The Section 106 Review Process: Introduction and Overview

Charles S. Wallis, Jr.

State Historic Preservation Office(a division of the Oklahoma Historical Society)

Historical Archeologist &

Section 106 Coordinator

National Historic Preservation Act

Es t abl i s hed Fed e r a l pol i cy t o Foster p roductiv e harmon y between modern so ciety and h istoric resourcesProv ide preservatio n leadershipAdminister historic reso urces in spirit o f stewardshipAssist preserv ation efforts o f State and lo cal govern ment, tribes and private sector

• 1)Established Federal policy to:

–Foster productive harmony between modern society and historic resources

–Provide preservation leadership

–Administer historic resources in spirit of stewardship

–Assist preservation efforts of State and local government, tribes and private sector

NHPA cont.

• 2) Authorized the National Register of Historic Places (Section 101)– Administered by the Keeper of the National Register – Office based out of Washington DC

• 3) Established the Advisory Council on Historic Preservation (Section 201)– Based out of Washington DC

Intent of the NHPA

• “The historical and cultural foundation of the Nation should be preserved as a living part of our community life and development in order to give a sense of orientation to the American people.” [16 U.S.C. 470b(2)]

Intent cont.• Sought to ensure that impacts of growth and

development are considered in the planning and execution of Federal projects and programs

• Reflected the perception throughout the country that through modern development the people were losing historic properties that:– were treasured– defined the character of our communities and– expressed our cultural roots.

National Historic Preservation Act of 1966, as amended

• 1992 - more involvement with Tribes

• 2001 - more responsibility for SHPOs to work directly with agencies

• 2004 - ACHP can initiate PAs with federal agencies without waiting for agency to act on their own initiative

Section 106 implemented by NHPA and the Advisory Council on Historic

Preservation's guidelines

• Definition of “historic”: A property listed on, or eligible for listing in the National Register of Historic Places– versus historic in the context of Historic

Period (e.g. Archeological Site)

Tern applies to both prehistoric and historic period sites and properties

Section 106• 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 such 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. [16 U.S.C. 470f]

Advisory Council on Historic Preservation

• Independent Federal agency created by NHPA• Advises President and Congress on historic

preservation matters• Oversees Section 106 process• Reviews Federal agency historic preservation

programs and policies• Provides & encourages education & training• Encourages public interest an participation in

preservation

Council Role in Section 106 Review

Council participates in reviewTo resolve disputes

When necessary, to ensure purposes of Section 106 and NHPA are met

Short of formal participation mayProvide advice or guidance upon request

Provide an advisory opinion on agency’s compliance

Criteria for Council Involvement in Project Review

• Council is likely to enter the process if there are:– Substantial impacts on important properties– Important questions of policy or interpretation– Procedural problems– Issues of concern to Indian tribes or native Hawaiian

organizations

Council Members (n=23)• Four members of the general public* (including

the Chairman)• Four historic preservation experts*• One member of an Indian tribe or Native

Hawaiian organization*• Secretary of the Interior*• Secretary of Agriculture*• Architect of the Capitol*• Seven Federal agency heads*• One governor* and one mayor*• President, National Conference of SHPOs• Chairman, National Trust for Historic Preservation

*appointed by the President

The Council’s Regulations (36 CFR Part 800)

• Most recent edition effective Aug. 5, 2004

• Establishes the process for complying with Section 106

• Grounded in consultation among stakeholders to resolve conflicts

• Ultimate enforcement through citizen litigation

Definition of Undertaking

• Project, activity, or program under direct or indirect jurisdiction of a Federal agency

• Includes activities that

– Are carried out by or on behalf of the agency

– Receive Federal funds

– Require a Federal permit, license or approval

Establish Undertaking

• Agency must determine– Whether its action meets the definition of

undertaking– If so, whether it is a a type of activity

with the potential to affect historic properties

– If no undertaking or potential to cause effects, no further action required

Considerations

As agencies plan projects, they must consider whether or not the projects will affect archeological and historic properties which are listed on or eligible for the National Register of Historic Places. These properties can include buildings, structures, sites, districts, objects, and landscapes.

Federal Agency Responsibilities Under NHPA

• STEWARDSHIP: Section 110– Requires creation of comprehensive Federal

agency historic preservation programs– Mandates consideration of historic properties

and affirmative stewardship of federally owned historic properties

• ACCOUNTABILITY: Section 106– Creates agency accountability for effects of

Federal undertakings on historic properties

Section 106 Review (Is a Four Step Process)

• 1) Initiation of the process (800.3)– Level of consultation should be appropriate to

scale and nature of the undertaking– Initiate early in project planning so that broad

range of alternatives can be considered– Must be completed prior to approval of

expenditure of Federal funds or issuance of permit or license

Section 106 Review Steps cont.

