AASHTO PH06-2016 AASHTO Practitioner's Handbook - Consulting Under Section 106 of the National Historic Preservation Act (Revision 2).pdf

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1、Consulting Under Section 106 of the National Historic Preservation Act 1 AASHTO PRACTITIONERS HANDBOOK The Practitioners Handbooks are produced by the Center for Environmental Excellence by AASHTO. The Handbooks provide practical advice on a range of environmental issues that arise during the planni

2、ng, development, and operation of transportation projects. The Handbooks are primarily intended for use by project managers and others who are responsible for coordinating compliance with a wide range of regulatory requirements. With their needs in mind, each Handbook includes: key issues to conside

3、r; a background briefing; practical tips for achieving compliance; and a list of reference materials. In addition, key regulations, guidance materials, and sample documents for each Handbook are posted on the Centers web site at http:/environment.transportation.org. American Association of State Hig

4、hway and Transportation Officials Center for Environmental Excellence by AASHTO CONSULTING UNDER SECTION 106 OF THE NATIONAL HISTORIC PRESERVATION ACT This Handbook provides recommendations for complying with Section 106 of the National Historic Preservation Act during the environmental review proce

5、ss for transportation projects. Issues covered in this Handbook includes: Preparing for Section 106 consultation Defining an area of potential effects (APE) Inviting consulting parties Evaluating eligibility for the National Register of Historic Places Determining adverse effects Resolving adverse e

6、ffects Developing memoranda of agreement (MOAs) and programmatic agreements (PAs) Using alternative procedures to satisfy Section 106 requirements 06 August 2016Copyright 2016, Center for Environmental Excellence by AASHTO (American Association of State Highway and Transportation Officials). All Rig

7、hts Reserved. This book, or parts thereof, may not be reproduced in any form without written permission of the publisher. Printed in the United States of America. This material is based upon work supported by the Federal Highway Administration under Cooperative Agreement No. DT- FH61-07-H-00019. Any

8、 opinions, findings, and conclusions or recommendations expressed in this publication are those of the Author(s) and do not necessarily reflect the view of the Federal Highway Administration. 2016 by the Center for Environmental Excellence by AASHTO. All rights reserved. Duplication is a violation o

9、f applicable law.Consulting Under Section 106 of the National Historic Preservation Act 1 Overview This Handbook provides recommendations for complying with Section 106 of the National Historic Preservation Act during the environmental review process for transportation projects. Section 106 of the N

10、HPA requires Federal agencies to take into account the effects of their actions on historic properties. 1The NHPA created the Advisory Council on Historic Preservation (ACHP) and authorized the ACHP to issue regulations governing the implementation of Section 106. These regulations are set forth in

11、36 CFR Part 800. Cross-references to the Section 106 regulations are included throughout this Handbook. The Section 106 process seeks to incorporate historic preservation principles into project planning through consultation between a Federal agency and other parties with an interest in the effects

12、of the Federal agencys action on historic properties. Section 106 consultation includes four main steps: initiating consultation; identifying historic properties that could be affected by the undertaking; assessing the undertakings effects on historic properties; and seeking ways to avoid, minimize,

13、 or mitigate any adverse effects on those properties. The intent of this Handbook is to assist project managers and Section 106 practitioners in carrying out Section 106 consultation in coordination with the National Environmental Policy Act (NEPA) for transportation projects. This Handbook focuses

14、primarily on Section 106 consultation for highway, transit, and passenger rail projects that involve funding or other approvals by the Federal Highway Administration (FHWA), Federal Transit Administration (FTA), or Federal Railroad Administration (FRA). Many of the suggestions in this Handbook also

15、can be applied to other types of projects. The Reference Materials section at the end of the Handbook includes additional sources of introductory and advanced information on Section 106. Background Briefing This section provides an overview of key terms and concepts used in Section 106 consultation

16、under the NHPA. The topics covered in this section are discussed in more detail in the Practical Tips section. Agencies Involved in Section 106 Consultation. The Section 106 regulations define roles for various agencies in the Section 106 consultation process. The Federal Agency is the agency with t

