1、AASHTO PRACTITIONERS HANDBOOKThe Practitioners Handbooks are produced by the AASHTO Center for Environmental Excellence. The Handbooks provide practical advice on a range of environmental issues that arise during the planning, development, and operation of transportation projects. The Handbooks are
2、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 consider; a background briefi ng; practical tips for achieving compliance. In additi
3、on, key regulations, guidance materials, and sample documents for each Handbook are posted on the Centers web site at http:/environment.transportation.orgCONSULTING UNDER SECTION 106 OF THE NATIONAL HISTORIC PRESERVATION ACTThis Handbook provides recommendations for complying with Section 106 of the
4、 National Historic Preservation Act during the environmental review process for transportation projects. Issues covered in this Handbook include:Preparing for Section 106 consultationDefi ning an area of potential effects (APE)Inviting consulting partiesEvaluating eligibility for the National Regist
5、er of Historic PlacesDetermining adverse effectsResolving adverse effectsDeveloping memoranda of agreement (MOAs) and programmatic agreements (PAs)Using alternative procedures to satisfy Section 106 requirementsAmerican Association of State Highway and Transportation Offi cials06February 2007AASHTO
6、Center for Environmental ExcellenceConsulting Under Section 106 of the National Historic Preservation Act 1OverviewSection 106 of the National Historic Preservation Act of 1966 (NHPA) requires Federal agencies to take into account the effects of their actions on historic properties. The NHPA created
7、 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 36C.F.R. Part 800. Cross-references to the Section 106 regulations are included throughout this Handbook.The Section 106
8、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 of the Federal agencys action on historic properties. The goal of Section 106 consultation is to: identify historic prop
9、erties that could be affected by a project, assess the projects potential effects to such properties, and seek ways to avoid, minimize or mitigate any adverse effects to historic properties. The intent of this Handbook is to clarify and provide information to project managers on the successful integ
10、ration of Section 106 and the National Environmental Policy Act (NEPA). This Handbook focuses specifi cally on Section 106 as it applies to transportation projects for which the project applicant is a state department of transportation (DOT). Many of the suggestions in this Handbook also can be appl
11、ied to other types of projects.This Handbook is not intended to serve as beginner introduction to the Section 106 process, nor is it intended to be an exhaustive technical guide for Section 106 practitioners. The References identifying any historic properties within the projects area of potential ef
12、fects (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, often throug
13、h execution of a Memorandum of Agreement (MOA). In general, these steps are completed sequentially. The Section 106 regulations do provide some fl exibility to combine steps, as long as the Federal agency and SHPO/THPO agree, and members of the public still have an adequate opportunity to express th
14、eir views on the undertaking. See 36 C.F.R. 800.3(g).De nition of Consultation. The concept of consultation is at the heart of the Section 106 process. Consultation is defi ned in the Section 106 regulations as a process of seeking, discussing, and considering the views of other participants, and, w
15、here feasible, seeking agreement with them regarding matters arising in the section 106 process. See 36 C.F.R. 800.16(f). Many different kinds of activities fall within this broad defi nition. Consultation on some projects may involve numerous face-to-face meetings; on others, it may rely more heavi
16、ly on an exchange 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. De nition of Undertaking. Section 106 applies to any Federal undertaking. The Section 106 regula
17、tions defi ne an undertaking as a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including1 those carried out by or on behalf of a Federal agency; 2 those carried out with Federal nancial assistance; and 3 those requiring a Fed
18、eral permit, license or approval. A transportation project that is federally funded, or requires any Federal permit or approval, meets the defi nition of an undertaking and therefore requires Section 106 consultation.Listed vs. Eligible Properties. Section 106 consultation is required for all histor
19、ic properties that are listed in or eligible for the National Register of Historic Places. Listed properties can be identifi ed by reviewing a database maintained by the National Park Service. Properties previously determined eligible can also be identifi ed by reviewing existing records, typically
20、in the offi ce of the SHPO/THPO. But research also is needed to identify eligible properties that may exist but have not been previously identifi ed and evaluated. For purposes of Section 106, there is no distinction between listed and eligible properties; properties are not presumed to have greater
21、 signifi cance simply because they are listed in the National Register.Review Times. The Section 106 regulations establish 30-day periods for the SHPO/THPO to review fi ndings or determinations at various points during the Section 106 process. The review period is measured from the SHPO/THPOs receip
22、t of the request for its review of the fi nding or determination. If the SHPO/THPO fails to respond within this 30-day period, the Federal agency can proceed in accordance with its own fi nding, or can choose to consult with the ACHP in lieu of the SHPO/THPO. See 36 C.F.R. 800.3(c)(4). The regulatio
23、ns also defi ne periods for the ACHP itself to provide comments. Specifi c review periods are discussed below in the context of individual steps in the Section 106 process. 2007 by the American Association of State Highway and Transportation Officials.All rights reserved. Duplication is a violation
24、of applicable law.Consulting Under Section 106 of the National Historic Preservation Act 5Consultation vs. Concurrence. The Section 106 regulations do not require a Federal agency to obtain concurrence (approval) from the SHPO/THPO in eligibility or effects fi ndings. Rather, the regulations require
25、 the Federal agency (e.g., FHWA) to make eligibility and effects fi ndings in consultation with the SHPO/THPO. The regulations prescribe steps that should be followed when a SHPO/THPO disagrees with a Federal agencys fi ndings. (See Parts 5 and 6 in the Practical Tips section below.) If there is a d
26、isagreement between a Federal agency and a SHPO on an eligibility issue, the fi nal decision rests with the Keeper of the National Register. Timing of Consultation. Section 106 consultation must be initiated early in the undertakings planning, so that a broad range of alternatives may be considered
