Understanding Section 106

• Initiate the Process

  Establish Federal Undertaking

  What is a Federal undertaking?

  According to 36 CFR Part 800.16(y), an undertaking is defined 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, license or approval.”  In Pennsylvania, PennDOT acts as an agent for the Federal Highway Administration.

  Examples of Federal undertakings

  • Highway projects and bridge improvements that are federally funded.
  • Projects that require access to the National Highway System.
  • State-funded projects that require an individual US Army Corps of Engineers permit. (Please note: these projects are not included in the ProjectPATH program.)
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• Project Scoping

  What is scoping?

  Once a project is programmed on the Statewide Transportation Improvement Plan (STIP), PennDOT scopes the project for its potential environmental impacts, including historic resources. With the exception of very minor projects, PennDOT Cultural Resource Professionals (CRPs) participate in the scoping to assess the project's potential effect on historic resources.   

  At the scoping, PennDOT CRP completes the following tasks:

  • define the Area of Potential Effect (APE)
  • identify potentially eligible historic properties
  • determine the potential for archaeological sites
  • make recommendations on whether additional cultural resources studies are required
     

  After the scoping, the CRP may choose from one of three possible options:

  • exempt the project from further section 106 review because the project does not have the potential to affect historic resources
  • make a finding of No Historic Properties Affected
  • complete the Project Early Notification/Scoping Results Form
          

  The form summarizes:

  • the findings from the scoping field view
  • the presence of known or potentially eligible cultural resources
  • the need for additional studies
  • the anticipated level of public involvement based on the project scope and its potential effects
          

  Initiate Consultation

  The PennDOT CRP submits the form to the State Historic Preservation Office (in Pennsylvania, the Pennsylvania Historical and Museum Commission) and posts the information online at ProjectPATH.  If the PennDOT CRP identifies known or potentially eligible historic resources in the Area of Potential Effect, PennDOT initiates section 106 and solicits for potential consulting parties.

  Determine the Area of Potential Effect (APE)

  What is the APE?

  The regulations define the APE as the "geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties… The area of potential effects is influenced by the scale and nature of the undertaking and may be different for different kind of effects caused by the undertaking." 36 CFR 800.16 (d)

  PennDOT is responsible for determining the Area of Potential Effect. This determination may be made in consultation with the SHPO or THPO.  After the APE is defined, PennDOT reviews existing information to locate previously identified historic properties or sites in the APE.

  In Pennsylvania, PennDOT reviews the following background resources:

  • Cultural Resources Geographic Information System
  • Pennsylvania Historic Resource Survey Forms and National Register files
  • Historic Maps
  • Local Historical Societies or Libraries
  • State Archives
  • Historic Bridge Inventory (www.penndotcrm.org)

  This research allows PennDOT to identify previously recorded and evaluated resources and assess any existing information needs.

  Identify Historic Properties within the APE

  PennDOT is responsible for identifying historic properties and archeological sites in the Area of Potential Effect. A historic property is defined as “any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register of Historic Places maintained by the Secretary of the Interior.” 36 CFR 800.16 (l)(1)

  PennDOT is required to make “a reasonable and good faith effort” to identify historic properties and sites.

  What is “a reasonable and good faith effort”?

  The identification efforts should take into account “the magnitude and nature of the undertaking and the degree of Federal involvement, the nature and extent of potential effects on historic properties, and the likely nature and location of historic properties within the area of potential effects.” 36 CFR 800.4(b)(1)

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• Evaluate Historic Significance

  PennDOT is required to evaluate the historic significance of properties located in the Area of Potential Effect.

    

  PennDOT carries out the evaluation by following two steps:

  1. Apply National Register Criteria
  2. Determine whether a property is eligible.

     

  How does the agency apply the eligibility criteria for the National Register?

  The eligibility criteria is defined in regulations issued by the National Park Service (NPS) and not the National Historic Preservation Act or 36 CFR Part 800. Learn more about the National Register of Historic Places at the NPS website:  http://www.nps.gov/nr/regulations.htm

  In order to be eligible for inclusion in the National Register of Historic Places, a property must meet one of the four criteria for significance, be of a certain age (in most cases, properties must be of at least 50 years), and retain integrity of  location, design, setting, materials, workmanship, feeling, and association.

  Criterion for Significance

  • Criterion A- that are associated with events that have made a significant contribution to the broad patterns of our history; or
  • Criterion B- that are associated with the lives of persons significant in our past; or
  • Criterion C- that embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or
  • Criterion D - that have yielded, or may be likely to yield, information important in prehistory or history.