• 1) Identification of historic properties (800.4)

These properties can include buildings, structures, sites, districts, objects, and landscapes.

Timing of Review• Process must be initiated early in project planning

– Broad range of alternatives should be available for consideration

• Section 106 must be completed – Prior to approval of the expenditure of Federal

funds– Issuance of any license or permit

• SHPO/THPO must respond to agency findings within 30 days – If not, agency may proceed

Section 106 Review Steps cont.

• 3) Assessment of adverse effects (800.5)– No historic properties affected– No adverse effect to historic properties– Conditional no adverse effect– Adverse effect to historic properties

• If scope of work meets Secretary of the Interior’s Standards for the Treatment of Historic Properties then finding will be “no adverse effect”

Assess Adverse Effects• Apply criteria of adverse effect

– Will the undertaking:• Alter characteristics that qualify the property for the

National Register of Historic Places• Diminish the property’s integrity of location, design,

setting, materials, workmanship, feeling or association

• Alterations may be direct or indirect• Agency should consider:

– All qualifying characteristics of the property• Adverse effects may include reasonably foreseeable

effects caused by the undertaking that may occur later in time, be farther removed in distance or be cumulative

Section 106 Review Steps cont.

4) Resolution of adverse effects• Continuing consultation • Avoiding adverse effect• Implementing mitigation measures

– Memorandum of Agreement (MOA) between all consulting/interested parties to document mitigation

Section 106 Review Steps cont.• Resolution of adverse effects

May result in development of a Memorandum of Agreement (MOA). If this is the case notify Council of adverse effect finding.At the same time ask if Council wishes to be involved with development of MOA in conjunction with SHPO, OAS and other parties– Public involvement all steps in the process– Failure to follow the correct process can result

in citizen litigation

How to Avoid Adverse Effects

• Pursue an alternative design• Pursue an alternative location• Limit magnitude• Rehabilitate - instead of demolish• Adopt a plan for preservation and maintenance• Move historic properties• Market properties for donation, sale or lease• Document historic property before destroying

– HABS/HAER• Pursue archeological data recovery

Responsibility• Section 106 compliance is agency responsibility• Lead agency allowed when undertaking involves

multiple agencies• Agency responsibility cannot be delegated, except

by statute as done for certain HUD programs• When not delegated by statute, agency must notify

SHPO/THPO by letter of others authorized to initiate Section 106 on their behalf

• Delegation does not extend to determinations of eligibility or adverse effects; this remains agency responsibility– May use contractors, consultants, designees and/or

applicants, but must ensure work meets standards

Consulting Parties

• State Historic Preservation Office (SHPO)

• Oklahoma Archeological Survey (OAS)

• Tribal Historic Preservation Offices (THPOs)

• Members of the Public with demonstrated legal, economic, or preservation interests– Agency decides, after consultation with

SHPO/THPO, whether to recognize latter as consulting party

Oklahoma Archeological Survey (OAS)

• Participation of OAS is through cooperative agreement with SHPO approved by NPS

• OAS maintains State Site files for archeological sites as well as provides prehistoric archeologist expertise for SHPO professional staffing requirements

Archeological Survey & Testing: Dos and Don’ts

• Testing of already listed or previously determined to be eligible (DOE) properties

• Archeologists cannot submit archeological reports directly to SHPO/OAS for review. Reports should be sent under cover letter from the client (if delegated to initiate Section 106); otherwise by the responsible Federal agency

• Principal investigator (PI) needs to meet Secretary of the Interior’s qualifications and standards

Assessing Late Period Historic Archeological Sites

• Fact Sheet #12

– Prehistoric versus Pre-contact/Post-contact Historic Period

– Prehistoric Period – 30,000 years up to historic contact• Period AD 1500 to 1700 difficult to separate

prehistoric from historic sites without radiocarbon dating in absence of historic trade goods in assemblage

Archeological Sites cont.

