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
• 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
• E
s
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 review
To resolve disputes
When necessary, to ensure purposes of Section 106
and NHPA are met
Short of formal participation may
Provide 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:
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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)
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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
•
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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 early1900s 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 opinion
The 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.