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THE FOUR STEP SECTION 106 PROCESS: STEP THREE TENNESSEE STATE HISTORIC PRESERVATION OFFICE REVIEW AND COMPLIANCE SECTION

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Title: THE FOUR STEP SECTION 106 PROCESS: STEP THREE TENNESSEE STATE HISTORIC PRESERVATION OFFICE REVIEW AND COMPLIANCE SECTION


1
THE FOUR STEP SECTION 106 PROCESS STEP
THREETENNESSEE STATE HISTORIC PRESERVATION
OFFICEREVIEW AND COMPLIANCE SECTION
All reproduction rights reserved
2
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.
3
INTRODUCTION
4
The Federal Agency Official should apply the
Criteria of Adverse Effect (800.5(a)(1) and
800.5(a)(2)) in seeking to decide the type and
nature of project effect upon identified Historic
Properties located within the undertakings APE.
 
5
Step Three Assess Project Effects Upon Historic
Properties
6
Questions You Should Answer Before Beginning
Consultation
7
Step Three Assess Project Effects
  • What is the result of applying the Criteria of
    Adverse Effect to the project under review?
  • Which specific Criteria of Adverse Effect apply
    to this project?

8
  • IS THERE A PUBLIC INTEREST IMPERATIVE IN
    IMPLEMENTING THIS SPECIFIC UNDERTAKING?

9
Public Interest Imperative
Funded Federal undertakings located on Federal
land or associated with Federal buildings are, by
definition, in the public interest, because they
are the product of specific Federal statute.
10
However
11
Public Interest Imperative
Undertakings that are associated with specific
Federal grants or loans to non-Federal
applicants, or Federal licenses, permits, or
approvals are not necessarily in the public
interest, because they are not specifically the
product of Federal statute.
12
Public Interest Imperative
Furthermore, activities for which non-Federal
applicants must duly seek a Federal license,
permit, or approval are clearly not necessarily
in the public interest. Otherwise, no Federal
license, permit, or approval for such activities
would be necessary in the first place.
13
Public Interest Imperative
That means for these undertakings, when faced
with an adverse effect determination, Federal
agencies and applicants must devote extra time to
exploring alternatives that avoid or minimize
adverse effects in consultation with other
participants.
14
Public Interest Imperative
Because, for these undertakings, the Section 106
General Welfare mission trumps the mission of
the Federal agency or applicant. It is not
necessarily in the public interest for a specific
applicant for Federal assistance to receive that
specific assistance.
15
Public Interest Imperative
Therefore, it is the responsibility of the agency
or applicant to demonstrate a genuine and
defendable purpose and need for that undertaking.
Doing so will increase agency and applicant
positive influence over the other participants in
Section 106 review.
16
How Do You
assess the effects of your undertaking upon
Historic Properties?
17
Undertakings may have both direct and indirect
effects. That is, effects may be both cumulative
over time as well as a direct and immediate
consequence of the federal undertaking. Under
the 36 CFR 800 regulation, federal agencies must
apply the if but for rule as they determine a
particular undertakings ultimate and foreseeable
Area of Potential Effects.
18
For example, an agency receives an application
for a permit to construct a marina on the edge of
a watercourse in conjunction with the
construction of an adjacent condominium
development. The agency is obliged, in
establishing the undertakings foreseeable APE,
to determine whether the marina is essential to
the condominium development. A standard
operating procedure for making such a
determination involves reviewing the condominium
development site plan to determine whether the
marina is among its programmatic elements. If
the agency determines after a good faith analysis
that the condominium development is directly
dependent upon the construction of the marina,
then the APE of the undertaking should include
both the marina and the condominium development.
The marina has the potential directly to affect
cultural resources along the watercourse and
indirectly to affect cultural resources disturbed
during the construction of the condominium
development. If the condominium development does
not directly depend upon the marina, the APE
includes only the marina footprint.
19
Here is another example. An agency receives a
request for funding of an underground water line
stretching from the community water treatment
plant to a proposed industrial park. In defining
the project APE, the agency shall test the
proposed industrial park against the if but for
rule. If the industrial park is dependent upon
the water line, then the projects APE includes
both the route of the water line and the site of
the industrial park. If the industrial park
could function without the water line (most
unlikely), then the APE would only include the
route of the line.
20
The if but for rule is a direct concomitant of
the concept of cumulative and foreseeable project
effect. Since the 36 CFR 800 regulation states
very clearly that any federal undertaking may
have both direct and indirect (cumulative and
foreseeable) effects, then federal agencies must
apply the if but for rule as a matter of
course.   Agencies that do not take both direct
and indirect effects into account when
delineating their APEs risk charges of
noncompliance and subsequent litigation.
21
SECTION 106 CHECKLIST
22
Questions
  • Assess the possible direct, and indirect, and
    cumulative effects of the undertaking upon
    identified historic properties and any
    alternatives you may have explored, thus defining
    the historic preservation issues and providing a
    clear basis for choice among options by the
    consulting parties and the public.
  • Yes_________ No_________

