A BEGINNERS GUIDE TO SUCCESSFUL COMPLETION OF THE SECTION 106 REVIEW PROCESS

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A BEGINNERS GUIDE TO SUCCESSFUL COMPLETION OF THE
SECTION 106 REVIEW PROCESS

• TENNESSEE STATE HISTORIC PRESERVATION OFFICE
• REVIEW AND COMPLIANCE SECTION

All reproduction rights reserved
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What follows is a presentation text in PowerPoint
format. It is being presented that way because
the staff of the Tennessee State Historic
Preservation Offices Review and Compliance
Section believes you will be able to absorb more
of the message of the presentation in this format
than if it were presented as a printed text. As
such, this presentation lacks much of the punch
of a normal PowerPoint presentation. But since
we are not there to narrate all the needed
information for you, this is the best way to
transmit the information you need to complete
Section 106 review swiftly and successfully.
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THE GUIDING FORCE THAT DRIVES THE SECTION 106
REVIEW PROCESS IS HISTORIC PRESERVATION
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HISTORIC PRESERVATION
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HISTORIC PRESERVATION
What is Historic Preservation within a Section
106 context?
The National Historic Preservation Act states
"Preservation" or "historic preservation"
includes identification, evaluation, recordation,
documentation, curation, acquisition, protection,
management, rehabilitation, restoration,
stabilization, maintenance, research,
interpretation, conservationand education and
training regarding the foregoing activities or
any combination of the foregoing activities.
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Doing those things is what Section 106 of the
National Historic Preservation Act is all about.
Identification, Evaluation, Recordation,
Documentation, Curation, Acquisition, Protection,
Management, Rehabilitation, Restoration,
Stabilization, Maintenance, Research,
Interpretation, and Conservation of National
Register of Historic Places Listed and Eligible
Properties
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THE NATIONAL HISTORIC PRESERVATION ACT OF 1966 AS
AMENDED IN 1992 (NHPA)
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NATIONAL HISTORIC PRESERVATION ACT OF 1966 AS
AMENDED IN 1992
"In the face of ever-increasing extensions of
urban centers, highways, and residential,
commercial, and industrial development,
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NATIONAL HISTORIC PRESERVATION ACT OF 1966 AS
AMENDED IN 1992
the present governmental and nongovernmental
Historic Preservation programs and activities are
CURRENTLY, 1966 inadequate to ensure future
generations a genuine opportunity to appreciate
and enjoy the rich heritage of our Nation."
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SECTION 106 OF THE NHPA REMEDIED THAT INADEQUACY
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SECTION 106 OF THE NATIONAL HISTORIC PRESERVATION
ACT PART ONE
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 of Historic Places.
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SECTION 106 OF THE NATIONAL HISTORIC PRESERVATION
ACT PART TWO
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.
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THE ESSENCE OF SECTION 106 REVIEW

• Section 106 of the National Historic Preservation
  Act requires Federal agencies that fund, license,
  permit, or approve programs, projects, and
  activities to take into account the effects of
  their undertaking upon significant architectural
  and archaeological properties listed in or
  eligible for listing in the National Register of
  Historic Places as they plan and carry out their
  undertakings.

