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.

36 CFR Part 800 Protection of Historic Properties Section 106 36 CFR Part 800 Protection of Historic Properties

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.”

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

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).

Participants in Sec. 106 Process Federal agencies Advisory Council on Historic Preservation Consulting parties Public 800.1 Purposes 800.2 Participants in the Section 106 process.

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.

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.

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.

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

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 800.2(c)(1)(i) Participants in the Section 106 process: Consulting parties: State Historic Preservation Officer 800.3(c)(2) Initiation of the Section 106 process: Identify the appropriate SHPO and/or THPO: Undertakings involving more than one state

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.

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.

Flowchart

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.

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 800.3(a) Initiation of the Section 106 process: Establish undertaking 800.9(a) Council review of Section 106 compliance: Assessment of Agency Official compliance for individual undertakings

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

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.

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.

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))

Step I: 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 Public involve-ment Undertaking Might Affect Historic Properties

Step II: Identify Historic Properties Determine scope of efforts Identify historic properties Evaluate historic significance (National Register status)

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

Area of Potential Effects Definition 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.” 800.16(d) Definitions: Area of potential effects 800.4(a) Identification of historic properties: Determine scope of identification efforts 800.2(c)(3)(iv) Participants in the Section 106 process: Consulting Parties:Indian Tribes and Native Hawaiian organizations

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) 800.4(b)(1) Identification of historic properties: Identify historic properties: Level of effort 800.11(c) Documentation standards: Confidentiality

Evaluation of Significance Is the property already listed in the National Register of Historic Places? If not, apply National Register criteria to determine eligibility. Have to have consensus determination of eligibility. Properties have to have integrity to be eligible. 800.4(c)(1) Identification of historic properties: Evaluate historic significance: Apply National Register criteria

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)

Examples of Properties on the National Register of Historic Places Ohio Stadium, Columbus Criterion A and C Ohio Theatre, Columbus

Ulysses S. Grant’s boyhood home, Brown County 01 Ulysses S. Grant’s boyhood home, Brown County Criterion B German Village Historic district, Columbus Criterion C

Agler-LaFollette House, Columbus Criterion C Shrum (Campbell) Mound, Columbus Criterion D

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

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

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.

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.

Conclusion of Step II After historic properties have been identified: ODOT & FHWA apply definition of effect: “alteration to the characteristics of a historic property qualifying it for inclusion in or eligibility for the National Register” ODOT makes a formal finding of either “no historic properties affected” or “historic properties affected” 800.4(d)(1) Identification of historic properties: Results of identification and evaluation: No historic properties affected 800.4(d)(2) Identification of historic properties: Results of identification and evaluation: Historic properties affected

“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 800.4(d)(1) Identification of historic properties: Results of identification and evaluation: No historic properties affected

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 800.4(d)(1) Identification of historic properties: Results of identification and evaluation: No historic properties affected 800.2(b)(1) Participants in the Section 106 process: Council: Council entry into the Section 106 process

Step II: Identify Historic Properties Determine scope of efforts Identify historic properties Evaluate historic significance No Historic Properties Affected Public involve-ment Historic Properties Are Affected

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

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 800.5(a)(1) Assessment of adverse effects: Apply criteria of adverse effect: Criteria of adverse effect

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 800.5(a)(2) Apply criteria of adverse effect: Examples of adverse effects

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.

Step III: Assess Adverse Effects Apply criteria of adverse effect No Historic Properties Adversely Affected Public involve-ment Historic Properties Are Adversely Affected

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

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 800.6(a)(1) & (1)(i) Resolution of adverse effects: Continue consultation: Notify the Council and determine Council participation 800.11(e) Documentation standards: Finding of no adverse effect or adverse effect

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 800.6(a)(1)(i) Resolution of adverse effects: Continue consultation: Notify the Council and determine Council participation

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 800.6(a)(1)(iii) Resolution of adverse effects: Continue consultation: Notify the Council and determine Council participation Appendix A: Criteria for Council Involvement in Reviewing Individual Section 106 Cases 800.2(b)(1) Participants in the Section 106 process: Council: Council entry into the Section 106 process

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) 800.6(a)(4) Resolution of adverse effects: Continue consultation: Involve the public 800.6(a)(5) Resolution of adverse effects: Restrictions on disclosure of information 800.11(c) Documentation standards: Confidentiality Section 304 National Historic Preservation Act

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. 800.6(b)(1)(iv) Resolution of adverse effect: Resolution without the Council 800.11(f) Documentation standards: Memorandum of Agreement 800.9(d) Council review of Section 106 compliance: Evaluation of Section 106 operations: Improving the operation of Section 106

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.

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 Signatories must sign the MOA (exception for SHPO if ACHP agrees) Invited usually sign, and Concurring parties may sign. Invited and Concurring signatures are not required to proceed with the agreement. I

Step IV: Resolve Adverse Effects Memorandum of Agreement Continue consultation Memorandum of Agreement Public involve-ment Failure To Agree Council Comment

Failure to Resolve Adverse 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.) 800.6(b)(1)(v) Resolution of adverse effect: Resolve adverse effect: Resolution without the Council 800.7(a) Failure to resolve adverse effects: Termination of consultation

Federal program alternatives Programmatic agreements Alternative procedures Standard treatments Exemptions Program comments Using NEPA process in lieu of standard 106 process

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.

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.

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.