23
Questions
  • 40 CFR Part 1508.8 lists various kinds of Effects
    that include
  • (a) Direct effects, which are caused by the
    action and occur at the same time and place, and,

24
Questions
  • (b) Indirect effects, which are caused by the
    undertaking and are later in time or farther
    removed in distance, but are still reasonably
    foreseeable.

25
Questions
  • Indirect effects may include growth inducing
    effects and other effects related to induced
    changes in the pattern of land use, population
    density or growth rate, and related effects on
    air and water and other natural systems,
    including ecosystems.

26
Questions
  • 40 CFR Part 1508.7 defines "Cumulative impact"
    as the impact on the environment which results
    from the incremental impact of the action when
    added to other past, present, and reasonably
    foreseeable future actions.

27
Questions
  • Cumulative impacts can result from individually
    minor but collectively significant actions taking
    place over a period of time.

28
HOW DO YOU ASSESS THE DIRECT AND INDIRECT EFFECTS
OF THE UNDERTAKING UPON HISTORIC PROPERTIES?
29
APPLY THE CRITERIA OF ADVERSE EFFECT
30
Criteria of Adverse Effect
  • Apply the Criteria Of Adverse Effect
  •  
  • You should apply the Criteria of Adverse Effect
    (800.5(a)(1) and 800.5(a)(2)) in seeking to
    decide the type and nature of project effect upon
    Historic Properties.

31
Criteria of Adverse Effect
    (a) Apply criteria of adverse effect. In
consultation with the SHPO/THPO and any Indian
tribe that attaches religious and cultural
significance to identified historic properties,
the agency official shall apply the criteria of
adverse effect to historic properties within the
area of potential effects. The agency official
shall consider any views concerning such effects
which have been provided by consulting parties
and the public
32
Criteria of Adverse Effect
The Criteria of Adverse Effect found at 36 CFR
Part 800.5 contains a list of possible adverse
effects to historic properties. While this list
is not comprehensive, agency officials,
consulting parties, and the public do well to use
it to help them make informed findings about the
possible adverse effects to historic properties
of federal projects.
33
Criteria of Adverse Effect
  • Adverse Effects include, BUT ARE NOT LIMITED to
    the following

34
Criteria of Adverse Effect
  • Any physical destruction of or damage to an
    Historic Property which would diminish its
    integrity for listing in the National Register of
    Historic Places currently or in the foreseeable
    future (the Tennessee State Historic Preservation
    Office will be especially mindful of effects
    which make a Historic Property ineligible for
    listing in the National Register (currently or in
    the foreseeable future) (this includes seismic
    damage) 
  • Yes_________ No_________

