Dealing With Section 106: The Good, The Bad, and the Ugly

Recap from last time... Section 106 of the NHPA makes the heads of federal agencies responsible for taking into consideration that “undertakings” will not have adverse effects on historic properties.Section 106 of the NHPA makes the heads of federal agencies responsible for taking into consideration that “undertakings” will not have adverse effects on historic properties. Regulations defining the process by which undertakings are considered were promulgated by the ACHP per statute.Regulations defining the process by which undertakings are considered were promulgated by the ACHP per statute. “The Regs” (36 CFR 800) establishes a complex protocol for complying with the Section 106.“The Regs” (36 CFR 800) establishes a complex protocol for complying with the Section 106.

O.K., What is an undertaking? Any federally based (funded, licensed) activity (project, land transfer, lease, etc.) that may destroy, alter, or otherwise impact those values that make an historic property eligible for nomination to the National Register.Any federally based (funded, licensed) activity (project, land transfer, lease, etc.) that may destroy, alter, or otherwise impact those values that make an historic property eligible for nomination to the National Register. Example: Tearing down Independence Hall in Philadelphia would be an adverse effect.Example: Tearing down Independence Hall in Philadelphia would be an adverse effect.

Examples of Undertakings Installation of a new cattle watering trough on BLM land.Installation of a new cattle watering trough on BLM land. Installation of an ATM in a historic building.Installation of an ATM in a historic building. A timber sale on USFS land.A timber sale on USFS land. A DOT highway realignment project.A DOT highway realignment project. A BLM land exchange.A BLM land exchange. The refurbishing of an existing bridge.The refurbishing of an existing bridge. The installation of new camp toilets in a National Park.The installation of new camp toilets in a National Park.

Which of the following is an undertaking? Installing a sprinkler system at Mount Vernon.Installing a sprinkler system at Mount Vernon. Road side weed abatement by Cal-Trans.Road side weed abatement by Cal-Trans. The installation of several cattle guards.The installation of several cattle guards. The installation of a roadside fiber optic line.The installation of a roadside fiber optic line. Sand-blasting the front of an historic building made of marble to clean the surface.Sand-blasting the front of an historic building made of marble to clean the surface. The periodic cleaning out irrigation canals.The periodic cleaning out irrigation canals. Building on an addition to an historic structure.Building on an addition to an historic structure.

How do we know there are historic properties to potentially impact? What is the overall footprint of the proposed undertaking (otherwise known as the Area of Potential Effect, or the APE)?What is the overall footprint of the proposed undertaking (otherwise known as the Area of Potential Effect, or the APE)? Have there been studies previously conducted in this area (background research of SHPO and/or agency files)?Have there been studies previously conducted in this area (background research of SHPO and/or agency files)? What are the potential long-term effects of the undertaking on any possible historic properties?What are the potential long-term effects of the undertaking on any possible historic properties?

The Inventory Start with a record search for background information (may include archives and historical documents).Start with a record search for background information (may include archives and historical documents). Do an on-site, systematic investigation (survey) of the APE.Do an on-site, systematic investigation (survey) of the APE. Record and carefully document any archaeological or historical materials.Record and carefully document any archaeological or historical materials. Prepare a report and site records on the findings, with recommendations.Prepare a report and site records on the findings, with recommendations.

Are your sites historic properties? Are they older than 50 years?Are they older than 50 years? Do they meet one or more of the criteria for National Register properties?Do they meet one or more of the criteria for National Register properties? Do both the Agency and the SHPO concur on the above?Do both the Agency and the SHPO concur on the above?

Determination of Eligibility: Further Assessment Sometimes with archaeological sites, invasive data recovery methods (i.e., test excavations) must be employed to better evaluate eligibility.Sometimes with archaeological sites, invasive data recovery methods (i.e., test excavations) must be employed to better evaluate eligibility. This situation usually arises when an agency is not willing to call a site “potentially” eligible with only limited information.This situation usually arises when an agency is not willing to call a site “potentially” eligible with only limited information.

Assessing Effects Assuming historic properties are identified within the APE, the agency must determine whether or not their undertaking will have no effect, no adverse effect, or an adverse effect on the property.Assuming historic properties are identified within the APE, the agency must determine whether or not their undertaking will have no effect, no adverse effect, or an adverse effect on the property. No effect used to mean what it says, but has now be eliminated from the new Regs. If SHPO concurred, project went forward.No effect used to mean what it says, but has now be eliminated from the new Regs. If SHPO concurred, project went forward.

So what is an adverse effect? Physical destruction or damage to all or part of the property.Physical destruction or damage to all or part of the property. Alteration of a property, including restoration, rehabilitation, repair, maintenance, stabilization, hazardous material remediation and provision of handicap access that is not consistent with the Secretary of the Interior’s Standards (36 CFR Part 68).Alteration of a property, including restoration, rehabilitation, repair, maintenance, stabilization, hazardous material remediation and provision of handicap access that is not consistent with the Secretary of the Interior’s Standards (36 CFR Part 68).

More adverse effects Removal of property from historic location.Removal of property from historic location. Change the character of the property’s use or of physical features within the property’s setting that contribute to its historic siginificance.Change the character of the property’s use or of physical features within the property’s setting that contribute to its historic siginificance. Introduction of visual, atmospheric or audible elements that that diminish the integrity of the property’s significant historic features.Introduction of visual, atmospheric or audible elements that that diminish the integrity of the property’s significant historic features.

And still more... Neglect of a property that causes its deterioration (except when such deterioration is part of the Native American view of what makes the property sacred).Neglect of a property that causes its deterioration (except when such deterioration is part of the Native American view of what makes the property sacred). Transfer, lease or sale of property out of federal ownershipTransfer, lease or sale of property out of federal ownership

No Adverse Effect Undertaking does not be criterion of effect.Undertaking does not be criterion of effect. SHPO and Agency have agreed on measures to address the property in a manner that will mitigate the effects of the proposed undertaking.SHPO and Agency have agreed on measures to address the property in a manner that will mitigate the effects of the proposed undertaking. If any of the consulting parties have problems with the measures referred to above (i.e., Indian tribes), the ACHP may review.If any of the consulting parties have problems with the measures referred to above (i.e., Indian tribes), the ACHP may review.

Resolving Adverse Effects: The Memorandum of Agreement If consultation is terminated, then the ACHP will issue a comment (which they often do even if consultation is NOT terminated!).If consultation is terminated, then the ACHP will issue a comment (which they often do even if consultation is NOT terminated!). Consulting parties (SHPO, Agencies, Tribes, “Interested public parties”) confer and decide what steps need to be taken to address adverse effects.Consulting parties (SHPO, Agencies, Tribes, “Interested public parties”) confer and decide what steps need to be taken to address adverse effects. The consultation process is often complicated.The consultation process is often complicated.