A BEGINNERS GUIDE TO SUCCESSFUL COMPLETION OF THE SECTION 106 REVIEW PROCESS

1. A BEGINNERS GUIDE TO SUCCESSFUL COMPLETION OF THE SECTION 106 REVIEW PROCESS TENNESSEE STATE HISTORIC PRESERVATION OFFICE: REVIEW 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 Office’s 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. THE GUIDING FORCE THAT DRIVES THE SECTION 106 REVIEW PROCESS IS HISTORIC PRESERVATION

4. HISTORIC PRESERVATION

5. HISTORIC PRESERVATION What is Historic Preservation within a Section 106 context? The National Historic Preservation Act states: "Preservation" or "historic preservation" includes identification, evaluation, recordation, documentation, curation, acquisition, protection, management, rehabilitation, restoration, stabilization, maintenance, research, interpretation, conservation…and education and training regarding the foregoing activities or any combination of the foregoing activities.

6. Doing those things is what Section 106 of the National Historic Preservation Act is all about. Identification, Evaluation, Recordation, Documentation, Curation, Acquisition, Protection, Management, Rehabilitation, Restoration, Stabilization, Maintenance, Research, Interpretation, and Conservation of National Register of Historic Places Listed and Eligible Properties

7. THE NATIONAL HISTORIC PRESERVATION ACT OF 1966 AS AMENDED IN 1992 (NHPA)

8. NATIONAL HISTORIC PRESERVATION ACT OF 1966 AS AMENDED IN 1992 "In the face of ever-increasing extensions of urban centers, highways, and residential, commercial, and industrial development, …

9. NATIONAL HISTORIC PRESERVATION ACT OF 1966 AS AMENDED IN 1992 …the present governmental and nongovernmental Historic Preservation programs and activities are [CURRENTLY, 1966] inadequate to ensure future generations a genuine opportunity to appreciate and enjoy the rich heritage of our Nation."

10. SECTION 106 OF THE NHPA REMEDIED THAT INADEQUACY

11. SECTION 106 OF THE NATIONAL HISTORIC PRESERVATION ACT: PART ONE 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 of Historic Places.

12. SECTION 106 OF THE NATIONAL HISTORIC PRESERVATION ACT: PART TWO 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.

13. THE ESSENCE OF SECTION 106 REVIEW Section 106 of the National Historic Preservation Act requires Federal agencies that fund, license, permit, or approve programs, projects, and activities to take into account the effects of their undertaking upon significant architectural and archaeological properties listed in or eligible for listing in the National Register of Historic Places as they plan and carry out their undertakings.

14. THE ESSENCE OF SECTION 106 REVIEW This is a quite simple, forthright, and efficient process CODIFIED AT 36 CFR 800, complete with clearly defined STEPS and a logical PROGRESSION OF ACTIVITIES that allows the Federal agency or applicant for Federal assistance to RECEIVE HELP through CONSULTATION with a number of individuals and groups who are both knowledgeable and experienced.

15. SECTION 106 REVIEW IS A PLANNING PROCESS The Section 106 process is, at base, a planning process. Like any other planning process, it requires Federal agencies to: survey a specified geographic area (to identify Historic Properties eligible for listing in the National Register of Historic Places), evaluate (Historic Properties against National Register Of Historic Places criteria), and treat (any National Register-eligible Historic Properties identified) using both standard and innovative measures to avoid, minimize, or mitigate project adverse effects upon those properties.

16. 36 CFR PART 800

17. 36 CFR PART 800 36 CFR Part 800, which is the Federal regulation that specifies how U. S. GOVERNMENT AGENCIES comply with Section 106, designates all authorized participants in Section 106 reviews and delineates a FOUR-STEP PROCESS for successful completion of Section 106 review.