35
Criteria of Adverse Effect
  • Any alteration to an Historic Property not in
    accordance with the secretary of the interiors
    standards for the treatment of historic
    properties
  • http//www.nps.gov/history/hps/tps/standguide/
  •  
  • Yes_________ No_________

36
Criteria of Adverse Effect
  • Any removal of a Historic Property from its
    location when location and setting have been
    determined to be part of the resources National
    Register eligibility
  •  
  • Yes_________ No_________

37
Criteria of Adverse Effect
  • Any changes to the Historic Propertys character
    or setting that diminish its integrity (the
    Tennessee State Historic Preservation Office will
    be especially mindful of effects which make a
    Historic Property ineligible for listing in the
    National Register currently or in the foreseeable
    future)
  •  
  • Yes_________ No_________

38
Criteria of Adverse Effect
  • Any introduction of out of character elements
    (visual, oral, etc.) into the affective vicinity
    of the Historic Property which diminish its
    integrity (again, the Tennessee State Historic
    Preservation Office will be especially mindful of
    effects which make a Historic Property ineligible
    for listing in the National Register currently or
    in the foreseeable future) 
  • Yes_________ No_________

39
Criteria of Adverse Effect
  • Any neglect that causes the Historic Property to
    lose integrity (unless the resource has
    demonstrable significance wholly as a religious
    or cultural property and the Consulting Party
    making the assertion of significance deems
    neglect as not adverse)
  •  
  • Yes_________ No_________

40
Criteria of Adverse Effect
  • Any lease, transfer, or sale of a Historic
    Property out of Federal control without adequate
    protection in the form of a preservation covenant
  •  
  • Yes_________ No_________

41
Criteria of Adverse Effect
  • Any data recovery of any archaeological Historic
    Property unless determined eligible wholly under
    National Register Criterion D (this adverse
    effect may be resolved by using the Advisory
    Council on Historic Preservations Recommended
    Approaches for Consultation on Recovery of
    Significant Information from Archaeological
    Sites 64 CFR 27085-27087)
  •  
  • Yes_________ No_________

42
As a general rule of thumb, adverse effect
occurs when the archaeological, architectural, or
historical integrity of an Historic Property that
qualifies it to be eligible for listing in the
National Register of Historic Places will be
diminished to such an extent by the undertaking
that the future National Register eligibility of
the Historic Property under any and all National
Register Criteria is threatened by the
undertaking. Federal agencies, therefore, should
decide whether their undertaking would so
diminish the integrity of a National Register
eligible property as to threaten its future
eligibility under any of the four National
Register Criteria.  
43
Properties listed in the National Register of
Historic Places under less than all four criteria
are still subject to evaluation of their
eligibility under all four criteria. Remember,
the National Register of Historic Places is not
the complete roster for the Section 106 process.
Eligibility for listing in the National Register,
and not National Register listing itself is the
deciding factor here.
44
WHAT ARE THE CLASSES OF FEDERAL UNDERTAKINGS MOST
LIKELY TO AFFECT HISTORIC PROPERTIES ADVERSELY?
45
  • Federal undertakings most likely to affect
    historic properties adversely
  • any proposed demolition or construction work on a
    know historic property,
  • any new highway construction or widening,
  • any project in any way involving disturbing the
    ground,
  • and any project involving large areas of land or
    long land corridors.

46
Federal undertakings most likely to affect
historic properties adversely Any federal
licenses or permits for such projects also have a
high potential to affect historic properties
adversely. Agency officials who are thinking
about such undertakings should begin exploring
alternative proposals and alternative locations
as soon as possible in their project planning
process.
47
WHAT IS A USEFUL WAY OF ANALYSING THE SCOPE AND
NATURE OF THE ADVERSE EFFECT?
48
ANALYSING THE SIGNIFICANCE OF THE ADVERSE EFFECT
By using certain benchmarks found at 40 CFR
1508.27, Agency Officials and applicants for
Federal assistance may assess the scope, nature,
and severity of the impact of their undertakings
upon Historic Properties quite accurately.
49
ANALYSING THE SIGNIFICANCE OF THE ADVERSE EFFECT
  • For example, would the proposed undertaking
    significantly and adversely affect the unique
    characteristics of the geographic area bounded by
    the Area of Potential Effects. Such unique
    characteristics would include proximity to
    historic or cultural resources.
  • Yes_________ No_________

