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I CONCUR CONSULTING WITH THE SHPO UNDER SECTION

106

Kathleen Forrest, Historian California Office of Historic Preservation

California Preservation Foundation May 14, 2015

WHY 106? • Part of the National Historic Preservation Act,

implementing regulations at 36 CFR § 800 • Section 106 consultation is required when a

project is: – A Federal project – Requires a Federal permit, or – Uses Federal dollars

• Purpose to assess the effects of the undertaking (project) on historic properties.

WHY 106? Advisory Council on Historic Preservation

• The Advisory Council on Historic Preservation (ACHP)

is an independent federal agency that promotes the preservation, enhancement, and productive use of our nation's historic resources, and advises the President and Congress on national historic preservation policy.

• 36 CFR § 800 are the ACHP’s regulations for the implementation of Section 106

• One purpose of consultation is to provide the ACHP a reasonable opportunity to comment on an undertaking

WHY 106? Historic Properties

A historic property is any “prehistoric or

historic district, site, building, structure, or object included in, or eligible for inclusion on,

the National Register of Historic Places, including artifacts, records, and material

remains related to such a property or resource.”

WHAT IS CONSULTATION? The process of seeking, discussing, and considering the views of other participants and seeking consensus with them regarding matters arising in the Section 106 process.

WHO CONSULTS? • Federal Agency drives the

consultation bus • Can formally delegate authority to

another party, except for government-to-government consultation

• Required parties include the SHPO, THPOs, local governments, applicants

• Other parties include local, state and federal agencies, Native American groups, and other interested parties

• The public

WHO CONSULTS? Roles in Section 106 – Federal Agency

Determine if there is an undertaking

Consult with interested parties

Define area of potential effects (APE)

Identify historic properties Assess effect(s) Consult with SHPO

WHO CONSULTS? SHPO’s Role in Section 106

• Mandatory consulting party

• Peer review • Liaison • Guidance on

Section 106

WHO CONSULTS? SHPO - What we do not do

• Research, identify historic properties, or determine project effects

• Have a complete list of all historic properties within the State.

• Maintain an archive • Conduct site visits for every

project. • Issue permits or clearance • Conduct Native American or

government-government consultation

• Can not stop projects.

WHEN? WHEN SHOULD CONSULTATION BEGIN?

• Ideally early in the planning process when the most alternatives are on the table

• At the very latest, the “identification phase” of the Section 106 process.

• This gives the public, the tribes, and other interested parties the opportunity to notify the federal agency of any potential historic properties within the project area (that may not have been identified otherwise) and initiates the discussion of avoidance measures and/or resolution of adverse effects.

CONSULT EARLY AND OFTEN!

WHEN? WHEN SHOULD CONSULTATION

BEGIN?

• Don’t need to consult if Agency determines that there’s no potential to affect historic properties CONSULT EARLY AND

OFTEN!

SECTION 106 REVIEW PROCESS Define the undertaking

Define the Area of Potential Effect (APE)

Identify consulting parties & initiate consultation

Identify potential historic properties within APE

Evaluate cultural resources for NRHP eligibility

Assess the potential to affect eligible historic properties

Determine the finding of effect for the undertaking

Resolution of Effects

SECTION 106 REVIEW PROCESS

Section 106 Checklist Available on OHP’s Website, on the Section 106 page

http://ohp.parks.ca.gov/?page_id=1071

Two versions

• The two-page version of the checklist provides a succinct listing of all required information, with minimal explanation.

• The annotated version of the checklist is longer and provides detailed explanations of required information.

DEFINE THE UNDERTAKING Per the definition at 36 CFR 800.16(y), the

UNDERTAKING is: “A 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; and those requiring a federal permit, license, or approval.”