  For more information on eligibility determinations, please see:
  Title 36--PARKS, FORESTS, AND PUBLIC PROPERTY Chapter I--NATIONAL PARK SERVICE, DEPT. OF THE INTERIOR  Part 60--NATIONAL REGISTER OF HISTORIC PLACES Sec. 60.4 Criteria for evaluation.
  This is available online at: http://www.nps.gov/nr/regulations.htm

  Contexts and Surveys

  In Pennsylvania, PennDOT partners with the PHMC to develop contexts and conduct surveys to better understand historic resources throughout the State.

  PennDOT supports the development of contexts to foster a better understanding of National Register Eligibility Criteria. Contexts are important keys to evaluation and determination of eligibility for common property types. For example, PennDOT and the PHMC partnered to develop Pennsylvania's Agricultural History Project, which describes the character defining features of different agricultural regions.  Learn more about Pennsylvania's Agricultural History Project.PennDOT has also helped to support the creation of a website dealing with Pennsylvania's postwar suburban resources.  Learn more about Pennsylvania Suburbs. The PHMC has recently released a new website that chronicles the railroad history of Pennsylvania. Learn more about Pennsylvania's railroads.

  PennDOT also contributes funding to complete county-wide and municipal surveys as part of transportation project mitigation. Surveys enhance the community’s understanding of their existing resources and allow for historic properties to be considered in advance of future projects.

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• Review Eligibility Determinations

  In accordance with the New Statewide Section 106 Programmatic Agreement, PennDOT provides the eligibility determination to the SHPO and THPO. In certain circumstances, PennDOT will seek concurrence on a determination of eligibility.  PennDOT provides the public an opportunity to provide input during the identification process. Please see above.

  How can I submit an objection to PennDOT's level of effort for identification and/or determination of eligibility?

  If you are concerned about a determination of eligibility, you should contact the District Cultural Resource Professional to express your concerns. However, the stipulation (XI) was written into the new Programmatic Agreement to define a formal process for resolving disputes, including eligibility disputes, and it provides for elevation of unresolved eligibility disputes all the way to the Keeper of the National Register’s office if necessary. Read the New Statewide Section 106 Programmatic Agreement.

  If I find a project on the STIP and I'm concerned about the presence of historic resources, whom should I contact?

  If you are aware of historic resources in the APE that PennDOT may have not  identified or evaluated, you should contact the District Cultural Resource Professional.

  You may also request to participate as a consulting party on a project. By participating as a consulting party, your input will be considered early in the design process and may affect PennDOT’s treatment of the historic property. As a consulting party, PennDOT will actively inform you of steps in the section 106 process and PennDOT will consider your comments.

  Where can I find more information about National Register Criteria and Eligibility?

  The National Park Service (NPS) offers helpful guidance on how to apply National Register Criteria, and resources for evaluating historic properties. The National Park Service Bulletin Library will provide you with a starting point for information on the National Register, but you may visit the National Park Service’s website for more information.

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• Assessing Effects

  What is an effect?

  The regulations define effect as “alteration to the characteristic of a historic property qualifying it for inclusion in or eligibility for the National Register.”

  There are three potential findings for effects:

  • No Historic Properties Affected
  • No Adverse Effect
  • Adverse Effect

  Finding of No Historic Properties Affected

  After the identification and evaluation of historic properties in the APE, the agency determines if the Federal undertaking will have an effect on the historic properties present. The agency may determine that undertaking will have no effect on historic properties if there are no historic properties present or if the undertaking will have no effect upon the history properties present in the APE.

  The agency submits the Finding of No Historic Properties Affected to the SHPO/THPO, consulting parties and the public. Unless there is an objection under Stipulation XI, section 106 is completed.

  Finding of No Adverse Effects

  PennDOT may find that there is no adverse effect when the project’s impacts do not meet the criteria of adverse effect.

  An effect is considered adverse when the effect "alters, directly or indirectly the characteristics of a historic property that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property’s location, design, setting, material, workmanship, feeling, or association.” 36 CFR 800.5(a)(1)

  Example Finding of No Adverse Effect
  The rehabilitation of a historic covered bridge in accordance with the Secretary of Interior’s Standards for Rehabilitation is likely to be determined to have no adverse effect.

  The finding is submitted to the SHPO/THPO, consulting parties and the public for comment. If there are no objections within thirty days, the agency may complete the section 106 process.

  Assess Adverse Effects

  What is an adverse effect?