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THE ESSENCE OF SECTION 106 REVIEW
This is a quite simple, forthright, and efficient
process CODIFIED AT 36 CFR 800, complete with
clearly defined STEPS and a logical PROGRESSION
OF ACTIVITIES that allows the Federal agency or
applicant for Federal assistance to RECEIVE HELP
through CONSULTATION with a number of individuals
and groups who are both knowledgeable and
experienced.
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SECTION 106 REVIEW IS A PLANNING PROCESS
The Section 106 process is, at base, a planning
process. Like any other planning process, it
requires Federal agencies to survey a specified
geographic area (to identify Historic Properties
eligible for listing in the National Register of
Historic Places), evaluate (Historic Properties
against National Register Of Historic Places
criteria), and treat (any National
Register-eligible Historic Properties identified)
using both standard and innovative measures to
avoid, minimize, or mitigate project adverse
effects upon those properties.
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36 CFR PART 800
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36 CFR PART 800
36 CFR Part 800, which is the Federal regulation
that specifies how U. S. GOVERNMENT AGENCIES
comply with Section 106, designates all
authorized participants in Section 106 reviews
and delineates a FOUR-STEP PROCESS for successful
completion of Section 106 review.
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FEDERAL UNDERTAKINGS SUBJECT TO SECTION 106
REVIEW AS DEFINED AT 36 CFR 800
ALL FEDERAL FUNDING, LICENSING, PERMITTING, AND
APPROVING PROJECTS, PROGRAMS, AND ACTIVITIES THAT
MIGHT HAVE AN EFFECT UPON PROPERTIES LISTED IN OR
ELIGIBLE FOR LISTING IN THE NATIONAL REGISTER OF
HISTORIC PLACES ARE UNDERTAKINGS
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1) ALL FEDERAL FUNDING, LICENSING, PERMITTING,
AND APPROVING PROJECTS, PROGRAMS, AND ACTIVITIES
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2) THAT MIGHT HAVE AN EFFECT UPON
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3) PROPERTIES LISTED IN OR ELIGIBLE FOR LISTING
IN THE NATIONAL REGISTER OF HISTORIC PLACES
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FEDERAL UNDERTAKINGS SUBJECT TO SECTION 106
REVIEW AS DEFINED AT 36 CFR 800
THESE FEDERAL PROJECTS, PROGRAMS, AND ACTIVITIES
ARE DEFINED AS UNDERTAKINGS SUBJECT TO SECTION
106 REVIEW IF THEY MEET CERTAIN CRITERIA. THIS
PRESENTATION WILL LIST THESE CRITERIA DURING THE
DISCUSSION OF STEP ONE IN THE SECTION 106 REVIEW
PROCESS CODIFIED AT 36 CFR 800.3
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U. S. GOVERNMENT AGENCIES APPOINT AGENCY
OFFICIALS TO MOVE UNDERTAKINGS SWIFTLY AND
SUCCESSFULLY THROUGH THE SECTION 106 REVIEW
PROCESS
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U. S. GOVERNMENT AGENCIES

• THE FEDERAL AGENCY OFFICIAL has the HIGHEST
  RESPONSIBILITY for completing the Section 106
  review delineated at 36 CFR 800 process
  successfully. The agency official has specific
  authority to
• fund the project
• issue the license
• award the permit or approval
• make appropriate changes in a funded, licensed,
  or permitted activity to avoid or minimize
  project effect
• finance any mitigative measures needed to
  resolve adverse effect.

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U. S. GOVERNMENT AGENCIES
The Agency Official may also be a State, local,
or tribal government official who has been
delegated legal responsibility for compliance
with Section 106 in accordance with Federal law.
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U. S. GOVERNMENT AGENCIES
The agency official should plan consultations
appropriate to the scale of the undertaking and
the scope of Federal involvement and coordinated
with other requirements of other statutes, as
applicable, such as the National Environmental
Policy Act, the Native American Graves Protection
and Repatriation Act, the American Indian
Religious Freedom Act, the Archeological
Resources Protection Act, and agency-specific
legislation.
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PARTICIPANTS IN SECTION 106 REVIEW
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PARTIES WITH STANDING HAVE THE RIGHT TO
PARTICIPATE IN SECTION 106 REVIEW
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WHAT IS STANDING?
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STANDING

• A financial or other STAKE in the outcome of the
  undertaking
• A possible injury caused by the undertaking OR by
  avoiding the undertaking
• A possibility of relief from that injury

