ODOT’s Section 106 Training

1. ODOT’s Section 106 Training • This class does not include a detailed discussion of ODOT’s Preliminary Development Process and how it relates to cultural resources. • It is a Section 106 process overview and a brief NR eligibility overview. • This class is a consultant prequalification requirement. • The CR Manual (ODOT 2004) includes information on ODOT’s approach and overall direction regarding cultural resources. • When you are notified that you have successfully completed this class, you may submit your prequalification application to ODOT’s Office of Consultant Services.

2. Section 106 36 CFR Part 800 Protection of Historic Properties

3. What is Section 106? Section 106 of the National Historic Preservation Act (16 U.S.C. 470f) says . . . “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 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.”

4. Section 106 Regulations • Regulations at 36 CFR Part 800 provide details on how agencies comply with Section 106 • There have been minor changes to regulations that took effect in 1999

5. ODOT’s Section 106 Programmatic Agreement • Executed July 17, 2006 • Signed by ACHP, FHWA, SHPO & ODOT. • Broad responsibilities delegated to ODOT, which functions on behalf of FHWA. • It is ODOT’s Section 106 Process. • All Section 106 reviews must come to the Office of Environmental Services for review and processing (except CE Exempt actions). • SHPO receives nearly every finding issued by ODOT. • This PA supersedes the minor projects MOU that is in the Cultural Resources Manual (2004).

6. Participants in Sec. 106 Process • Federal agencies • Advisory Council on Historic Preservation • Consulting parties • Public

7. Participants: Federal agencies • Federal agency is responsible for complying with Section 106 and making all decisions required for compliance. • Federal agency can authorize applicants for Federal assistance, licenses, permits, or approvals to initiate process, but agency is still legally responsible for all findings and determinations.

8. Participants: Federal agencies • The definition of “Federal agency” includes local and state governments that have been delegated responsibility for compliance with Section 106. • Some state agencies (such as ODOT) have received such responsibility via programmatic agreements.

9. Participants: Advisory Council on Historic Preservation • It is an independent Federal agency composed of President-appointed council and professional staff. • Issues regulations, guidance, and advice on Section 106 compliance and oversees Section 106 process. • Consults with and provides comments to Federal agencies on the effect of programs and undertakings on historic properties.

10. Participants: Consulting parties • State Historic Preservation Office • Local governments and applicants for federal assistance, permits, licenses, and approval • Federally recognized Native American Indian tribes and Native Hawaiian organizations • Individuals/organizations with demonstrated legal, economic, or preservation interest who ask to participate, as agreed to by FHWA, ODOT, SHPO, and Council • Other parties agreed to by FHWA, ODOT, SHPO, and Council

11. Consulting Parties: State Historic Preservation Officer • SHPO advises and assists Federal agencies • SHPO advises and assists other agencies that have delegated authority, such as ODOT. • Agreement between FHWA/ODOT and SHPO can, in many cases, conclude process • When multiple states involved, SHPOs may designate a lead SHPO

12. Participants: The public • Public participation is important. • Basic requirement of Sec. 106 is to provide information on effects to historic properties and seek public input. • Public views are “essential to informed Federal decision making.” • Agencies may use established public involvement procedures where appropriate (e.g, NEPA public involvement process). • Public may provide views on their own initiative.

13. Documentation • Agency must ensure that all determinations, findings, and agreements reached through the Section 106 process are supported by adequate documentation to enable anyone, including the public, to understand the basis of all decisions. • 36 CFR Section 800.11 provides details on documentation standards and guidance on the adequacy of documentation.

15. Step I:Initiate the Section 106 process • Establish undertaking • Coordinate with other reviews • Identify consulting parties • Plan to involve the public • FHWA & ODOT use the NEPA public involvement process to achieve this Sec. 106 goal.

16. Establish Undertaking • FHWA & ODOT must determine: • whether its action meets the definition of undertaking in the National Historic Preservation Act • And, if so, whether it is a type of activity that has potential to affect historic properties • This is a unilateral agency determination, but Council may issue advisory opinion

17. Undertaking Definition: “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; those requiring a Federal permit, license or approval; and those subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency.” (36 CFR Section 800.16(y))

18. Undertaking (cont.) • Remember that the definition of an undertaking is necessarily broad. • It is NOT determined solely on funding. • A 100% State funded project that requires a federal permit (such as a waterway permit from the Army Corps Of Engineers), or requires a federal agency approval or license would still be subject to Sec. 106 review and coordination under 36 CFR Part 800.