50
ANALYSING THE SIGNIFICANCE OF THE ADVERSE EFFECT
Or would the proposed undertaking significantly
and adversely affect districts, sites, highways,
structures, or objects listed in or eligible for
listing in the National Register of Historic
Places or cause loss or destruction of
significant cultural, or historical
resources. Yes_________ No_________
51
ANALYSING THE SIGNIFICANCE OF THE ADVERSE EFFECT
Or would the effects of the undertaking to
historic properties be likely to be highly
controversial. Yes_________ No_________
52
ANALYSING THE SIGNIFICANCE OF THE ADVERSE EFFECT
Or would the effects of the undertaking be likely
to be highly uncertain or involve unique or as
yet unknown risks to historic properties. Yes____
_____ No_________
53
ANALYSING THE SIGNIFICANCE OF THE ADVERSE EFFECT
Or would the effects of the undertaking be likely
to establish a precedent for future actions with
significant effects to historic properties or
represent a decision in principle about a future
undertaking that might affect historic
properties. Yes_________ No_________
54
ANALYSING THE SIGNIFICANCE OF THE ADVERSE EFFECT
Or would the effects of the undertaking be likely
to violate Federal, State, or local law or
requirements imposed for the protection of
historic properties. Yes_________
No_________
55
Firewall
  • If the answer to any of the preceding questions
    is Yes, your undertaking will most likely have
    an adverse effect upon an historic property.
    Proceed to Step Four and resolve the adverse
    effect.

56
Firewall
  • If not, and if you have determined in
    consultation with the Tennessee SHPO and other
    affected consulting parties that the undertaking
    will not adversely affect Historic Properties,
    you are near completion of Step Three
    (800.4(d)(2) and 800.5(a))

57
Firewall
Finding
  • No Adverse Effect

58
WHAT IS THE AGENCY OFFICIALS EFFECT FINDING?
59
Reality Check
After the Agency Official has subjected the
undertaking to these tests, (s)he will then
submit a finding either of no adverse effect or
conditional no adverse effect or adverse
effect plus supporting documentation to the SHPO
and all other consulting parties for a 30-day
review.
60
How will you assess project effects to historic
properties?
  1. Consult the Criteria of Adverse Effect.
  2. Evaluate the project against each criterion.
  3. Seek the views of Consulting Parties
  4. Seek concurrence of the Tenessee SHPO.

.
61
THREE POSSIBILITIES
62
Summary
  • The outcome of this effects assessment can result
    in three findings 1) no adverse effect, 2)
    conditional no adverse effect, and 3) adverse
    effect.