STEPS IN THE PROCESS

Step 3: Assessment of Adverse Effects

Step 4: Resolution of Effects

The way the ACHP thinks this happens is that a letter comes for EACH INDIVIDUAL STEP in the

process

Step 1: Initiate Consultation Step 2: Identification of Historic

Properties

STEP 1: INITIATION Initiate by sending SHPO a letter that includes the basics:

– A complete project description – Which regulatory process you’re

consulting under – Identify Agency(s) involved – Contact info – If you’re consulting on the

agency’s behalf, provide delegation in writing

– Identification of tribes and other interested parties

– How the public will be involved – What you’re asking for: just

initiating, APE comments, etc.

STEP 1: INITIATION Remember: The consultation is primarily between the Federal Agency and the other consulting parties. Consultation needs to be done in coordination with all parties. SHPO’s Response to Initiation • A letter back. The content of

that letter is dependent on what the initiation letter requested.

STEP 2: IDENTIFICATION DEFINE THE APE

According to 36 CFR 800.16(d), the

AREA OF POTENTIAL EFFECTS (APE) is:

“The 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 area of potential effects is influenced by the scale and nature of an undertaking and may be different for different kinds of

effects caused by the undertaking.”

STEP 2: IDENTIFICATION

APE: What to consider • Direct effects • Indirect effects

– Visual effects – Audible effects – Socio-cultural effects

• Cumulative Effects

STEP 2: IDENTIFICATION What the SHPO needs

• Complete description of the undertaking – Will there be ground disturbance? – Physical parameters – height, depth, width,

length • How did you choose your boundaries?

– Provide a narrative description of both the APE boundaries and why it was defined that way

STEP 2: IDENTIFICATION APE

What else should be included in the APE?

• Dredging and borrow areas • Staging areas • Access routes • Entire boundary of any historic properties that are

within the APE, as feasible. • Mitigation parcels

STEP 2: IDENTIFICATION APE Support Documents

• Maps! Maps! Maps! • And Photos! Photos! More

Photos! • Drawings • Narrative Description of

APE—Horizontal and Vertical extents

• Land use history • Specifics of ground

disturbance

STEP 2: IDENTIFICATION

Project Location Map

STEP 2: IDENTIFICATION

Project Vicinity

STEP 2: IDENTIFICATION

Cluttered APE

STEP 2: IDENTIFICATION

Extends forever APE

STEP 2: IDENTIFICATION

“Revised” extends forever APE

STEP 2: IDENTIFICATION

Large project APE

STEP 2: IDENTIFICATION

Linear project APE

STEP 2: IDENTIFICATION SHPO Response to APE submission • Letter responding to your request for

comments on the APE • Per 36 CFR § 800.4(a) the SHPO

offers comments on the Agency’s APE, rather than formal concurrence

STEP 2: IDENTIFICATION Historic Properties

According to 36 CFR 800.4, Identification of historic properties within the APE consists of the following

steps:

• Review existing background information (records search)

• Seek new information (survey) • Gather information from Indian tribes and

interested parties (consultation)

STEP 2: IDENTIFICATION Evaluation of Historic Properties

All resources within the APE must be evaluated by applying the criteria of eligibility to the resource, to determine if they are eligible for the NRHP. (A) Associated with events that have made a significant contribution to the broad patterns of our history; or (B) Associated with the lives of persons significant in our past; or

(C) Embody distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or (D) Have yielded, or may be likely to yield, information important in prehistory or history.

STEP 2: IDENTIFICATION REASONABLE & GOOD FAITH EFFORT

• Things to take into account: – Past planning, research and studies – Magnitude and nature of the project – Degree of federal involvement – Potential for effect – Likelihood for historic properties

STEP 2: IDENTIFICATION WHAT THE SHPO NEEDS

• Photographs • Construction dates • CHRIS record search (summary) • Cultural Resource Reports/Surveys • Drawings • DPR 523s • Maps

STEP 2: IDENTIFICATION Evaluation of Historic Properties

• Ideally submit draft reports at each stage—draft inventory reports, then a draft evaluation report

• The SHPO consults on the identification efforts, does not provide formal concurrence until determinations of eligibility

• Tell the reader how you arrived at your conclusions for each criteria

• Agency makes determination, consultants make recommendations

STEP 2: IDENTIFICATION Tips for Success

• Have the appropriate professional (see the SOI’s Professional Qualifications) perform the work! (“Feature” is an archaeological term…or a major motion picture)

• Records search, not more than 2 years old. Include dates. • Fully explain survey methodology. Surveys have to include

areas surveyed, transect spacing, surface visibility. Provide dates of pedestrian survey, etc.