18. FEDERAL UNDERTAKINGS SUBJECT TO SECTION 106 REVIEW AS DEFINED AT 36 CFR 800 ALL FEDERAL FUNDING, LICENSING, PERMITTING, AND APPROVING PROJECTS, PROGRAMS, AND ACTIVITIES THAT MIGHT HAVE AN EFFECT UPON PROPERTIES LISTED IN OR ELIGIBLE FOR LISTING IN THE NATIONAL REGISTER OF HISTORIC PLACES ARE UNDERTAKINGS

19. 1) ALL FEDERAL FUNDING, LICENSING, PERMITTING, AND APPROVING PROJECTS, PROGRAMS, AND ACTIVITIES

20. 2) THAT MIGHT HAVE AN EFFECT UPON

21. 3) PROPERTIES LISTED IN OR ELIGIBLE FOR LISTING IN THE NATIONAL REGISTER OF HISTORIC PLACES

22. FEDERAL UNDERTAKINGS SUBJECT TO SECTION 106 REVIEW AS DEFINED AT 36 CFR 800 THESE FEDERAL PROJECTS, PROGRAMS, AND ACTIVITIES ARE DEFINED AS UNDERTAKINGS SUBJECT TO SECTION 106 REVIEW IF THEY MEET CERTAIN CRITERIA. THIS PRESENTATION WILL LIST THESE CRITERIA DURING THE DISCUSSION OF STEP ONE IN THE SECTION 106 REVIEW PROCESS CODIFIED AT 36 CFR 800.3

23. U. S. GOVERNMENT AGENCIES APPOINT AGENCY OFFICIALS TO MOVE UNDERTAKINGS SWIFTLY AND SUCCESSFULLY THROUGH THE SECTION 106 REVIEW PROCESS

24. U. S. GOVERNMENT AGENCIES • THE FEDERAL AGENCY OFFICIAL has the HIGHEST RESPONSIBILITY for completing the Section 106 review delineated at 36 CFR 800 process successfully. The agency official has specific authority to: • fund the project; • issue the license; • award the permit or approval; • make appropriate changes in a funded, licensed, or permitted activity to avoid or minimize project effect; • finance any mitigative measures needed to resolve adverse effect.

25. U. S. GOVERNMENT AGENCIES The Agency Official may also be a State, local, or tribal government official who has been delegated legal responsibility for compliance with Section 106 in accordance with Federal law.

26. U. S. GOVERNMENT AGENCIES The agency official should plan consultations appropriate to the scale of the undertaking and the scope of Federal involvement and coordinated with other requirements of other statutes, as applicable, such as the National Environmental Policy Act, the Native American Graves Protection and Repatriation Act, the American Indian Religious Freedom Act, the Archeological Resources Protection Act, and agency-specific legislation.

27. PARTICIPANTS IN SECTION 106 REVIEW

28. PARTIES WITH STANDING HAVE THE RIGHT TO PARTICIPATE IN SECTION 106 REVIEW

29. WHAT IS STANDING?

30. STANDING • A financial or other STAKE in the outcome of the undertaking • A possible injury caused by the undertaking OR by avoiding the undertaking • A possibility of relief from that injury

31. STANDING “The right to initiate or participate in a legal action.” “A demonstrated interest in the undertaking.”

32. STANDING Standing ultimately means the ability of a party to demonstrate to a Federal District Court sufficient connection to and possible harm from the federal undertaking being challenged to support that party's participation in the case. In the United States, the current doctrine is that a party cannot bring a challenge to a Federal action unless that party can demonstrate that he is (or will imminently be) harmed by the action, or lack of action, and that a Court Order could eliminate that harm. Otherwise, the Court will rule that the party "lacks standing" to bring the challenge.

33. THE RIGHT TO BE PARTICIPANTS • Agency Official – legal and financial responsibility for the project • ACHP – national mandate to ensure compliance with Section 106 • SHPOs – statewide mandate to protect historic properties • THPOs – religious and cultural interest on tribal land • Tribes – religious and cultural interest off tribal land • Local governments – police power jurisdiction • Applicants for Federal assistance – requests for funds, licenses, permits, or approvals • Property owners – real estate and financial stake in the project • Other groups or individuals with a stake in the project

34. 36 CFR 800.2 * = always ? = sometimes • PARTICIPANTS IN THE SECTION 106 REVIEW PROCESS • Agency Official * • Advisory Council on Historic Preservation ? • State Historic Preservation Officer * • Tribal Historic Preservation Officer ? • Indian Tribes or Native Hawaiian Organizations * • Representatives of Local Governments * • Applicants for Federal assistance ? • Property Owners ? • Additional Consulting Parties (parties with STANDING) ?

35. AGENCY OFFICIAL It is the statutory obligation of each Federal agency to fulfill the requirements of Section 106 and to ensure that a Federal AGENCY OFFICIAL with jurisdiction over an undertaking takes legal and financial responsibility for Section 106 compliance.