63
No Adverse Effect
    (b) Finding of no adverse effect. The agency
official, in consultation with the Tennessee
SHPO, may propose a finding of no adverse effect
when the undertaking's effects do not meet the
criteria of paragraph (a)(1) of this section or
the undertaking is modified or conditions are
imposed, such as the subsequent review of plans
for rehabilitation by the Tennessee SHPO to
ensure consistency with the Secretary's standards
for the treatment of historic properties (36 CFR
part 68) and applicable guidelines, to avoid
adverse effects
64
No Adverse Effect
    (c) Consulting party review. If the agency
official proposes a finding of no adverse effect,
the agency official shall notify all consulting
parties of the finding and provide them with the
documentation specified in Sec. 800.11(e). The
Tennessee SHPO shall have 30 days from receipt to
review the finding.
65
No Adverse Effect
    (1) Agreement with finding. Unless the ACHP
is reviewing the finding pursuant to Sec.
800.5(c)(3), the agency official may proceed if
the Tennessee SHPO agrees with the finding. The
agency official shall carry out the undertaking
in accordance with Sec. 800.5(d)(1). Failure of
the Tennessee SHPO to respond within 30 days from
receipt of the finding shall be considered
agreement of the SHPO with the finding
66
Firewall
No Adverse Effect
No historic properties are adversely affected
(800.5(d)(1)) Agencies must retain records of
their findings of no adverse effect and make them
available to the public. The public should be
given access to the information when they so
request, subject to Freedom of Information Act
(FOIA) and other statutory limits on disclosure,
including the confidentiality provisions in
Section 304 of the NHPA.
Advisory Council on Historic Preservation
Working with Section 106 Users Guide
67
Firewall
No Adverse Effect
Belaboring the Obvious
To make a no adverse effect determination, you
must have identified at least one Historic
Property within the APE and found that the
project would not affect it adversely. If
instead, no Historic Properties were found, then
the appropriate finding is no historic
properties affected.
68
Documentation Standards
Sec. 800.11    Documentation Standards Finding
of no adverse effect
69
Documentation Standards
(1) A description of the undertaking, specifying
the Federal involvement, and its area of
potential effects, including photographs, maps,
and drawings, as necessary
70
Documentation Standards
(2) A description of the steps taken to identify
historic properties
71
Documentation Standards
(3) A description of the affected historic
properties, including information on the
characteristics that qualify them for the
National Register
72
Documentation Standards
(4) A description of the undertaking's effects
on historic properties
73
Documentation Standards
(5) An explanation of why the criteria of
adverse effect were found applicable or
inapplicable, including any conditions or future
actions to avoid, minimize or mitigate adverse
effects and
74
Documentation Standards
(6) Copies or summaries of any views provided by
consulting parties and the public.
75
Documentation Standards
Be sure to prepare this documentation and submit
it to all participants in the Section 106 review
process for review and comment.
76
CONFIDENTIALITY CONCERNS
77
Confidentiality Concerns
Authority to withhold information from the
public Section 304 of the NHPA
78
WHEN MAY YOU USE PHASED COMPLIANCE?
79
Phased Compliance
  • A Federal agency has the option under the 36 CFR
    800 regulation to assess effects to Historic
    Properties within an Area of Potential Effects
    using a phased approach similar to that used in
    making National Register eligibility
    determinations.

80
Questions
  • Did you notify all Consulting Parties of your
    finding of effects and invite their views on the
    matter
  •  
  • Yes_________ No_________

81
Questions
  • Did you make a good faith effort to obtain the
    written comments of all Consulting Parties
  •  
  • Yes_________ No_________

82
Questions
  • Did you apply the Criteria of Adverse Effect
    again in direct consultation with the State
    Historic Preservation Office and any tribe or
    other Consulting Party that attaches cultural or
    religious significance to the identified and
    designated Historic Property being reviewed
  •  
  • Yes_________ No_________

83
Questions
  • Did you take into account the formal findings of
    all Consulting Parties
  •  
  • Yes_________ No_________