17、he responsibility to carry out Section 106 consultation for an undertaking. In this handbook, the term “Federal agency” also includes any state that has assumed responsibilities of a U.S. Department of Transportation (USDOT) agency for Section 106 compliance as part of an assignment agreement pursua

18、nt to 23 USC 326 or 327. The State Historic Preservation Officer (SHPO) is an official appointed or designated by the Governor of a state to administer the states historic preservation program. The SHPO consults with Federal agencies and provides comments at multiple points in the Section 106 proces

19、s. The Tribal Historic Preservation Officer (THPO) is a tribal official appointed or designated by a federally recognized Indian tribe to carry out the responsibilities of the SHPO for purposes of Section 106 compliance on tribal lands. Not all tribes have designated a THPO. Where a THPO has not bee

20、n designated and approved to act in lieu of the SHPO pursuant to Section 101(d)(2) of the NHPA, the Federal agency consults with the SHPO and with the tribal official responsible for historic preservation consultation. The Advisory Council on Historic Preservation (ACHP) is an independent Federal ag

21、ency with responsibility 1 54 USC 306108. Prior to December 19, 2015, Section 106 was codified at 16 USC 470f. 2016 by the Center for Environmental Excellence by AASHTO. All rights reserved. Duplication is a violation of applicable law.2 Consulting Under Section 106 of the National Historic Preserva

22、tion Act for issuing the Section 106 regulations and overseeing compliance with Section 106. The ACHP does not routinely participate in Section 106 consultation for individual projects, but the ACHP has the right to do so and can submit comments at any time. The Keeper of the National Register of Hi

23、storic Placesan office within the National Park Service (NPS) of the U.S. Department of the Interiorestablishes the criteria for determining eligibility for the National Register. The Keeper also is responsible for resolving disputes about eligibility. Consulting Parties. The Section 106 process inv

24、olves consultation with the SHPO/THPO as well as other consulting parties. Entitles that are entitled to serve as consulting parties (often called “by-right” consulting parties) include: the applicable SHPO and/or THPO; Indian tribes and Native Hawaiian organizations that attach religious and cultur

25、al significance to historic properties that may be affected by an undertaking (whether on or off tribal lands); representatives of local governments with jurisdiction over areas that may be affected by the project; and applicants for Federal assistance, licenses, and other approvals. 2 In addition,

26、the Federal agency may invite other entities with a “demonstrated interest in the undertaking” to participate as consulting parties.3 Examples include local historic preservation officials, historic preservation groups, community organizations, individual property owners, and other stakeholders. Ste

27、ps in Section 106 Consultation. The Section 106 consultation process includes four main steps: initiating consultation, which includes inviting consulting parties to participate in the process; determining the projects area of potential effects (APE) and identifying any historic properties within th

28、e APE that are listed in or eligible for the National Register of Historic Places; determining whether the project will have an adverse effect on any historic properties that are listed in or eligible for the National Register; and resolving any adverse effects on those resources, typically through

29、execution of a Memorandum of Agreement (MOA) or a Programmatic Agreement (PA). In general, these steps are completed sequentially. The Section 106 regulations do provide some flexibility to combine steps, as long as the Federal agency and SHPO/THPO agree and members of the public still have an adequ

30、ate opportunity to express their views on the undertaking. 4 Definition of “Consultation.” The concept of consultation is at the heart of the Section 106 process. Consultation is defined in the Section 106 regulations as a “process of seeking, discussing, and considering the views of other participa

31、nts, and, where feasible, seeking agreement with them regarding matters arising in the Section 106 process.” 5Many different kinds of activities fall within this broad definition. Consultation on some projects involves numerous face-to-face meetings; on others, it may rely more heavily on an exchang

32、e of documents. The Section 106 regulations state that consultation methods should be “appropriate to the scale of the undertaking and the scope of Federal involvement” in that undertaking. 6 Definition of “Undertaking.” Section 106 applies to any Federal undertaking. The Section 106 regulations def

33、ine an undertaking as a 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; and those requiring a Federal permit,

