Guide to section 106 review

Commonwealth of Virginia | Department of Historic Resources (DHR)
Guide to Section 106 Review
11|08|17
Training Presentation
Alexandria, VA

PRESENTATION OUTLINE
Section 106 consultation process
• What is 106? What triggers 106 review?
• Criteria for designation |National Register of Historic Places
• Different 106 determinations
• The Secretary of the Interior’s Standards

WHAT IS SECTION 106?
Section 106 of the National Historic Preservation Act of 1966
Code of Federal Regulations (CFR)
36 CFR Part 800 – Protection of Historic Properties

Declared a national preservation
policy
Created SHPO offices
Created the Advisory Council for
Historic Preservation (ACHP)
Created the National Register of
Historic Places
Created 106 Review Process
NATIONAL HISTORIC PRESERVATION ACT
(NHPA) OF 1966

Federal agencies shall take into account the effect of their
undertakings on any district, site, building, structure, or
object that is included in or eligible for inclusion in the
National Register of Historic Places.

Section 106 is a process of consultation

Four step process
1 | Initiate the process
2 | Identify historic properties
3 | Assess adverse effects
4 | Resolve adverse effects
106 CONSULTATION PROCESS

106 CONSULTATION PROCESS
1 | Initiate
2 | Identify
3 | Assess
4 | Resolve

Establish the Undertaking
Undertaking | A project or activity, or program funded in
whole or in part under the direct or indirect jurisdiction of a
Federal agency, including those carried out on behalf of a
Federal agency; those carried out with federal assistance;
and those requiring a federal permit, license or approval.
1 | INITIATE THE PROCESS

Timing is everything. Consult during the early stages in
project planning. 106 must be completed before release
of federal funds.

Section 800.8 | Coordination with National
Environmental Preservation Act (NEPA). The public
involvement process
shall follow NEPA procedures. NEPA documents must
include historic preservation issues.

Federal Agency Official / Responsible Entity (AO/RE)
State Historic Preservation Officer (SHPO)
National Parks Service (NPS)
Federally recognized tribes
Advisory Council on Historic Preservation (ACHP)
Local governments that have jurisdiction (mandatory)
Applicants
The public
Other consulting parties
800.2 | Participants in 106

Section 800.2
The State Historic Preservation Office (SHPO) is a
mandatory
consulting party. For Virginia, the SHPO is the Department
of Historic Resources (DHR). SHPO offices play a key role
in
advising and assisting with the 106 consultation process.

Tribal consultation
If project is on Tribal lands, the Tribal Preservation Officer
(THPO) is the official. A THPO may substitute for SHPO in
the review process. THPOs are designated by tribal
government

Tribal consultation
Respects Tribal sovereignty and reflects a Government-to-
Government relationship

Consultation with Indian Tribes
Indian tribe | in NHPA refers only to Federally-recognized
Indian tribes. Accordingly, under NHPA and ACHP’s
regulations, only a federally recognized Indian tribe has
the right to participate in Section 106 consultation.
Under Section 800.2(c)(5), the agency may invite state
recognized or non-recognized groups to participate in
consultation based on a demonstrated interest in the
undertaking’s effects on historic properties.
16

Bureau of Indian Affairs
Eastern Region Office
545 Marriott Dr, Ste 700
Nashville, TN 37214
Phone: 615-564-6700
Fax: 615-564-6701
United South and Eastern Tribes, Inc.
Non-profit inter-tribal org that represents member
tribes at regional & national levels.
17

National Historic Landmarks (NHL)
Section 800.10 | Alexandria Historic District is a National
Landmark (NHL). National Parks Service (NPS) needs to
also be consulted if an undertaking will affect an NHL.
Email: NPS NE Region Office at
NPS_NHLNEReview@nps.gov

Consulting with the public
Section 800.2 | The RE 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, confidentiality
concerns of private individuals or businesses, and the
relationship of Federal involvement. RE MUST PROVIDE
INFO TO THE PUBLIC.