27、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 expenditure of funds for implementation of the project. The Federal agency can approve th
28、e expenditure of funds only for non-destructive planning activities prior to completion of the Section 106 process. See 36 C.F.R. 800.1(c). Con dentiality of Historic Resource Information. Section 304 of the NHPA states that information about the location,character, or ownership of a historic resour
29、ce shall be withheld from public disclosure if the Federal agency or SHPO/THPO fi nds that disclosure may (1) cause a signifi cant invasion of privacy; (2) risk harm to the historic resource; or (3) impede the use of a traditional religious site by practitioners. The Federal agency must consult with
30、 the Secretary of Interior in reaching a decision to withhold information under this provision. When a Federal agency decides to withhold information from the public, the Secretary of the Interior then decides who (in particular) may have access to that information for the purpose of carrying out th
31、e NHPA. If the information has been developed in the course of Section 106 consultation, the Secretary of the Interior must consult with the ACHP in making this decision. See 36 C.F.R. 800.11(c).Staff Quali cations for Implementing Section 106. Section 112 of the NHPA requires that Federal agency em
32、ployees and contractors responsible for historic resources meet the Secretary of Interiors Professional Qualifi cation Standards. This requirement does not necessarily require all of those involved in preparing Section 106 documents to meet the Secretarys standards. For example, some Section 106 wor
33、k can be carried out by staff under the supervision of persons meeting the qualifi cations standards. See 36 C.F.R. 800.2(a)(1). Exemption for Elements of Interstate Highway System. In March 2005, the ACHP exempted the majority of the Interstate System from being considered a historic property for p
34、urposes of Section 106. The only exceptions to this exemption are historically signifi cant featurese.g., numerous bridges and tunnelsthat have been specifi cally designated by FHWA in accordance with a process established by the ACHP in the exemption. Projects on the Interstate System still must co
35、mply with Section 106 to the extent that they have potential impacts on other historic properties. The exemption simply means that the Interstate System itself is not considered to be a historic property, except for those individual elements identifi ed by FHWA. Please refer to the Reference Materia
36、ls section for additional information about this exemption. 2007 by the American Association of State Highway and Transportation Officials.All rights reserved. Duplication is a violation of applicable law.6 Consulting Under Section 106 of the National Historic Preservation ActPractical TipsThis sect
37、ion describes each step of the Section 106 consultation process and provides suggestions for carrying out the required consultation activities. Cross-references to the Section 106 regulations are included throughout this section. 1 | Agency RolesAgencies Involved in Section 106 Consultation. Several
38、 different agenciesFederal as well as statehave responsibilities within the Section 106 process. The Section 106 regulations defi ne roles for the following agencies in the process: The Federal Agency that proposes an undertakingsuch as FHWAis responsible for considering the effects of its actions o
39、n historic properties. This Federal agency makes the fi ndings of eligibility and fi ndings of effect that are required in the Section 106 process.The Advisory Council on Historic Preservation (ACHP) is responsible for issuing the Section 106 regulations and overseeing compliance with Section 106. T
40、he ACHP generally does not participate in Section 106 consultation for individual projects, but has the right to do so, and can submit comments at any time.The Keeper of the National Register of Historic Placesan offi ce within the National Park Service (NPS) of the U.S. Department of the Interiores
41、tablishes the criteria for determining eligibility for the National Register, and is the ultimate arbiter of disputes about eligibility. The State Historic Preservation Of cer (SHPO) consults with Federal agencies and provides comments at multiple points in the Section 106 process. The Tribal Histor
42、ic Preservation Of cer (THPO) serves in the role of the SHPO for projects occurring on or affecting properties located on tribal lands, if a tribe has assumed the SHPOs responsibilities. If there is no recognized THPO, the Federal agency should consult with an offi cial designee of the Tribe in addi
43、tion to the SHPO for such projects. The agency roles defi ned in the Section 106 regulations can be modifi ed in a programmatic agreement (PA). See 36 C.F.R. 800.14(b). Under this authority, several state DOTs have entered into statewide PAs that allow signifi cant responsibilities of the SHPO and/o
44、r the Federal agency to be carried out by state DOT staff. In states where such PAs apply, the PA should be consulted to determine agency roles.1Designation of Lead Federal Agency. For most transportation projects, the lead agency is within the U.S. Department of Transportation, for example, the FHW
45、A for highway projects. If more than one Federal agency is involved, some or all of the agencies may consult and designate a lead Federal agency, often the agency with the greatest involvement in the project. The lead agency will then fulfi ll the Federal agencies collective Section 106 responsibili
46、ties. For example, if a highway project requires approval from both FHWA and the U.S. Army Corps of Engineers, FHWA can serve as the lead agency and thereby satisfy Section 106 requirements for both agencies. If no lead agency is designated, each agency is individually responsible for complying with
47、 Section 106. See 36 C.F.R. 800.2(a)(2).Role of the Project Applicant. The Federal lead agency may use the services of project applicants, such as a state DOT, to prepare information, analyses, and recommendations as part of the Section 106 process. In addition, the Federal agency may authorize an a
48、pplicant to initiate the Section 106 process on the Federal agencys behalf. The Federal agency, however, remains responsible for all fi ndings and determinations. See 36 C.F.R. 800.2(a)(3), 800.2(c)(4). Within a given state, the specifi c Section 106 responsibilities of both the Federal agency and s
49、tate DOT are often well-defi ned by practice or through a formal agreement. In addition, some state DOTs (such as Vermont) have entered into statewide programmatic agreements under which the state DOT can handle certain tasks that otherwise would be carried out by the SHPO/THPO and/or the lead Federal agency. It is prudent at the outset of the process for an applicant to meet with the Federal agency, review specifi c tasks, and determine which can be handled by the applicant and which will be performed by the Federal ag
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