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

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.
• 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.
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.
• 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 an ATM in a historic building.
• A timber sale on USFS land.
• A DOT highway realignment project.
• A BLM land exchange.
• The refurbishing of an existing bridge.
• The installation of new camp toilets in a National Park.
Which of the following is an
undertaking?
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Installing a sprinkler system at Mount Vernon.
Road side weed abatement by Cal-Trans.
The installation of several cattle guards.
The installation of a roadside fiber optic line.
Sand-blasting the front of an historic building
made of marble to clean the surface.
• The periodic cleaning out irrigation canals.
• 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)?
• 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?
The Inventory
• Start with a record search for background
information (may include archives and historical
documents).
• Do an on-site, systematic investigation (survey)
of the APE.
• Record and carefully document any
archaeological or historical materials.
• Prepare a report and site records on the
findings, with recommendations.
Are your sites historic properties?
• Are they older than 50
years?
• Do they meet one or
more of the criteria for
National Register
properties?
• 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.
• 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.
• 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.
• 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.
• 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.
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).
• Transfer, lease or sale of property out of federal
ownership
No Adverse 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.
• 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!).
• 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.