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Successful Approaches in Preparing Convincing Section 106 Effect Determinations

Description:

Concluding Section 106 (of the National Historic Preservation Act of 1966) has ramifications on other environmental requirements in transportation project development including NEPA, Section 4(f) analyses, and environmental permits. The outcome of the Section 106 consultation process is an effect determination, i.e., what effect will a federal action have on historic properties (eligible for or listed in the National Register of Historic Places). Federal regulation (36 CFR 800) makes a distinction between undertakings that adversely affect historic properties and those that do not (i.e., no-effect and no-adverse-effect findings). The basis for this distinction is whether a federal action will alter or diminish those properties that make a property eligible for listing in the National Register of Historic Places. In other words, not every alteration or change constitutes an adverse effect from a Section 106 perspective. Making that argument, however, requires both a detailed understanding of regulatory definitions and skill in arguing the case. This research would identify and document examples of "making the case" for no-effect and especially no-adverse effect determinations, both of which are the most favorable Section 106 findings for DOTs with direct positive applications in both NEPA and 4(f) analyses.

Section 106 consultation is a keystone element of transportation project development among all state DOTs and their federal agency partners such as FHWA and the U.S. Army Corps of Engineers. Improving the skill of Section 106 practitioners in making convincing effect determinations will make environmental analysis and permitting less burdensome and more efficient.

While Section 106 training is available to state DOT cultural resources practitioners, it often covers the general requirements of law and regulation, focuses on the nuances of writing Memoranda of Agreement, or specialized topics like tribal consultation. A focus on the content and skill needed in making convincing effect determinations would supplement existing training on a topic that rarely deserves focused attention.

This research is directly responsive to Goal No. 1 of AASHTO’s Standing Committee on the Environment and Sustainability (CES): “provide technical support to members to increase their capacity to efficiently and reliably deliver environmentally sound transportation programs and services”, especially to “provide various forums and facilitate member information peer exchange of successful practices …”.

Objective:

The objective of this research is to identify successful practices in making Section 106 no-effect and no-adverse-effect determinations. This will be accomplished by identifying examples of successful practices among state DOTs and synthesizing those findings in a manner that is implementable among cultural resources practitioners.

Benefits:

Some of the most skilled Section 106 practitioners are reaching the end of their careers and newer employees may not possess the equivalent knowledge, skill and ability that their more senior peers have in making convincing effect determinations. Further, many Section 106 practitioners at both state DOTs and their SHPO partners have imprecise, colloquial understanding of the regulatory definitions involved in making effect determinations. This research is urgent for purposes of succession planning among state DOTs and for improving the accuracy and quality of a key environmental decision in project development.

Tasks:
  1. Define the regulatory basis and definition for effect, especially pertaining to alteration vs. diminishment of historic characteristics, tests of integrity, and any situations where a certain effect determination is prescribed.
  2. Identify and collect examples of successful no-effect and no-adverse-effect determinations developed by state DOTs and concurred with by the DOT’s respective State Historic Preservation Officer (SHPO) relative to the following types of historic properties: i. historic buildings and bridges ii. historic districts iii. significant archaeological sites iv. historic battlefields v. traditional cultural properties
  3. Interview selected DOT cultural resources practitioners for recommendations about making convincing effect determinations.
  4. Synthesize the aspects of the examples especially pertaining to the basis of the no-effect or no-adverse-effect finding. What are the aspects of fact, application of regulatory definitions, and logic that made these determinations convincing to the SHPO?
  5. The results of the research should be presented both as a publication of the National Academies and as the basis for a webinar or training program to disseminate the results to DOTs.
Implementation:

This research would primarily be implemented by state DOT environmental programs, including cultural resources, NEPA, 4(f) and permit staff, implemented through review and adoption of research results and participation in a webinar prepared for this project. Training workshops and peer exchanges among practitioners would also be effective in implementing the identified successful practices among state DOTs.

Other organizations that might be interested in the research results and could help support implementation include:

  • Federal Highway Administration
  • Federal Transit Administration
  • Federal Railway Administration
  • Advisory Council on Historic Preservation
  • State Historic Preservation Officers
Sponsoring Committee:AME60, Historic and Archeological Preservation in Transportation
Research Period:12 - 24 months
RNS Developer:Antony F. Opperman Virginia Department of Transportation, Environmental Division Mobile: 757-254-9045 Email: a.opperman@vdot.virginia.gov
Source Info:Supporting committees:
• AASHTO Standing Committee on Environment and Sustainability (CES)
• TRB Standing Committee on Historic and Archaeological Preservation in Transportation (AME60)
Date Posted:01/12/2021
Date Modified:01/25/2021
Index Terms:Historic preservation, Historic sites, Project management, Construction projects, Training,
Cosponsoring Committees: 
Subjects    
History
Transportation (General)
Policy
Law
Environment

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