FHWAs Role in Section 106

1
FHWAs Role in Section 106

• According to the National Historic Preservation
  Act of 1966 (NHPA)
• the historical and cultural foundations of the
  Nation should be preserved as part of our
  community life and development in order to give a
  sense of orientation to the American people.
• 16 USC 470(b)(2)

2
Federal Agency Responsibility

• to foster conditions under which our modern
  society and our prehistoric and historic
  resources can exist in productive harmony
• 16 USC 470-1(1)

3
SECTION 106 of the NHPA16 USC 470(f)

• The head of any Federal agency having direct or
  indirect jurisdiction over a proposed 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.

4
Purposes of the Section 106 Process 36 CFR
800.1(a)

• Requires Federal agencies to take into account
  the effects of their undertakings on historic
  properties
• Seeks to accommodate historic preservation
  concerns with the needs of the Federal
  Undertaking through consultation
• Goal is to identify historic properties
  potentially affected, assess the effects and
  seeks ways to avoid, minimize or mitigate any
  adverse effects on historic properties

5
Anticipatory Demolition

• (k) Each Federal agency shall ensure that the
  agency will not grant a loan, loan guarantee,
  permit, license, or other assistance to an
  applicant who, with intent to avoid the
  requirements of section 470f of this title, has
  intentionally significantly adversely affected a
  historic property to which the grant would
  relate, or having legal power to prevent it,
  allowed such significant adverse effect to occur,
  unless the agency, after consultation with the
  Council, determines that circumstances justify
  granting such assistance despite the adverse
  effect created or permitted by the applicant.
• 16 USC 470h-2(k)

6
FHWA Responsibility, in Summary

• Consider the effects of undertakings on historic
  properties
• Establish an Area of Potential Effect
• Identify historic properties
• Determine the effects of the undertaking
• Avoid, minimize or mitigate those effects
• Consult with the SHPO/THPO, local officials, the
  public, and other consulting parties at
  appropriate points in the process

7
FHWA Responsibilities, continued

• Consult with ACHP when appropriate.
• Ensure implementation of any commitments within
  an MOA.
• FHWA is required to sign the MOA. Other
  responsible parties are requested to sign the
  MOA.
• Special consideration and additional process for
  properties which are listed as National Historic
  Landmarks.

8
Section 4(f)

• Only applies to projects with Fed-Aid Highway
  Funding
• More stringent than Section 106
• You MUST select an alternative that is feasible
  and prudent and does not use the historic
  property
• (i.e. have an adverse effect on and take r/w from
  a historic property)
• An MOA does not override this requirement