• Historic Period:– beginning date for Oklahoma: 1719 La

Harpe excursion into eastern Oklahoma– ending: through WWII

For late-1890s (twentieth century) and early-1900s sites, both “significance” (association & context) and “integrity” (level of preservation) must be applied to determine eligibility

Defining Period of Significance

• National Register of Historic Places (NRHP) – at least 50 years, in most cases

• Archeological Resources Protection Act of 1979 (ARPA) – at least 100 years

ARPA applies to federal properties and Native American lands

NRHP trumps ARPA for Section 106 review

Assigning Archeological Site Numbers

• The Oklahoma Archeological Survey at the University of Oklahoma (Norman) assigns site numbers as well as maintains the State site files

• Site numbers should not be assigned to:– Bridges– Barns (note: barn should be treated in context

of larger farmstead if possible)– Dams– Culverts – Other minor structures and features

Assigning Archeological Site Numbers cont.

• Bridges should be recorded using ODOT bridge forms

• For buildings over 45 years in age use SHPO Historic Resource Identification forms

• For small features and structures provide a brief narrative description and photographs in the main report

Burial Laws and Cemeteries

• State statutes apply for human burials, skeletal remains and burial furniture on non-Federal holdings regardless of nationality or age

• Cemeteries are not regulated but state statutes still apply – Laws can be accessed via internet through

Oklahoma Supreme Court Network (www.oscn.net) (see Fact Sheet #9)

Confidentiality

• Agency must withhold information on historic properties if it determines that release would:

1) Cause a significant invasion of privacy

2) Risk harm to a historic property

3) Impede use of a traditional religious site

National Historic Landmarks

• Decisions must include comment from the Secretary of the Interior, National Park Service if potential for adverse effect

• Oklahoma currently has 20 NHLs

Anticipatory Destruction: Section 110(k) of NHPA

• Agencies cannot grant assistance to applicants who try to avoid Section 106 review by adversely affecting historic properties unless:The agency first consults with Council– Council provides opinion on granting assistance

and possible mitigation– Agency must consider Council’s opinionThe agency then determines if circumstances

justify granting assistance

Coordination with Other Cultural Resource Laws

• Regulations encourage coordination with:– NEPA (National Environmental Policy Act - 1969, as

amended)– AHPA (Archeological and Historic Preservation Act -

1974, as amended)– ARPA (Archeological Resources Protection Act -

1979, as amended)– AIRFA (American Indian Religious Freedom Act -

1978, as amended)– NAGPRA (Native American Graves Protection and

Repatriation Act - 1990, as amended)• Compliance with one law does not equal compliance with

others

Indian Tribes and Native Hawaiian Organizations

• “Indian Tribes” are federally recognized tribes, including Alaska Native villages and corporations– For Oklahoma this involves 37 Federally

recognized tribes• Indian tribes are treated as sovereign nations• Need for government-to-government consultation• Consultation required when Federal undertaking

occurs on or affects historic properties on tribal lands

Tribal Historic Preservation Officer • THPO carries out function of the SHPO on tribal

lands when tribal program is approved by Secretary of Interior as 101(d)(2) designated tribe

• THPO must be consulted in lieu of SHPO for undertakings occurring on or affecting historic properties on “tribal lands”– Tribal lands meeting this definition are “those

lands held in common for the good of the tribe” (i.e. Trust properties)

• Past ancestral lands apply, but with dual review responsibilities of both SHPO and THPO

Section 101(d)(2) Tribes for Oklahoma

• Listed in order of recognition– 1) Caddo Nation– 2) Choctaw Nation– 3) Absentee Shawnee Tribe– 4) Citizen Potawatomi Nation

• Currently pending approval by NPS– Osage Nation– Miami Tribe– Comanche Nation– Wyandotte Nation

Which Tribes Should I Contact?

• Any and all Federally recognized tribes that have held treaties that include land in question

• Aboriginal tribes with ancestral ties to the property (e.g. prehistoric archeological sites)– To determine which tribes you should contact

consult BIA’s website– Also check Oklahoma Indian Affairs

Commission’s website for updated addresses and main contact person

Past Treaty Lands?

• To address area of concern recommend purchase Historical Atlas of Oklahoma, OU Press, 4th edition (Goins and Goble 2006)

(see handout in folder for additional details)– Includes maps showing extent of past treaty lands– however, does not address or show extent of

prehistoric holdings

Additional Consultant Tips

• Consult “Tips for Requesting SHPO Comments” (see handout in folder)

• FCC cell tower reviews must be submitted on FCC’s Forms 620 for new tower sites and Form 621 for collocations

• DEQ and NPDES permitting for storm water discharge permits (EPA ruling)

Questions?

• If not, then thank you for your attention and participation.