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STANDING
The right to initiate or participate in a legal
action. A demonstrated interest in the
undertaking.
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STANDING
Standing ultimately means the ability of a party
to demonstrate to a Federal District Court
sufficient connection to and possible harm from
the federal undertaking being challenged to
support that party's participation in the case.
In the United States, the current doctrine is
that a party cannot bring a challenge to a
Federal action unless that party can demonstrate
that he is (or will imminently be) harmed by the
action, or lack of action, and that a Court Order
could eliminate that harm. Otherwise, the Court
will rule that the party "lacks standing" to
bring the challenge.
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THE RIGHT TO BE PARTICIPANTS

1. Agency Official legal and financial
   responsibility for the project
2. ACHP national mandate to ensure compliance with
   Section 106
3. SHPOs statewide mandate to protect historic
   properties
4. THPOs religious and cultural interest on tribal
   land
5. Tribes religious and cultural interest off
   tribal land
6. Local governments police power jurisdiction
7. Applicants for Federal assistance requests for
   funds, licenses, permits, or approvals
8. Property owners real estate and financial stake
   in the project
9. Other groups or individuals with a stake in the
   project

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36 CFR 800.2
always ? sometimes

• PARTICIPANTS IN THE SECTION 106 REVIEW PROCESS
• Agency Official
• Advisory Council on Historic Preservation ?
• State Historic Preservation Officer
• Tribal Historic Preservation Officer ?
• Indian Tribes or Native Hawaiian Organizations
• Representatives of Local Governments
• Applicants for Federal assistance ?
• Property Owners ?
• Additional Consulting Parties (parties with
  STANDING) ?

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AGENCY OFFICIAL
It is the statutory obligation of each Federal
agency to fulfill the requirements of Section 106
and to ensure that a Federal AGENCY OFFICIAL with
jurisdiction over an undertaking takes legal and
financial responsibility for Section 106
compliance.
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ADVISORY COUNCIL ON HISTORIC PRESERVATION
The ACHP issues regulations to implement Section
106, provides guidance and advice on the
application of the procedures in 36 CFR 800, and
generally oversees the operation of the Section
106 process. The ACHP also consults with and
comments to agency officials on individual
undertakings and programs that affect historic
properties.
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STATE HISTORIC PRESERVATION OFFICER
The State Historic Preservation Officer (SHPO)
reflects the interests of the State and its
citizens in the preservation of their cultural
heritage. In accordance with section 101(b)(3) of
the NHPA, the SHPO advises and assists Federal
agencies in carrying out their Section 106
responsibilities and cooperates with such
agencies, local governments and organizations and
individuals to ensure that historic properties
are taking into consideration at all levels of
planning and development.
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STATE HISTORIC PRESERVATION OFFICER AUTHORITY
NHPA TITLE I Section 101 (16 US.C 470a)
(3) It shall be the responsibility of the State
Historic Preservation Officer to administer the
State Historic Preservation Program and to--(I)
consult with the appropriate Federal agencies in
accordance with this Act on--(i) Federal
undertakings that may affect historical
properties and (ii) the content and sufficiency
of any plans developed to protect, manage, or to
reduce or mitigate harm to such properties and
(J) advise and assist in the evaluation of