Advisory Council on
Historic Preservation
• independent federal agency
• promotes the preservation, enhancement, and productive
use of our nation's historic resources
• advises the President and Congress on national historic
preservation policy

Step 1: Completed
– Define the undertaking; determine if undertaking has
the potential to affect historic resources
– Identify/contact the appropriate SHPO/THPO
– Identify the appropriate consulting parties
(DOCUMENT)
– how public involvement will be incorporated into
overall project planning (DOCUMENT)

Area of Potential Effect (APE)
Section 800.4 | Geographic area or areas within which an
undertaking may directly or indirectly cause alterations in
the character or use of historic properties, if any such
properties exist [800.16(d)].
2 | IDENTIFY RESOURCES

Area of Potential Effect (APE)
- Determined before identification efforts take place.
- Does not have to be contiguous.
- Determined in consultation with SHPO/THPO.
Direct effects – ground disturbance, demolition,
rehabilitation
Indirect effects – noise, pollution, visual
* can include foreseeable and cumulative effects

Monumental places like Mount Vernon,
Monticello and Montpelier

Decisive battlegrounds of the American Revolution
and Civil War

Places that mark the birth of a new nation and remind
us of what being an American means.

Places where Native Americans hunted bison and
mammoth before there was a Chesapeake Bay

Milestones on our Nation’s journey to space
Nasa Variable Density Wind Tunnel (1923).

Events that defined an era and became a flashpoint for
the political awakening of a young generation

Places that are unique; rare examples of a type
B&B Carousell – Luna Park, Coney Island NY

Places reflecting modernist architectural
experimentation
Markel Building, Richmond VA

Historic Property
Section 800.16 | Any prehistoric or historic district, site,
building, structure, or object included in, or eligible for
inclusion in, the National Register of Historic Places
The term ‘historic’ includes:
- artifacts, records, and remains that are related to and
located within such properties.
- Properties of traditional religious or cultural importance
to an Indian Tribe or Native Hawaiian organization that
meet the NRHP criteria.

Integrity
The ability of a property to convey its significance. To be
listed or eligible for listing on the National Register, it must
first have integrity, then meet at least one NR Criteria.
• Location
• Design
• Setting
• Materials
• Workmanship
• Feeling
• Association

Criteria Consideration G | exceptional significance
Dulles International Airport (1962), eligible in 1978

36 CFR Part 63 |Criteria for Evaluation
Criterion A | Association with an event or pattern of events.
Robert Russa Moton High School, Farmville, VA

Criterion B | Association with person significant in our past
Patsy Cline House, Winchester, VA

Criterion C | Distinctive characteristics of a type or style
Larkey-East Cabin, Scott County, VA

Criterion D | Information Potential (Archaeological Sites)
Artifacts from Werowocomoco, Gloucester County

Research resources
- DHR VCRIS
- Interviews with knowledgeable people.
- Library of Virginia maintains a list of historical societies
- Records of land use history
- Sanborn fire insurance maps
- Plat maps
- Native American consultation
- Visit DHR archives

DHR ARCHIVES
Hours: 9:00 – 5:00, Tuesday - Thursday
closed Friday through Monday and on State holidays.
No appointment is necessary to visit
- Access / assistance with VCRIS
- directions for completing a GIS map of the project area
- topographic maps - historic maps
- survey files - CRM reports
- historic maps - local histories/secondary resources
Black and White prints and photocopies are $ 0.15 and color prints are $ 0.25.
Prices subject to change.
42

Archaeology and 106
43
• Archaeological APE
• When do we recommend survey?
• Phases of archaeological survey and research
• Archaeology in disturbed contexts
• Report production
• Guidelines
- DHR
- ACHP
- NPS

Archaeology | Archaeological survey is a key part of
the identification process
44

Archaeological APE
Determine the Area of Potential Effect (APE).
The APEs for archaeological and architectural
resources may be different:
Area of disturbance
Consider visual effects

How do you document the APE?
Explain how the APE was determined:
- visual reconnaissance, study of land use patterns, etc.)
- why you chose the boundaries that you did
- Support your choice with graphic materials (e.g.
photographs, maps, and drawings, etc.) that illustrate the
APE.
- Recommended: the APE should be highlighted on a
localized map.