19. Conclusion of Step I • If no undertaking or if undertaking has no potential to cause effects to historic properties, the Sec. 106 process is complete. • Document this finding to respond to questions or inquiries by public or other parties. • If undertaking could cause effects, go to next step.

20. Historic Property • Definition: “…means any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register of Historic Places maintained by the Secretary of Interior. This term includes artifacts, records, and remains that are related to and located within such properties. The term includes properties of traditional religious and cultural importance to an Indian tribe …and that meet the National Register criteria.” (36 CFR Section 800.16(l)(1))

21. Step I: Initiate Section 106 Process Establish undertaking Identify appropriate SHPO/THPO Plan to involve the public Identify other consulting parties No Undertaking/No Potential To Cause Effects Public involve-ment Undertaking Might Affect Historic Properties

22. Step II: Identify Historic Properties • Determine scope of efforts • Identify historic properties • Evaluate historic significance (National Register status)

23. Determining scope of effort • FHWA & ODOT consult with SHPO to • determine and document the area of potential effects • review existing information about historic properties • seek information about parties likely to have knowledge of or concerns about the area

24. Area of Potential Effects Definition from 36 CFR Section 800.16(d): “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 APE will be informally based on the size, scope, context, and visual intrusiveness of a project. • In ODOT’s process, “APE” basically equates with “Study Area.”

25. Flexibility in Identification Effort FHWA & ODOT efforts must consider: • Magnitude and nature of undertaking • Degree of Federal involvement • Past studies • Nature and extent of potential effects • Likely nature and location of historic properties • Applicable standards and guidelines • Confidentiality concerns (archaeology sites)

26. Evaluation of Significance • Is the property already listed in the National Register of Historic Places? • If not, apply National Register criteria to determine eligibility. • Have to have consensus determination of eligibility. • Properties have to have integrity to be eligible.

27. National Register of Historic Places • It is a listing of resources identified as worthy of recognition and preservation. • It has a nomination process distinct from 106 evaluation decision and process • Threshold tests: Age and Integrity • Four Eligibility Criteria: significance for A: events in history B: significant person or group of people C: architecture, construction, or aesthetic qualities D: archaeology (ability to yield important information)

28. Examples of Properties on the National Register of Historic Places • Ohio Stadium, Columbus • Criterion A and C • Ohio Theatre, Columbus • Criterion A and C

29. 01 • Ulysses S. Grant’s boyhood home, Brown County • Criterion B • German Village Historic district, Columbus • Criterion C

30. Agler-LaFollette House, Columbus • Criterion C • Shrum (Campbell) Mound, Columbus • Criterion D

31. Other NRHP sites • Other properties can be included on the NRHP besides buildings and archaeological sites. • Eden Park Water Tower, Cincinnati • Inverness Golf Course, Toledo • G. A. Boeckling paddlewheel steam boat • Objects like old National Road mile markers • First concrete street in the nation in Bellefontaine • Cincinnati gas street lamps • Bridges, train stations, factories, lighthouses, cemeteries

32. NRHP Definition of Integrity • It is the authenticity of a property’s historic identity, based on surviving physical characteristics. • It is a composite of seven qualities: * Location * Design * Setting * Materials * Workmanship * Feeling * Association

33. NRHP Integrity (cont.) • Integrity enables a property to illustrate significant aspects of its past. • A property must resemble its historic appearance, retaining physical materials, design features & aspects of construction. • For archaeological resources, its based on the degree to which remaining evidence can provide important information. • All seven do not need to be present for eligibility as long as the overall sense of time & place is evident. • A resource can be important to a community, but unless it has a certain amount of integrity, it CANNOT be considered eligible for the NRHP.

34. NRHP Property Boundaries • NR boundaries are needed to determine EFFECT in Sec. 106, not ELIGIBILITY! • We may never need to have a boundary determination for an eligible property. • Boundaries are determined based on what makes the property eligible under the NRHP criteria.