proposals for rehabilitation projects that may
qualify for Federal assistance.
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TRIBAL HISTORIC PRESERVATION OFFICER
For a tribe that has assumed the responsibilities
of the SHPO for Section 106 on tribal lands under
Section 101(d)(2) of the NHPA, the Tribal
Historic Preservation Officer (THPO) appointed or
designated in accordance with the NHPA is the
official representative for the purposes of
Section 106. The agency official shall consult
with the THPO in lieu of the SHPO regarding
undertakings occurring on or affecting historic
properties ON TRIBAL LANDS.
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INDIAN TRIBES
Section 101(d)(6)(B) of the act requires the
agency official to consult with any Indian tribe
that attaches religious and cultural significance
to historic properties that may be affected by an
undertaking. This requirement applies regardless
of the location of the historic property. Such
Indian tribe shall be a consulting party.
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REPRESENTATIVES OF LOCAL GOVERNMENTS
A representative of a local government with
jurisdiction over the area in which the effects
of an undertaking may occur is entitled to
participate as a consulting party. Under other
provisions of Federal law, the local government
may be authorized to act as the agency official
for purposes of Section 106.
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APPLICANTS FOR FEDERAL ASSISTANCE
An applicant for Federal assistance or for a
Federal permit, license, or other approval is
entitled to participate as a consulting party as
defined in this part. The agency official may
authorize an applicant or group of applicants to
initiate consultation with the SHPO and others,
but remains legally responsible for all findings
and determinations charged to the agency official.
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PROPERTY OWNERS
Certain individuals and organizations with a
demonstrated interest in the undertaking may
participate as consulting parties DUE TO THE
NATURE OF THEIR LEGAL OR ECONOMIC RELATION TO THE
UNDERTAKING OR AFFECTED PROPERTIES.
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ADDITIONAL CONSULTING PARTIES (PARTIES WITH
STANDING)
Certain individuals and organizations with a
demonstrated interest in the undertaking may
participate as consulting parties DUE TO THE
NATURE OF THEIR CONCERN WITH THE UNDERTAKING'S
EFFECTS ON HISTORIC PROPERTIES.
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THE ROLE OF THE PUBLIC IN SECTION 106 REVIEW
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THE PUBLIC
The agency official shall seek and consider the
views of the public in a manner that reflects the
nature and complexity of the undertaking and its
effects on historic properties, the likely
interest of the public in the effects on historic
properties, confidentiality concerns of private
individuals and businesses, and the relationship
of the Federal involvement to the undertaking.
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CONSULTATION
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THE FEDERAL AGENCY OFFICIAL CONSULTS WITH THE
OTHER PARTICIPANTS TO COMPLETE SECTION 106 REVIEW
PROMPTLY AND SUCCESSFULLY
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Consultation means the process of seeking,
discussing, and considering the views of other
participants, and, where feasible, seeking
agreement with them regarding matters arising in
the Section 106 process. The Secretary's
Standards and Guidelines for Federal Agency
Preservation Programs pursuant to the National
Historic Preservation Act provide further
guidance on consultation
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THE FOUR STEP SECTION 106 REVIEW PROCESS
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36 CFR 800.3 THRU .6
THE FOUR STEP PROCESS

