

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Conclusion of Step III ODOT can propose a “No Adverse Effect”

finding and notify consulting parties. If no objection by SHPO, Sec. 106 is complete.

SHPO can respond with a request for changes to the undertaking in order to avoid an adverse effect. If ODOT and FHWA agree, Sec. 106 is complete.

If SHPO or another party disagrees, FHWA either resolves or asks the Council to review.

ODOT and FHWA must keep record of finding.

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Step III: Assess

Adverse Effects

Apply criteria of adverse effect

Historic Properties Are Adversely Affected

No Historic Properties Adversely Affected

Public involve-

ment

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Step IV: Resolve adverse effects

ODOT can propose an “adverse effect” finding to SHPO

ODOT and FHWA continue consultation with SHPO and other consulting parties to explore alternatives that may avoid, minimize, and/or mitigate adverse effects

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Agency Notification to Council

For all adverse effect findings, the Federal agency must notify the Council by providing Documentation for Consultation given to consulting parties, which includes description of:– undertaking and APE– identification steps and affected historic

properties– project effects and why the criteria of

adverse effect are applicable– views of consulting parties and public

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Agency Invitation to the Council to Participate

The Federal agency notification to the Council must include an invitation to participate in consultation when:

– the Agency wants Council involvement

– a National Historic Landmark is adversely affected

– a Programmatic Agreement is proposed

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Council Decision to Participate in Resolution of Adverse Effects Council has 15 days to respond when notified

of project by the Federal agency or requested to enter consultation by another party

When entering process,Council now must:– document that criteria for Council

involvement are met– advise the Federal agency or agency with

delegated authority, such as ODOT

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Public Participation During Resolution of Adverse Effects

FHWA and ODOT must seek views of the public

To resolve adverse effects, FHWA’s and ODOT’s public involvement efforts have to take into account:– the magnitude of undertaking and– the nature of its effects upon historic properties– the likely effects on historic properties– public participation efforts at earlier steps– confidentiality concerns (archaeology sites)

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Conclusion of Step IV If FHWA, ODOT, SHPO and Council agree on how

adverse effects will be resolved, they execute a Memorandum of Agreement.

The MOA is prepared and it defines the steps taken to mitigate the adverse effect.

When the Council does not participate in consultation, the Federal agency must submit a copy of executed MOA to the Council with appropriate documentation to finish Sec. 106.

Federal agency must ensure the undertaking is carried out in accordance with the MOA.

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Memorandum of Agreement

Execution of MOA is required among FHWA, SHPO, ODOT, and local agency with legal involvement, such as a City or County.

Additional participants in MOA could be a local historical society, Federally recognized Indian tribe, community organization, or private citizen.

All are represented in the MOA that they have participated in the MOA consultation process.

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Purposes of the MOA

To specify the mitigation or alternatives agreed to by the consulting parties.

To identify who is responsible for carrying out the specified measures.

To render Council comment (if necessary). To serve as acknowledgement by the

signatories that, in their collective view, the Federal agency has taken into account the effects of the undertaking on historic properties.

Who signs the agreement?

Signatories FHWA SHPO and/or THPO (on tribal land) ACHP (if participating)

Invited signatories DOT and others who are assigned substantial MOA tasks

Concurring parties Persons invited by FHWA to sign in concurrence (i.e., the

consulting parties) Agreement can proceed without their signature

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Failure To Agree

Memorandum of Agreement

Council Comment

Public involve-

ment

Step IV: Resolve Adverse Effects

Continue consultation

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Failure to ResolveAdverse Effects

If agency and SHPO cannot agree, Council must be invited to participate

Council may consult or choose to comment

If further consultation not productive, Federal agency, SHPO, or Council can terminate

Federal agency MAY ultimately decide to proceed without SHPO and/or Council agreement (this is not common.)

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Federal program alternatives

Programmatic agreements

Alternative procedures

Standard treatments

Exemptions

Program comments Using NEPA process in lieu of standard 106

process

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Principles To Remember

Most projects do not involve historic properties.

The Federal agency is ultimately responsible for all decisions, including how the process begins and ends.

Everything is documented. Notify the public and seek comment when

required. Properties determined eligible for the NRHP

receive the same level of consideration as those already listed in the NRHP.

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More Principles To Remember

Most cases can be resolved at the state level between FHWA/ODOT and SHPO.

The process has no predetermined outcome. Something always gets done. The process is based on good faith effort. Section 106 of the NHPA does NOT require

preservation of historic and/or archaeological resources, only that they be considered.

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Additional Information:

ODOT/OES website: http://www.dot.state.oh.us/Divisions/TransSysDev/Environment/Pages/default.aspx

*Call the Cultural Resource Section staff (contact information located on our website and in handouts)

*There is information on OES’ website and in the Cultural Resources Manual regarding report requirements, agreements, publications, historic bridges, general guidance and related links.