34、license or approval. 7A transportation project that is federally funded, or requires any Federal permit or approval, meets the definition of an undertaking and therefore requires Section 106 consultation. Definition of “Historic Property.” Section 106 requires consultation regarding the effects of t

35、he undertaking on historic properties. The term “historic property” is defined to include “any prehistoric or historic district, site, building, structure, or 2 36 CFR 800.2(c)(1)-(4). 3 36 CFR 800.2(c)(5). 4 36 CFR 800.3(g). 5 36 CFR 800.16(f). 6 36 CFR 800.2(a)(4). 7 36 CFR 800.16(y). 2016 by the

36、Center for Environmental Excellence by AASHTO. All rights reserved. Duplication is a violation of applicable law.Consulting Under Section 106 of the National Historic Preservation Act 3 object included in, or eligible for inclusion in, the National Register of Historic Places,” including “properties

37、 of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization.” 8Thus, this term includes: properties from the prehistoric era, as well as the historic era; archeological resources, as well as above-ground resources; properties that are eligible for the Nationa

38、l Register, as well as those that are listed in the National Register; and properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization, if those properties are listed in or eligible for the National Register. Definition of “Eligible.” The term “elig

39、ible” includes properties that have been formally determined eligible by the Keeper of the National Register, as well as all other properties that meet the National Register criteria for eligibility.9 For purposes of Section 106, there is no distinction between listed and eligible properties. Proper

40、ties are not presumed to have greater significance simply because they are listed in the National Register. Definitions of “Indian Tribe” and “Native Hawaiian Organization.” Section 106 includes specific requirements regarding consultation with Indian tribes and Native Hawaiian organizations. 10An I

41、ndian tribe is defined as an “Indian tribe, band, nation, or other organized group or community, including a Native village, Regional Corporation or Village Corporation. which is rec- ognized as eligible for the special programs and services provided by the United States to Indians because of their

42、status as Indians.” A Native Hawaiian organization includes “any organization which serves and represents the interests of Native Ha- waiians; has as a primary and stated purpose the provision of services to Native Hawaiians; and has demonstrated expertise in aspects of historic preservation that ar

43、e significant to Native Hawaiians.” 11For simplicity, this handbook uses “Indian tribe” or “tribe” to include both Indian tribes and Native Hawaiian organizations. Review Times. The Section 106 regulations establish time periods for the SHPO/THPO to review findings or determinations at certain point

44、s during the Section 106 process. The review period is measured from the SHPO/THPOs receipt of the request for its review of the finding or determination. If the SHPO/THPO fails to respond within the time period defined in regulation, the Federal agency can proceed in accordance with its own finding

45、 or can choose to consult with the ACHP in lieu of the SHPO/ THPO. 12The regulations also define periods for the ACHP itself to provide comments. Specific review periods are discussed below in the context of individual steps in the Section 106 process. Consultation vs. Concurrence. The Section 106 r

46、egulations require the Federal agency to make eligibility and effects findings in consultation with the SHPO/THPO; they do not require the Federal agency to obtain the SHPO/THPOs concurrence in those findings. The regulations prescribe steps that should be followed when a SHPO/THPO disagrees with a

47、Federal agencys findings. (See Practical Tips.) If there is a disagreement between a Federal agency and a SHPO on an eligibility issue, the issue can be elevated to the Keeper of the National Register for a final decision. Timing of Consultation. Section 106 consultation must be initiated early in t

48、he undertakings planning, so that a broad range of alternatives may be considered during the planning process for the undertaking. Section 106 consultation must be completed before the Federal agency issues any required license, approval, or permit, and before the Federal agency approves the expendi

49、ture of funds for implementation of the project. The Federal agency can approve the expenditure of funds only for non-destructive planning activities prior to completion of the Section 106 process. 13 Confidentiality of Historic Resource Information. Section 304 of the NHPA states that information about the “location, character, or ownership” of a historic resource shall be withheld from public disclosure if the Federal agency or SHPO/THPO finds that disclosure may (1) cause a significant invasion of privacy; (2) risk harm t