1. INITIATE SECTION 106 REVIEW
2. IDENTIFY HISTORIC PROPERTIES
3. ASSESS PROJECT EFFECTS
4. RESOLVE ADVERSE EFFECTS

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In Consultation with other participants, Federal
Agencies and applicants for Federal assistance
carry out as many of the four steps as are
necessary. In most cases, that usually means
steps one and two.
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INITIATE SECTION 106 REVIEW
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Section 106 Regulations Flow Chart
Initiate Section 106 Process Establish
undertakingIdentify appropriate SHPO/THPO Plan
to Involve the Public Identify other consulting
parties
No Undertaking/No Potential to Cause Effects
Undertaking is a type that might affect Historic
Properties
Advisory Council On Historic Preservation,
Working with Section 106 Users Guide  Section
106 Flow Chart
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ESTABLISH UNDERTAKING
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A FEDERAL UNDERTAKING SUBJECT TO SECTION 106
REVIEW

• project, activity, or program,
• Federally 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 or
• those carried out with Federal financial
  assistance or
• those requiring a Federal permit, license or
  approval, or
• those subject to State or local regulation
  administered pursuant to a delegation or approval
  by a Federal agency

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that might cause an effect to a property
eligible for listing in or listed in the National
Register of Historic Places
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IDENTIFY APPROPRIATE SHPO
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IN TENNESSEE, THE APPROPRIATE STATE HISTORIC
PRESERVATION OFFICE IS THE TENNESSEE HISTORICAL
COMMISSION
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PLAN TO INVOLVE THE PUBLIC
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When Planning to Involve the Public, Federal
Agency Officials may use the agency's procedures
for public involvement under the National
Environmental Policy Act or other program
requirements in lieu of public involvement
requirements in 36 CFR 800.3 through .7, if they
provide adequate opportunities for public
involvement consistent with the 36 CFR 800
regulation.
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IDENTIFY CONSULTING PARTIES
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CONSULTING PARTIES

• State Historic Preservation Officer
• Tribal Historic Preservation Officer
• Indian Tribes or Native Hawaiian Organizations
• Representatives of Local Governments
• Applicants for Federal assistance
• Additional Consulting Parties (parties with
  standing)

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IDENTIFY HISTORIC PROPERTIES
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Section 106 Regulations Flow Chart
Identify Historic Properties Determine Scope of
Efforts Identify historic propertiesEvaluate
historic significance
No historic properties affected
Historic properties are affected
Advisory Council On Historic Preservation,
Working with Section 106 Users Guide  Section
106 Flow Chart
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DETERMINE SCOPE OF EFFORTS
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SCOPE OF EFFORTS
The agency official shall make a reasonable and
good faith effort to carry out appropriate
identification efforts, which may include
background research, consultation, oral history
interviews, sample field investigation, and field
survey. The agency official shall take into
account past planning, research and studies, the
magnitude and nature of the undertaking and the
degree of Federal involvement, the nature and
extent of potential effects on historic
properties, and the likely nature and location of
historic properties within the area of potential
effects. The Secretary's standards and guidelines
for identification provide guidance on this
subject. The agency official should also consider
other applicable professional, State, tribal, and
local laws, standards, and guidelines. The agency
official shall take into account any
confidentiality concerns raised by Indian tribes
or Native Hawaiian organizations during the
identification process.
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AREA OF POTENTIAL EFFECTS
A bounded area on a USGS topographic map within
which a Federal undertaking may change, modify,
or adjust, either immediately, cumulatively, or
within the foreseeable future, that combination
of qualities or features that distinguishes an
historic property or the purpose for which the
historic property has been traditionally used.
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IDENTIFY HISTORIC PROPERTIES
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IDENTIFICATION OF HISTORIC PROPERTIES
The agency official shall review existing
information, seek information from Consulting
Parties, and gather information on historic
properties within the Area of Potential Effects.
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EVALUATE HISTORIC PROPERTIES
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NATIONAL REGISTER CRITERIA OF EVALUATION
We judge a property's significance and,
ultimately, its National Register eligibility by
evaluating its historic CONTEXT (significance
through INTEGRITY and ASSOCIATION), and its AGE.
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INTEGRITY
INTEGRITY is the ability of a historic property
to convey its significance.
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INTEGRITY
LOCATION is the place where the historic property
was constructed or the place where the historic
event occurred.
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INTEGRITY
DESIGN is the combination of elements that create
the form, plan, space, structure, and style of a
property.
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INTEGRITY
SETTING is the physical environment of a historic
property.
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INTEGRITY
