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1. THE FOUR STEP SECTION 106 PROCESS: STEP ONETENNESSEE STATE HISTORIC PRESERVATION OFFICEREVIEW 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. INTRODUCTION

4. Initiate Section 106 Review Step One

5. Step One All Federal agencies and applicants for Federal assistance that propose projects, programs, and activities that might affect Historic Properties in Tennessee must complete this step.

6. It is the Federal Agency Official alone that begins the Section 106 review process (800.3). The Agency Official ultimately decides whether the project, program, or activity is an undertaking as defined in the Regulation (36 CFR 800.3(a) and 800.9(a)) that has the potential to cause effects to Historic Properties (36 CFR 800.5). The Agency Official, however, does not make these decisions in a vacuum.

7. The 36 CFR 800 Regulation directs each Federal agency to base these decisions upon the outcome of consultation. The agency first must refer to the strict statutory and regulatory definitions of an undertaking found at 36 CFR 800. Then, the agency must rely upon its own regulations, system-wide best practices, and standard operating procedures to refine that definition. Then the agency must consult with the appropriate SHPO and other Consulting Parties to inform the final decision.

8. QUESTIONS YOU SHOULD ANSWER BEFORE BEGINNING STEP ONE

9. Questions: Step One: Initiate The Section 106 Process: • Is the project under review an "Undertaking" as defined in the National Historic Preservation Act and in the 36 CFR 800 Regulation? • What is the Federal agency's mission as demonstrated in the purpose and need of the project under review?

10. Questions: • What is the project’s possible Area of Potential Effects as defined in the Act and in the 36 CFR 800 Regulation? • What is the size and nature of the undertaking as defined in the 36 CFR Part 800 Regulation? • What is the appropriate degree of Federal involvement in the Section 106 process as defined in the 36 CFR 800 Regulation? .

11. Questions: • What is the likelihood of identifying Historic Properties within the Area of Potential Effects? • What is the nature and extent of potential effects to Historic Properties as defined in the Criteria of Adverse Effect codified at 36 CFR 800.5? • Who is the appropriate State Historic Preservation Officer/Tribal Historic Preservation Officer as defined at 36 CFR 800.2? .

12. Questions: • How do you plan to involve the public? • Who are the other likely Consulting Parties? • Do you plan to meld the Section 106 review process into the National Environmental Policy Act process, a previously executed Programmatic Agreement, or other counterpart process reviewed and approved by the ACHP? .

13. Things to Keep In Mind: What is the appropriate degree of Federal involvement as defined in the Regulation? 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.

14. WHAT IS MEANT BY SECTION 106 “SCALE” AND “SCOPE”?

15. Section 106 “Scale” and “Scope” is comparable to NEPA “Context” and “Intensity”

16. Things to Keep In Mind: • 40 CFR 1508.27 requires agency official considerations of both context and intensity: • (a) Context. This means that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality. Significance varies with the setting of the proposed action. For instance, in the case of a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole. Both short- and long-term effects are relevant.

17. Things to Keep In Mind: Here, context involves the close relationship between the proposed project and known or as-yet-unknown historic properties.

18. Things to Keep In Mind: • 40 CFR 1508.27 requires agency official considerations of both context and intensity: • (b) Intensity. This refers to the severity of impact. Responsible officials must bear in mind that more than one agency may make decisions about partial aspects of a major action. The following issues should be considered in evaluating intensity:

19. Things to Keep In Mind: • Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial. • The degree to which the proposed action affects public health or safety. • Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.

20. Things to Keep In Mind: • The degree to which the effects on the quality of the human environment are likely to be highly controversial. • The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks. • The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.

21. Things to Keep In Mind: • Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts. • The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources.

22. Things to Keep In Mind: • The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973. • Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.

23. Things to Keep In Mind: 40 CFR 1508.27 requires agency official considerations of both context and intensity: Intensity also refers to the level of direct and indirect impact of the project upon historic properties.

24. Summing Up: All this means is that different types of Federal undertaking demand different levels of Federal Agency Official effort in fulfilling the requirements of Section 106 review.

25. Summing Up: These varying levels of effort may include: initial review requests to the Tennessee SHPO and other Consulting Parties, site visits, the preparation of cultural resources survey reports, and formal Public Meetings and Consulting Parties Meetings.

26. STEP ONE SECTION 106 CHECKLIST

27. Check the appropriate line (Yes, No) as you complete each specific task.

28. Establish Whether the Project is an Undertaking: Remember! Undertakings are defined in the Section 106 Regulation (800.3(a) and 800.9(a) and 800.16(y)) .