84
Questions
  • Did you take into account the views of the public
  •  
  • Yes_________ No_________

85
Reality Check
  • Do not proceed until all of the answers to the
    preceding questions are Yes,

86
Again, by way of emphasis, the Regulation makes
it clear that adverse effect may be both direct
and indirect (secondary, cumulative and/or
reasonably foreseeable) (800.5(a)(1)). Federal
agencies should, therefore, project their effect
determinations into the foreseeable future in a
good faith attempt to assess the possibility for
indirect or cumulative effect. Although such an
exercise may at times prove difficult, the
Regulation allows the Federal agency no
alternative.
87
This type of primary and secondary effect
analysis is standard operating procedure for
National Environmental Policy Act review.
Federal agencies that use the National
Environmental Policy Act process regularly should
be comfortable employing it in Section 106
reviews.
88
Again, by way of emphasis, just as in the case of
defining the project Area of Potential Effects,
Federal agencies should assess adverse effect in
light of any and all characteristics of a
property that may qualify it as National Register
eligible (800.5(a)(1)). This means that Federal
agencies should use all four National Register
Criteria to evaluate significance. Historic
Properties may be National Register eligible
under more than one Criterion. In such cases,
undertakings that may not affect a propertys
integrity under one Criterion might well
adversely affect the same property under another
Criterion.
89
For example, a Federal agency may determine a
Nineteenth Century ferry operator's house along a
stream bank eligible under Criterion C for
architecture. At the same time, the Federal
agency may determine an adjacent and associated
historic archaeological site such as a ferry
crossing ruin situated along the stream bank
eligible under Criterion D for research
significance. Placing riprap along the stream
bank to stabilize it will not affect the
architectural characteristics of the house
(though it may affect its setting) but may well
affect the archaeological ruin adversely.
90
Conditional No Adverse Effect
  • If you have concurrence from the State Historic
    Preservation Officer and other Consulting Parties
    that your undertaking will not adversely affect
    Historic Properties, you have completed Section
    106 review UNLESS the agreed-to No Adverse Effect
    determination is conditional.

91
Conditional No Adverse Effect
Finding
  • Conditional No Adverse Effect

92
Conditional No Adverse Effect
    (b) Finding of no adverse effect. The agency
official, in consultation with the Tennessee
SHPO, may propose a finding of no adverse effect
when the undertaking's effects do not meet the
criteria of paragraph (a)(1) of this section or
the undertaking is modified or conditions are
imposed, such as the subsequent review of plans
for rehabilitation by the Tennessee SHPO to
ensure consistency with the Secretary's standards
for the treatment of historic properties (36 CFR
part 68) and applicable guidelines, to avoid
adverse effects
93
Conditional No Adverse Effect
  • A conditional no adverse effect determination
    means that, after due consultation, you have
    placed mutually agreed upon (Agency Official
    Tennessee SHPO) conditions or modifications upon
    the undertaking that will make the undertaking
    not adversely impactful.

94
WHAT ARE THE CONDITIONS THAT CREATE A CONDITIONAL
NO ADVERSE EFFECT FINDING?
95
Questions
  • Mutually-agreed-to Historic Preservation
    covenants attached to transfer documents/deeds
  •  
  • Yes_________ No_________

96
HISTORIC PRESERVATION COVENANT The grantee, his
heirs, successors, and assigns, will undertake
any work on this property herein described in
accordance with the recommended approaches in The
Secretary of the Interior's "Standards for
Treatment of Historic Properties" (National Park
Service 1983) (Standards) and will submit final
plans and specifications for such work to the
Tennessee Historical Commission for review and
certification that the proposed work meets the
Standards before beginning any work.
97
Questions
  • Mutually-agreed-to conditions which ensure
    avoidance or minimization of adverse effect
    through the re-design of the undertaking in
    accord with the secretary of the interiors
    standards
  •  
  • Yes_________ No_________