• If using existing survey, have to explain why the existing data has not changed

• If no information out there, please say so. Tell us where you looked

STEP 2: IDENTIFICATION Tips for Success

• Description of consultation with Native Americans, other interested parties—provide documentation, including the letters and any follow up. Provide dates!

• If consulting under a MOA or PA, check that document for any special requirements

• Evaluate under all 4 criteria for Section 106 • Ultimately, demonstrate how the conclusion was

reached—can’t just say eligible or not eligible.

STEP 2: IDENTIFICATION Historic Property Evaluations

SHPO Response • Comments on the adequacy of identification efforts • Concurrence or comments on the eligibility determinations

STEP 3: ASSESSMENT OF EFFECTS 1) There are no historic properties present in APE - OR - there are historic properties

present but the undertaking will have no effect upon them

No historic properties affected

2) If there are historic properties that may be affected by the undertaking Historic properties affected Apply the criteria of adverse effect:

i. Physical destruction ii. Alteration iii. Removal iv. Change of character, use, features v. Neglect vi. Transfer, lease or sale

STEP 3: ASSESSMENT OF EFFECTS

After applying the criteria of adverse effect, there are two possible findings of effect:

a) Adverse effect applies when the undertaking may directly or indirectly alter any of the characteristics of a historic property that qualify the property for inclusion in the NRHP in a manner that would diminish the integrity of the property’s location, design, feeling, or association.

b) No adverse effect applies when the undertaking will have an affect, but the effects do not meet the criteria of adverse effect or the undertaking is modified or conditions are imposed to ensure avoidance of adverse effects.

A resource may be assumed eligible for the NRHP without evaluating it if the undertaking will result in no adverse effect. However, a resource may not be assumed ineligible if the undertaking has the potential to affect it.

STEP 3: ASSESSMENT OF EFFECTS WHAT THE SHPO NEEDS

• Narrative – Describe effects – Reasoning behind the finding of effect

• Alternatives • Supporting documentation

– Specifications – Photo simulations – Maps – Drawings

STEP 3: ASSESSMENT OF EFFECTS SHPO Response • Another letter! Concurring with or

commenting on the assessment of effects

• If concurrence is reached on no adverse effect, you’re done!

• If there’s an adverse effect….move

to the next step in the process

STEP 4: RESOLUTION OF EFFECTS Memorandum of Agreement (MOA)

– Signatories – Federal Agency, SHPO, ACHP, anyone assigned a responsibility

– Concurring parties – local government, tribes

– Outlines terms and conditions

• Agency’s responsibility to draft • No regulatory timeframe for negotiation

of agreement docs • 6 months to 1 year for standard

agreement document

PROGRAMMATIC AGREEMENTS

• Alternative Process for satisfying Section 106 requirements • Still have to do all the steps • Allows Agency to phase the steps • 1-2 year timeframe standard for a process PA

• ACHP provides guidance on agreement documents:

http://www.achp.gov/agreementdocguidance.html

Office Facts • Received 4,920 submittals for 3,856

projects in 2014 • 10 Section 106 reviewers • 30 day timeframe for review for each

step, even if you combine steps • Collapsing consultation per 800.3(g)—

it’s a request, and is at the discretion of the SHPO

• Staff assigned by Agency. Staff contacts:

http://ohp.parks.ca.gov/pages/1071/files/106%20review%20ohp%209-2014.pdf

Thank You! Contact Information:

Kathleen Forrest, State Historian II California Office of Historic Preservation kathleen.forrest@parks.ca.gov (916)445-7022 www.ohp.parks.ca.gov