Archaeological survey| What to consider
• Previously identified sites in and around the project area
• Background research: historic maps, deeds, etc.
• Topography of the Area of Potential Effect (APE)
• Past use/disturbance of APE

Phases of Archaeological Survey and
Research
• Phase I Identification survey
• Phase II Evaluation
• Phase III Data Recovery

No Further
Work
Avoidance/
Preservation in Place
Phase III Data
Recovery
Develop MOA/
Data Recovery Plan
Site Found
Eligible
No Further
Work
Site Found
Not Eligible
Phase II Evaluation
No Further
Work
Avoidance/
Preservation in Place
Potentially Eligible
Sites Located
No Further
Work
No Potentially Eligible Sites Located
Phase I Survey
Survey Recommended

Phase I Identification Survey
Goal:
• locate previously unidentified archaeological sites in
project area
• determine potential eligibility for the National Register

Phase I Identification Survey
• Background research includes but is not limited to:
– Previous surveys
– Disturbance
– Low/high probability areas
– Historical documentation
• Methods include, but are not limited to:
– Surface inspection
– Shovel testing
– Remote sensing

Phase I Surface Collection

Phase I – Shovel Test Pits

Phase I – Urban Situations

Phase II Evaluation
Goal:
• determine NRHP eligibility
• provide recommendations for future treatment of
site
Background research includes but is not limited to:
- In-depth prehistoric/historical research
- Analysis of similar sites in geographic region
- Informant information

Phase II Evaluation
– In-depth prehistoric/historical research
– Analysis of similar sites in geographic region
– Informant information

Phase II Evaluation
• Methods include but are not limited to:
– Shovel testing
– Test units
– Mechanical stripping
– Remote sensing

Phase II Test Units

Example of Cultural Layers

Archaeology | What constitutes a “reasonable and
good faith effort” to identify archaeological
properties?
63

Who can submit information to the SHPO?
Applicants and contractors may submit
information, provided that the description
of the undertaking and its APE have been
reviewed and approved by RE

Project Review Application Rehabilitation
• Completed archives search. PDF from VCRIS with the
delineated APE.
• USGS map with the APE delineated
• Complete project scope
• Identification of properties & previous land use
• Information on current use of property and current
conditions
• Description of ground disturbance
• Site map (to scale) indicating areas of ground disturbance
• Photos – keyed to a site map and indicating direction
• Architectural plans
• Proposed plan to involve public
• Consulting parties identified
• Is further identification appropriate?

Identifying Historic Properties
69

70

71

Survey may be a key part of the Identification
process and may involve Phase I or Phase II
work.
Identification (Phase I) surveys locate
previously unknown resources.
Evaluation (Phase II) surveys evaluate the
eligibility of a recorded resource for inclusion on
the National Register.
74

Step 2: Completed
• At this point, AO/RE should have determined:
– the APE
– the scope of effort to identify historic properties
– what, if any, historic properties are located in the
APE
• The SHPO must be informed in writing of the above
decisions. (DOCUMENT)
• This information must be made available to the public.
(DOCUMENT)

Assessments of effect
• No Historic Properties
Affected There are no
historic properties present or
the undertaking will have no
effect on them as defined in
800.16
• Notify consulting parties and
make review public
SHPO concurrence
completes the agency’s
106 responsibilities
Process ends with
Step 2

Assessments of effect
• No Historic Properties
Affected There are no
historic properties present or
the undertaking will have no
effect on them as defined in
800.16
• Notify consulting parties and
make review public
• Historic properties affected
• If the agency official finds that
historic properties are
affected, notify consulting
parties
SHPO concurrence
completes the agency’s
106 responsibilities
Process ends with
Step 2
Apply the criteria of
adverse effect
36 CFR Part 800.5
Assess & continue
consultation

Criteria for Adverse Effect
Section 800.5| An adverse effect is found when an
undertaking may alter, directly or indirectly, any of the
characteristics of a historic property that make it eligible
for listing on the National Register in a manner that would
diminish the integrity of a property’s location, design,
setting, materials, workmanship, feeling, or association.
3 | ASSESS ADVERSE EFFECTS

Examples of adverse effects
Section 800.5| physical destruction of or damage to all or
part of the property.

Section 800.5| alteration of a property including restoration,
rehabilitation, repair, or maintenance, stabilization,
hazardous material remediation, and provision of
handicapped access that is not consistent with the
Secretary of the Interior’s Standards for the Treatment of
Historic Properties

Section 800.5| removal of the property from its location

Section 800.5| change of the character of the property’s use
or of physical features within the property’s setting that
contribute to the property’s character.