98
WHAT ARE THE SECRETARY OF THE INTERIORS
STANDARDS FOR REHABILITATION?
99
Standards for Rehabilitation
A property will be used as it was historically or
be given a new use that requires minimal change
to its distinctive materials, features, spaces,
and spatial relationships
100
Standards for Rehabilitation
The historic character of a property will be
retained and preserved. The removal of
distinctive materials or alteration of features,
spaces, and spatial relationships that
characterize a property will be avoided.
101
Standards for Rehabilitation
Each property will be recognized as a physical
record of its time, place, and use. Changes that
create a false sense of historical development,
such as adding conjectural features or elements
from other historic properties, will not be
undertaken.
102
Standards for Rehabilitation
Changes to a property that have acquired historic
significance in their own right will be retained
and preserved.
103
Standards for Rehabilitation
Distinctive materials, features, finishes, and
construction techniques or examples of
craftsmanship that characterize a property will
be preserved.
104
Standards for Rehabilitation
Deteriorated historic features will be repaired
rather than replaced. Where the severity of
deterioration requires replacement of a
distinctive feature, the new feature will match
the old in design, color, texture, and, where
possible, materials. Replacement of missing
features will be substantiated by documentary and
physical evidence.
105
Standards for Rehabilitation
Chemical or physical treatments, if appropriate,
will be undertaken using the gentlest means
possible. Treatments that cause damage to
historic materials will not be used.
106
Standards for Rehabilitation
Archeological resources will be protected and
preserved in place. If such resources must be
disturbed, mitigation measures will be
undertaken.
107
Standards for Rehabilitation
New additions, exterior alterations, or related
new construction will not destroy historic
materials, features, and spatial relationships
that characterize the property. The new work will
be differentiated from the old and will be
compatible with the historic materials, features,
size, scale and proportion, and massing to
protect the integrity of the property and its
environment.
108
Standards for Rehabilitation
New additions and adjacent or related new
construction will be undertaken in such a manner
that, if removed in the future, the essential
form and integrity of the historic property and
its environment would be unimpaired.
109
Questions
  • Mutually-agreed-to conditions which ensure
    avoidance or minimization of adverse effect
    through the placement of natural or artificial
    screening between the project and the historic
    property.
  •  
  • Yes_________ No_________

110
Consultation
  • You must offer all Consulting Parties due
    notification of your conditional or
    non-conditional no adverse effect finding and
    request their comments.

111
WHAT HAPPENS IF THE AGENCY OR APPLICANT FAILS TO
CARRY OUT THE AGREED TO CONDITIONS OR
MODIFICATIONS?
112
Firewall
No Adverse Effect With Conditions (FAILURE TO
CARRY OUT)
No historic properties are adversely affected
with conditions(800.5(d)(1)) Failure of the
agency to carry out the undertaking in accordance
with the finding requires the Agency Official to
reopen the Section 106 process and determine
whether the altered course of action constitutes
an adverse effect.
Advisory council on Historic Preservation
Working With Section 106 Users Guide
113
Or the Agency Official may find
114
Finding
Adverse Effect
115
    (2) Adverse effect. If an adverse effect is
found, the agency official shall consult further
to resolve the adverse effect pursuant to Sec.
800.6
116
LIMITED DELEGATION
A federal agency that funds, licenses, permits,
or approves an undertaking may take the full
responsibility for initiating Section 106 review
upon itself, or, it may, as it chooses, and
within certain strict statutory and regulatory
limitations, assign a portion of this initial
consultation responsibility to a non-federal
applicant for its funds, licenses, permits, or
approvals. After due notice from the agency of
its intention to delegate, the SHPO shall work
directly with such applicants UNTIL AND UNLESS A
DETERMINATION OF EFFECT BEYOND THAT OF NO
HISTORIC PROPERTIES ADVERSELY AFFECTED IS
RENDERED.
117
LIMITED DELEGATION
In these latter cases, where adverse effect upon
historic properties is determined, the Tennessee
SHPO will request the responsible federal agency
official to enter consultation. Then it becomes
the non-transferable responsibility of the
federal agency official to complete the Section
106 process itself. This is in keeping with the
Section 106 requirement that the agency head
afford the ACHP a reasonable opportunity to
comment upon its determination of project effect
upon cultural resources.
118
SUPPOSE THERE IS DISAGREEMENT WITH THE FINDING?
119
DISAGREEMENT WITH FINDING
If within the 30 day review period the Tennessee
SHPO or any consulting party notifies the agency
official in writing that it disagrees with the
finding and specifies the reasons for the
disagreement in the notification, the agency
official shall either consult with the party to
resolve the disagreement, or request the ACHP to
review the finding.
120
DISAGREEMENT WITH FINDING
The ACHP shall review the finding and provide the
agency official and, if the ACHP determines the
issue warrants it, the head of the agency with
its opinion as to whether the adverse effect
criteria have been correctly applied. An ACHP
decision to provide its opinion to the head of an
agency shall be guided by the criteria in
appendix A to this part. The ACHP will provide
its opinion within 15 days of receiving the
documented finding from the agency official. The
ACHP at its discretion may extend that time
period for 15 days, in which case it shall notify
the agency of such extension prior to the end of
the initial 15 day period. If the ACHP does not
respond within the applicable time period, the
agency official's responsibilities under Section
106 are fulfilled.
121
DISAGREEMENT WITH FINDING
If the final decision of the agency is to affirm
the initial finding of no adverse effect, once
the summary of the decision has been sent to the
ACHP, the Tennessee SHPO, and the consulting
parties, the agency official's responsibilities
under Section 106 are fulfilled.
122
36 CFR 800.11 SPECIFIED LEVELS OF SECTION
106 DOCUMENTATION FOR INTERMEDIATE CONSULTATION
123
  • FINDING OF NO ADVERSE EFFECT OR ADVERSE EFFECT.
    DOCUMENTATION SHALL INCLUDE
  • A description of the undertaking, specifying the
    Federal involvement, and its area of potential
    effects, including photographs, maps, and
    drawings, as necessary
  • A description of the steps taken to identify
    historic properties
  • A description of the affected historic
    properties, including information on the
    characteristics that qualify them for the
    National Register
  • A description of the undertaking's effects on
    historic properties
  •  An explanation of why the criteria of adverse
    effect were found applicable or inapplicable,
    including any conditions or future actions to
    avoid, minimize or mitigate adverse effects and
  •  Copies or summaries of any views provided by
    consulting parties and the public.