36. ADVISORY COUNCIL ON HISTORIC PRESERVATION The ACHP issues regulations to implement Section 106, provides guidance and advice on the application of the procedures in 36 CFR 800, and generally oversees the operation of the Section 106 process. The ACHP also consults with and comments to agency officials on individual undertakings and programs that affect historic properties.

37. STATE HISTORIC PRESERVATION OFFICER The State Historic Preservation Officer (SHPO) reflects the interests of the State and its citizens in the preservation of their cultural heritage. In accordance with section 101(b)(3) of the NHPA, the SHPO advises and assists Federal agencies in carrying out their Section 106 responsibilities and cooperates with such agencies, local governments and organizations and individuals to ensure that historic properties are taking into consideration at all levels of planning and development.

38. STATE HISTORIC PRESERVATION OFFICER AUTHORITY NHPA TITLE I Section 101 (16 US.C 470a) (3) It shall be the responsibility of the State Historic Preservation Officer to administer the State Historic Preservation Program and to--(I) consult with the appropriate Federal agencies in accordance with this Act on--(i) Federal undertakings that may affect historical properties; and (ii) the content and sufficiency of any plans developed to protect, manage, or to reduce or mitigate harm to such properties; and (J) advise and assist in the evaluation of proposals for rehabilitation projects that may qualify for Federal assistance.

39. TRIBAL HISTORIC PRESERVATION OFFICER For a tribe that has assumed the responsibilities of the SHPO for Section 106 on tribal lands under Section 101(d)(2) of the NHPA, the Tribal Historic Preservation Officer (THPO) appointed or designated in accordance with the NHPA is the official representative for the purposes of Section 106. The agency official shall consult with the THPO in lieu of the SHPO regarding undertakings occurring on or affecting historic properties ON TRIBAL LANDS.

40. INDIAN TRIBES Section 101(d)(6)(B) of the act requires the agency official to consult with any Indian tribe that attaches religious and cultural significance to historic properties that may be affected by an undertaking. This requirement applies regardless of the location of the historic property. Such Indian tribe shall be a consulting party.

41. REPRESENTATIVES OF LOCAL GOVERNMENTS A representative of a local government with jurisdiction over the area in which the effects of an undertaking may occur is entitled to participate as a consulting party. Under other provisions of Federal law, the local government may be authorized to act as the agency official for purposes of Section 106.

42. APPLICANTS FOR FEDERAL ASSISTANCE An applicant for Federal assistance or for a Federal permit, license, or other approval is entitled to participate as a consulting party as defined in this part. The agency official may authorize an applicant or group of applicants to initiate consultation with the SHPO and others, but remains legally responsible for all findings and determinations charged to the agency official.

43. PROPERTY OWNERS Certain individuals and organizations with a demonstrated interest in the undertaking may participate as consulting parties DUE TO THE NATURE OF THEIR LEGAL OR ECONOMIC RELATION TO THE UNDERTAKING OR AFFECTED PROPERTIES.

44. ADDITIONAL CONSULTING PARTIES (PARTIES WITH STANDING) Certain individuals and organizations with a demonstrated interest in the undertaking may participate as consulting parties DUE TO THE NATURE OF THEIR CONCERN WITH THE UNDERTAKING'S EFFECTS ON HISTORIC PROPERTIES.

45. THE ROLE OF THE PUBLIC IN SECTION 106 REVIEW

46. THE PUBLIC The agency official shall seek and consider the views of the public in a manner that reflects the nature and complexity of the undertaking and its effects on historic properties, the likely interest of the public in the effects on historic properties, confidentiality concerns of private individuals and businesses, and the relationship of the Federal involvement to the undertaking.

47. CONSULTATION

48. THE FEDERAL AGENCY OFFICIAL CONSULTS WITH THE OTHER PARTICIPANTS TO COMPLETE SECTION 106 REVIEW PROMPTLY AND SUCCESSFULLY

49. Consultation means the process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them regarding matters arising in the Section 106 process. The Secretary's “Standards and Guidelines for Federal Agency Preservation Programs pursuant to the National Historic Preservation Act” provide further guidance on consultation

50. THE FOUR STEP SECTION 106 REVIEW PROCESS