Section 800.5| introduction of visual, atmospheric, or
audible elements that diminish the integrity of the property’s
significant historic features

Section 800.5| neglect of a property which causes
deterioration, except where such neglect and deterioration
are recognized qualities of a property of religious or cultural
significance to an Indian tribe or Native Hawaiian
organization

Section 800.5| transfer, sale, lease, of federal property
without adequate and legally enforceable restrictions on the
conditions to ensure long-term preservation of the
property’s historic significance

Finding of No Adverse Effect
Section 800.5| the agency official, in consultation with
the SHPO, may propose a finding of no adverse effect
when the undertaking’s effects do not meet the criteria of
this section or conditions are imposed such as the
subsequent review of plans by the SHPO to ensure
consistency with the Secretary of the Interior Standards
SHPO will issue a “no adverse effect” concurrence or a
“conditional no adverse effect” letter

Step 3: Completed
• AO/RE must submit documented finding to consulting
parties for their review
• Documented finding must be submitted to SHPO for
concurrence
• Documented finding must be retained for public
review
• Implementation of the undertaking as documented in
the finding fulfills the agency’s responsibilities under
Section 106

HOW WE REVIEW

THE STANDARDS

Standards for the Treatment
of Historic Properties
1 | Preservation
2 | Restoration
3 | Rehabilitation
4 | Reconstruction

Standards for Preservation
1 | Preservation – the act or process of applying
measures to sustain the existing form, integrity, and
materials.
- Maintenance and repair
- Sensitive code-required work
- Exterior additions not part of this treatment

Standards for Restoration
2 | Restoration – the act or process of accurately
depicting the form, features, and character at a
particular time by removal of features from another
time. Work focuses on nterpreting the restoration
period.

Standards for Rehabilitation
3 | Rehabilitation – the act or process of making
possible a compatible use for a property through
repair, alterations, and additions while preserving
those features which convey historical, cultural, or
architectural values.

1- a property will be used as it was historically or be
given a new use that requires minimal change to its
distinctive features, spaces and spatial relationships
2- the historic character will be retained and
preserved. Removal of distinctive materials or
alteration of features will be avoided.
3- each property is a record of its time, place and
use. Do not create a false sense of historical
development.

4- changes to a property that have acquired
significance in their own right will be retained and
preserved.
5- distinctive features, finishes, materials, and
construction techniques that characterize a property
will be preserved.
6- deteriorated historic features will be repaired
rather than replaced. Where the severity of
deterioration requires replacement of a distinctive
feature, the new feature will match the old in design,
color, texture, and where possible materials.
Replacement based on documentary evidence.

7- chemical and physical treatments, if appropriate,
will be undertaken using the gentlest means
possible. Treatments that cause damage will not be
used.
8- archaeological resources will be protected and
preserved in place. If such resources must be
disturbed, mitigation measures will be undertaken.

9- new additions, exterior alterations, or related new
construction will not destroy historic materials,
features, and spatial relationships that characterize
the property. New work will be differentiated from
the old and will be compatible with the historic
materials, features, size, scale, proportion, and
massing to protect the integrity of the property and
its environment.
10- new additions and adjacent new construction will
be undertaken in a manner that, if removed in the
future, the essential form and integrity of the historic
property and its environment would be unimpaired.

ACHP Policy Statement on Affordable
Housing and Historic Preservation
- Rehab for affordable housing is a sound historic
preservation strategy
- Emphasize review of exterior treatments
- Consultation should consider overall preservation
goals of the community
- Adhere to the Standards when possible and
practical
- Consultation should emphasize consensus
building
- Need for archaeological investigations should be
avoided if ground disturbance is minimal

Section 800.6 | Requires continued
consultation
• Continue consultation with SHPO & consulting
parties to avoid, minimize, or mitigate the adverse
effect
• Notify the ACHP
• Involve the public (again)
• Involve consulting parties (again)
• Resolution = MOA
4 | RESOLVE ADVERSE EFFECTS

Criteria for ACHP Involvement
Appendix A: The ACHP is likely to be involved in individual
undertakings if one or more of the following criteria are met:
– Substantial impacts on important properties.
– Important questions of policy or interpretation.
– Procedural problems.
– Issues of concern to Native Americans.
108

• Avoid
• Minimize
• Mitigate
Explore alternatives

Involve the Public
• Yes, again.
• Provide an opportunity for members of the public to
express their views on resolving the adverse effect
• Public notice or meeting must specifically reference
the adverse effect
• Document what you do!