124
The results of successful Section 106
consultation
  • Approximately two-thirds of the remaining cases
    end at step three No Adverse Effect to Historic
    Properties.

125
You are nearing completion of Step Three.
126
PRACTICE SCENARIO
127
The Huey County Highway Department plans to use
funds from the Federal Emergency Management
Agency to repair the 1945 concrete, wood, and
steel bridge over the Frog Suck River. The
bridge was severely damaged by the Shonuff
Flood (Flood 714) that crested the river last
May. The County plans to replace broken, bent, or
washed away decking, rails, and I-beam
underpinnings and do extensive re-grading and
re-paving of the approaches on both sides of the
river. The County has hired the engineering firm
of Dewey, Swim n Lake (DSW) to facilitate
completion of environmental review, including
Section 106 review. DSW has contacted the Grace
State Historic Preservation Office to begin
Section 106 consultation, and has submitted
preliminary documentation to the Mudpuppy Tribe
of Indians as well.
128
The Cultural Resources Survey Report commissioned
by DSW identified the bridge as being National
Register eligible. Additionally, the survey
identified an intact pre-historic archaeological
site worthy of further testing located within one
of the bridge approaches. The County consulted
with the Grace State Historic Preservation Office
and other consulting parties . This consultation
resulted in a consensus determination that the
bridge was eligible and the archaeological site
was not.
129
  • What is the result of applying the Criteria of
    Adverse Effect to the project under review?
  • Which specific Criteria of Adverse Effect apply
    to this project?

130
ANSWERS
131
  • Demolition of the bridge constitutes an adverse
    effect.
  • Any physical destruction or damage of a Historic
    Property which would diminish its integrity for
    listing in the National Register of Historic
    Places currently or in the foreseeable future
    (the State Historic Preservation Office will be
    especially mindful of effects which make a
    Historic Property ineligible for listing in the
    National Register (currently or in the
    foreseeable future) (this includes seismic
    damage) 

132
End Section 106 Review here or go on to the next
step if your undertaking will affect an Historic
Property adversely?
133
END OF STEP THREE
134
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