29. Sec. 800.3    Initiation of the Section 106 process.     (a) ESTABLISH UNDERTAKING. The agency official shall determine whether the proposed Federal action is an undertaking as defined in 36 CFR 800.16(y) and, if so, whether it is a type of activity that has the potential to cause effects on historic properties (800.3(a) and 800.9(a)

30. PARSING THE REGULATORY DEFINITION OF AN UNDERTAKING(CHECK ALL THAT APPLY)

31. 36 CFR 800.16(y) • project, activity, or program________, • Federally funded in whole or in part________; or, • under the direct or indirect jurisdiction of a Federal agency________, • including those carried out by or on behalf of a Federal agency; or________ • those carried out with Federal financial assistance; or________ • those requiring a Federal permit, license or approval; or________ • those subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency_________. .

32. 36 CFR 800.3(a) that might cause an effect to a property ELIGIBLE FOR LISTING IN OR LISTED IN the National Register of Historic Places. Yes_________ No_________

33. Undertaking This rather broad definition is the consequence of the most recent amendment to the NHPA (1992). At that time, Congress wanted to make plain that it intended for the definition of undertaking to cover most everything the Federal government did that might affect historic properties.

34. Undertaking More recent federal litigation has restricted this definition in some areas involving federal pass throughs to state governments of authority to issue certain environmental permits. Overall, however, this broad definition of an undertaking has stood the test of time. Remember that Federal undertakings have both direct and indirect effects upon historic properties.

35. Undertaking If more than one state is involved in an undertaking, the involved State Historic Preservation Offices may decide to choose a lead State Historic Preservation Officer to act on its behalf in the Section 106 process, including taking actions that would conclude the Section 106 process.

36. Undertaking If more than one federal agency is involved in an undertaking, some or all of the agencies may choose a lead federal agency and a lead agency official who acts on their behalf, discharging their collective responsibilities under Section 106. Those federal agencies that do not choose a lead federal agency remain individually responsible for their compliance.

37. CAVEAT

38. Section 214 of NHPA states, “The ACHP, with the concurrence of the Secretary [of the Interior], shall promulgate regulations or guidelines, as appropriate, under which Federal programs or undertakings may be EXEMPTED from any or all of the requirements of this Act when such exemption is determined to be consistent with purposes of NHPA, taking into consideration the magnitude of the exempted undertaking or program and the likelihood of impairment of historic properties.

39. Section 214 of NHPA, therefore, allows for a CATEGORICAL NO HISTORIC PROPERTIES AFFECTED determination either from the ACHP, or, by inference, from a particular SHPO, when deemed appropriate.

40. TWO POSSIBILE FEDERAL AGENCY FINDINGS

41. 1) No Undertaking The agency official decides that the project under review does not meet the definition of an undertaking. If this is the case, the agency official has completed Section 106 review, but may be called upon by the ACHP to justify the “no undertaking” decision later.

42. 2) Undertaking The agency official decides that the project under review meets the definition of an undertaking. The agency official then informs the Tennessee State Historic Preservation Office, begins consultation, assembles a slate of additional Consulting Parties, informs the Public, and proceeds to Step Two.

43. 2) Undertaking The Tennessee State Historic Preservation Office may suggest added consulting parties and consult with the agency official on proper ways for the interests of the Public to be included in Section 106 review.

44. 2) Undertaking Since a correct determination about whether a Federal activity is an “undertaking” is critical to successful Section 106 review, test your decision again and again.

45. 2) Undertaking What are some specific questions to ask yourself when making a determination about whether a Federal activity is an “undertaking”?

46. Does your project, program, or activity involve Federal funding, licensing, permitting or other type of approval or assistance? Yes_________ No_________ Don’t know_________

47. Does it have the potential to alter any eligibility-defining characteristic of a Historic Property that qualifies that Historic Property for eligibility in the National Register of Historic Places now or in the future? Yes_________ No_________ Don’t know_________

48. WHAT ARE SOME ELIGIBILITY-DEFINING CHARACTERISTICS?

49. Some Eligibility-defining Characteristic • Architectural features such as windows, doors, rooflines, exterior materials, interior architectural features such as mantles, moldings, etc. • Setting • Viewshed • Previously undisturbed archaeology

50. Reality Check: If the answer to both questions is “Yes,” your activity is an undertaking. Proceed to the next question.