  An adverse effect is defined as an action that may “ alter, directly or indirectly, any of the characteristics of a historic property that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property’s location, design, setting, material, workmanship, feeling, or association.” 36 CFR 800.5(a)(1)

  Examples of adverse effects:

  • physical destruction and demolition
  • alteration not consistent with the Secretary of the Interior’s Standards for the Treatment of Historic Properties
  • change to physical features within the property’s setting that contribute to its historic significance
  • introduction of visual, atmospheric or audible elements
  • deterioration by neglect
  • transfer, lease or sale out of Federal ownership without restrictions to ensure long-term preservation
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• Resolve Adverse Effects - Avoid, Minimize or Mitigate

  Once PennDOT determines that the undertaking will have an adverse effect on historic properties, the agency is required to seek ways to avoid, minimize or mitigate adverse effects.  FHWA must notify the Advisory Council on Historic Preservation regarding the Finding of Adverse Effect and invite the Council to participate in consultation.
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• Consultation to Resolve Adverse Effects

  PennDOT must solicit for additional consulting parties that may be interested in participating in consultation to resolve adverse effects. In addition, the agency must make the documentation available to the public and provide an opportunity for the public to comment on the finding and ways to resolve the adverse effects.

  In most cases, PennDOT works with the SHPO/THPO, consulting parties and the public to reach an agreement about ways to avoid, minimize or mitigate adverse effects. The agreement is formalized in a document that defines the steps PennDOT and parties will follow to resolve the adverse effects.

  Agreement documents may take one of several forms:

  • Memorandum of Agreement (MOA) or Memorandum of Understanding (MOU)
  • Programmatic Agreement (PA)
  • Letter of Agreement (LOA)

  What is a MOA?

  The MOA is a document that codifies how adverse effects to historic properties are to be dealt with and represents a legal commitment by FHWA for ensuring that the undertaking is carried out in accordance with the MOA’s terms. Generally, the Agreement is signed by FHWA, the SHPO, and by PennDOT as a concurring party.  Other parties for whose consultation has been meaningful or have roles in carrying out mitigation commitments may also be co-signatories or concurring parties. Within the New Statewide Section 106 Programmatic Agreement, mitigation commitments can be codified through a simplified Letter of Agreement under certain conditions; however, the intent and effect remains the same.  Where adverse effects are difficult to establish during preliminary design, a project-specific programmatic agreement might be executed instead of an MOA (See Programmatic Agreement).    

  What are mitigation commitments?

  In order to resolve adverse effects, the Federal agency often agrees to mitigation commitments. The mitigation commitments are recorded in stipulations of the MOA. The nature and type of mitigation depends on a number of factors, including:

  • the nature of the adverse effect
  • the nature of the project
  • the views expressed by PennDOT, PHMC, consulting parties and the public
  • the project constraints and parameters

  The results of mitigation for adverse effects are shared with the public through education and outreach.

  Traditional Mitigation Measures for Historic Structures

  • Commitment to design elements of the project to minimize impacts to historic properties
  • Scholarly research and recordation for the purpose of advancing the understanding of a property or property type and preserving a record of the existence of a property
  • A public education component
  • Bridge Marketing - learn more about PennDOT's efforts to market historic truss bridges.

  Traditional Mitigation Measures for Archaeology

  Data recovery is the traditional mitigation measure for an adverse effects to an archaeological site. However, PennDOT also allows for alternative mitigation commitments including:

  • synthesis of archaeological information for a watershed or region
  • curation of an exhibit
  • analysis of local archaeological collections

  The mitigation information was compiled from the Cultural Resources Handbook, Publication 698. For more information on any of the mitigation measures listed, download the Handbook at www.penndotcrm.org.  

  A Programmatic Agreement acts like a MOA but is developed when it is not possible or practical to identify all historic resources and project effects prior to final design activities. A Programmatic Agreement acts as a commitment by PennDOT and FHWA to follow a section process through conclusion of design and  in some cases construction.    

  A Letter of Agreement acts like a MOA, but is used in specific circumstances to bind FHWA and PennDOT to mitigation commitments. A Letter of Agreement (LOA) is simplified in language and references the New Statewide Section 106 Programmatic Agreement for administrative clauses. While LOAs may request the signatures of consulting parties, they do not require the level of legal review that MOAs and PAs required.

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• Coordination with the National Environmental Policy Act and Other Laws

  The regulations encourage early coordination of compliance with section 106 and steps taken to meet the requirements of the National Environmental Policy Act (NEPA).  Much like the National Historic Preservation Act, NEPA established a decision-making framework that requires Federal agencies to consider the impacts of Federal actions on environmental, cultural and community resources. To learn more about NEPA and transportation decision-making, please visit the FHWA Environmental Toolkit.
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• Section 4(f)

  Section 4(f) is a provision in the US Department of Transportation Act of 1966 that prohibits Department of Transportation agencies from approving the use of land from publicly owned parks, recreation areas, wildlife refuges, or public and private historical sites.

  The DOT agency is required to complete a 4(f) evaluation that explores all prudent and feasible alternatives to the use of the prohibited land.  If no prudent and feasible alternative exists, the agency must ensure that the action includes all possible planning to minimize harm to the property resulting from use.

  For more information on Section 4(f), please visit the FHWA Environmental Toolkit for Section 4(f).

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