MATERIALS are the physical elements that were
combined or deposited during a particular period
of time and in a particular pattern or
configuration to form a historic property.
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INTEGRITY
WORKMANSHIP is the physical evidence of the
crafts of a particular culture or people during
any given period in history or prehistory.
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INTEGRITY
FEELING is a property's expression of the
aesthetic or historic sense of a particular
period of time.
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ASSOCIATION
ASSOCIATION is the direct link between an
important historic event, or person, or
significant architectural style, or newly
discovered information that will illuminate our
history and a historic property.
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AGE
Ordinarily cemeteries, birthplaces, graves of
historical figures, properties owned by religious
institutions or used for religious purposes,
structures that have been moved from their
original locations, reconstructed historic
buildings, properties primarily commemorative in
nature, and properties that have achieved
significance WITHIN THE PAST 50 YEARS shall not
be considered eligible for the National
Register.
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ASSESS PROJECT EFFECTS
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Section 106 Regulations Flow Chart
Assess Adverse Effects
No historic properties are adversely affected
(conditions)
Historic properties are adversely affected
Advisory Council On Historic Preservation,
Working with Section 106 Users Guide  Section
106 Flow Chart
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ADVERSE EFFECT
In consultation with the SHPO, the agency
official finds an adverse effect when an
undertaking may alter, directly or indirectly,
any of the characteristics of a historic property
that qualify the property for inclusion in the
National Register in a manner that would diminish
the integrity of the property's location, design,
setting, materials, workmanship, feeling, or
association.
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EXAMPLES OF ADVERSE EFFECT
Physical destruction or demolition of or damage
to all or part of the property
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EXAMPLES OF ADVERSE EFFECT
Alteration of a property
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EXAMPLES OF ADVERSE EFFECT
Removal of the property from its historic location
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EXAMPLES OF ADVERSE EFFECT
Change of the character of the propertys use or
of physical features within the property's
setting that contribute to its historic
significance
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EXAMPLES OF ADVERSE EFFECT
Introduction of visual, atmospheric or audible
elements that diminish the integrity of the
property's significant historic features
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EXAMPLES OF ADVERSE EFFECT
Neglect of a property
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EXAMPLES OF ADVERSE EFFECT
Transfer, lease, or sale of property out of
Federal ownership or control without adequate and
legally enforceable restrictions or conditions to
ensure long-term preservation of the property's
historic significance
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RESOLVE ADVERSE EFFECTS
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Section 106 Regulations Flow Chart
Resolve Adverse Effects
Avoid or Minimize
Memorandum of Agreement?
Advisory Council On Historic Preservation,
Working with Section 106 Users Guide  Section
106 Flow Chart
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AVOID OR MINIMIZE
The agency official consults with the SHPO and
other consulting parties, including Indian
tribes, to DEVELOP AND EVALUATE ALTERNATIVES OR
MODIFICATIONS TO THE UNDERTAKING that could AVOID
or MINIMIZE adverse effects on historic
properties.
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MITIGATE
The agency official may use standard treatments
established by the ACHP under 36 CFR 800.14(d) as
a basis for a Memorandum of Agreement to MITIGATE
adverse project effects.
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CONSULTATION IS THE KEY TO SUCCESSFUL SECTION 106
REVIEW
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SOME ISSUES RESOLVED THROUGH CONSULTATION
(a) who are/are not legitimate Consulting
Parties (b) how are the views of the public to
be taken into account (c) what is the correct
boundary of an undertakings Area of Potential
Effects (d) what is the correct process for
using the National Register of Historic Places
Criteria for Evaluation in identifying and
evaluating Historic Properties (e) what are the
proper methods for using the Criteria of Adverse
Effect found at 36 CFR 800.5 to decide about
project effect (f) what are the accepted methods
for examining and evaluating project alternatives
intended to avoid, minimize, or mitigate adverse
effect and (g) what are the specific conditions
or stipulations used to resolve project adverse
effect.
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THE SECTION 106 CHECKLIST QUESTIONS
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CAN YOU ANSWER THE SECTION 106 CHECKLIST
QUESTIONS?

• What are the two requirements placed upon Federal
  agencies by Section 106 of the National Historic
  Preservation Act
• What are the four steps in Section 106 review
  required by
• 36 CFR Part 800
• What is an Undertaking
• Who are Consulting Parties
• What is an Area of Potential Effects
• What are Historic Properties
• What is Project Adverse Effect
• How do you Resolve Adverse Effects

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For more information.
Joseph Y. Garrison, PhD Review and Compliance
Coordinator Tennessee Historical Commission 2941
Lebanon Road Nashville, Tennessee 37243-0442 Jose
ph.Garrison_at_tn.gov [phone]-103
phone [phone] fax
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END OF PRESENTATION
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