35. Conclusion of Step II After historic properties have been identified: • ODOT & FHWA apply definition of effect: “alteration to the characteristics of a historic property qualifying it for inclusion in or eligibility for the National Register” • ODOT makes a formal finding of either “no historic properties affected” or “historic properties affected”

36. “No Historic Properties Affected” Finding • Appropriate when: • ODOT and FHWA have determined that no historic properties are present in the APE; or • there are historic properties present but the undertaking will not have any effect on them

37. Review of “No Historic Properties Affected” Finding • ODOT must provide documentation to the SHPO, notify consulting parties, and make documentation available to the public. • SHPO may disagree with ODOT and FWHA, triggering next step • If no objection, Section 106 compliance is complete

38. Step II: Identify Historic Properties Determine scope of efforts Identify historic properties Evaluate historic significance No Historic Properties Affected Public involve-ment Historic Properties Are Affected

39. Step III: Assess Adverse Effects • If historic properties are affected: -FHWA and ODOT notify consulting parties and invite their views -ODOT applies criteria of adverse effect and notifies SHPO - ODOT and FHWA must consider views provided by other consulting parties & public

40. Criteria of Adverse Effect • Adverse effect occurs when effect of undertaking causes the integrity of a historic property to be diminished • ODOT and FHWA must: • consider both direct and indirecteffects • consider reasonably foreseeable effects: cumulative, later in time, or at a distance • consider all qualifying characteristics of a property

41. Examples of Adverse Effect • physical destruction or damage • alteration not consistent with the Secretary of the Interior’s Standards for Rehabilitation • relocation • change of use or change to physical features of a property’s setting • visual, atmospheric, or audible intrusions • neglect resulting in deterioration

42. Conclusion of Step III • ODOT can propose a “No Adverse Effect” finding and notify consulting parties. If no objection by SHPO, Sec. 106 is complete. • SHPO can respond with a request for changes to the undertaking in order to avoid an adverse effect. If ODOT and FHWA agree, Sec. 106 is complete. • If SHPO or another party disagrees, FHWA either resolves or asks the Council to review. • ODOT and FHWA must keep record of finding.

43. Step III: Assess Adverse Effects Apply criteria of adverse effect No Historic Properties Adversely Affected Public involve-ment Historic Properties Are Adversely Affected

44. Step IV: Resolve adverse effects • ODOT can propose an “adverse effect” finding to SHPO • ODOT and FHWA continue consultation with SHPO and other consulting parties to explore alternatives that may avoid, minimize, and/or mitigate adverse effects

45. Agency Notification to Council • For alladverse effect findings, the Federal agency must notify the Council by providing Documentation for Consultation given to consulting parties, which includes description of: • undertaking and APE • identification steps and affected historic properties • project effects and why the criteria of adverse effect are applicable • views of consulting parties and public

46. Agency Invitation to the Council to Participate • The Federal agency notification to the Council must include an invitation to participate in consultation when: • the Agency wants Council involvement • a National Historic Landmark is adversely affected • a Programmatic Agreement is proposed

47. Council Decision to Participate in Resolution of Adverse Effects • Council has 15 days to respond when notified of project by the Federal agency or requested to enter consultation by another party • When entering process,Council now must: • document that criteria for Council involvement are met • advise the Federal agency or agency with delegated authority, such as ODOT

48. Public Participation During Resolution of Adverse Effects • FHWA and ODOT must seek views of the public • To resolve adverse effects, FHWA’s and ODOT’s public involvement efforts have to take into account: • the magnitude of undertaking and • the nature of its effects upon historic properties • the likely effects on historic properties • public participation efforts at earlier steps • confidentiality concerns (archaeology sites)

49. Conclusion of Step IV • If FHWA, ODOT, SHPO and Council agree on how adverse effects will be resolved, they execute a Memorandum of Agreement. • The MOA is prepared and it defines the steps taken to mitigate the adverse effect. • When the Council does not participate in consultation, the Federal agency must submit a copy of executed MOA to the Council with appropriate documentation to finish Sec. 106. • Federal agency must ensure the undertaking is carried out in accordance with the MOA.

50. Memorandum of Agreement • Execution of MOA is required among FHWA, SHPO, ODOT, and local agency with legal involvement, such as a City or County. • Additional participants in MOA could be a local historical society, Federally recognized Indian tribe, community organization, or private citizen. • All are represented in the MOA that they have participated in the MOA consultation process.