Involve consulting parties
• May identify new consulting parties in addition to
those identified earlier in the process
• Any organization or individual that will assume a role
or responsibility in the MOA must be invited to
participate as a consulting party.
• Document what you do!

What is an MOA?
• MOA = Memorandum of Agreement
• Necessary to resolve adverse effects
• Addresses the entire undertaking
• Provides mitigation for the adverse effect
• Signed by the AO/RE and SHPO, at a minimum,
other signatories may include consulting parties,
applicants, ACHP

Mitigation
• Something the AO/RE agrees to do to compensate for
the adverse effect
• Should be as closely related to the adversely affected
historic property as possible
• Should have a public benefit
• Will hopefully be worked out with the input of
consulting parties and the public as well as the SHPO

Examples of Mitigation
• Architectural documentation
• Highway marker or other interpretive signage
• Brochure
• Teaching module for use in schools
• Data recovery with approved treatment plan
• Development of historic context

Treatment
• Preservation in place is almost always the preferred
alternative
• Forms of preservation in place include but are not
limited to site burial and avoidance
• Preservation in place should generally be recorded in
a preservation or conservation easement

Treatment – Data Recovery
Phase III - Data recovery
• Adverse effect
• Requires public comment

Treatment – Data Recovery
– Intense research into history/prehistory of site area
– Information on other similar sites data recovered
in geographic region
• Methods include but are not limited to:
– Shovel testing
– Test units, mechanical stripping
– Feature excavation

Phase III Data Recovery
Mechanical Stripping

Phase III Data Recovery – Brook Run
(VDOT R-O-W)

Data Recovery
Open Area Excavation

19th-century Warehouse
Foundations Richmond

Archaeology in Disturbed Contexts
• Archaeological sites are often found in areas where
excessive disturbance has occurred, i.e., urban sites,
VDOT right-of-way, pipelines, etc.
• This highlights the importance of completing
background research in order to determine the
likelihood of buried sites within the project area

Duvall Pottery Site - Richmond

Step 4: Completed
• A signed MOA or PA completes the Section 106
process, must be filed with the ACHP
• Pay attention to deadlines in the agreement for
completing documentation
• Keep track of comments, paper is your friend
• Project may proceed as spelled out in the MOA

Section 800.9
Council Review of Compliance
• Foreclosure happens when an AO/RE has failed to
complete the steps of the Section 106 process prior to
the approval of an undertaking.
• Only the ACHP can declare that foreclosure has
occurred

Intentional adverse effects
• 800.9(c) – Federal agency is prohibited from granting
federal assistance to an applicant who has
intentionally adversely affected an historic property or
who has allowed such an effect to occur.
• Consultation with the ACHP is required
• Federal assistance may be granted if the ACHP and
the Agency determine that circumstances justify
granting assistance anyway.

Section 800.10
National Historic Landmarks
• National Historic Landmarks (NHL) are designated by
the National Park Service, they are a step above
National Register properties
• “to the maximum extent possible”
• ACHP must be invited to participate in resolution of
adverse effects
• The Secretary of the Interior must be notified, invited
to participate when there is an adverse effect

Post Review Discoveries
If construction has begun:
determine ways to resolve adverse effects
notify the SHPO, any Indian tribe that might attach religious
and cultural significance to the affected property, and ACHP
within 48 hours of the discovery
describe the National Register eligibility of the property and
proposed actions to resolve the adverse effects.
SHPO/THPO, others – must respond within 48 hours

Keep an eye on riverbanks, shorelines, and
other erosion-prone areas

Burials and Federal Law
• Native American Graves Protection and Repatriation Act
(1990)
– Requires all federal agencies and museums to consult
with federally-recognized American Indian tribes and to
repatriate human remains, funerary items, and objects of
cultural patrimony to the appropriate tribes.
– Applies to:
• American Indian gravesites located on federal
land
• American Indian skeletal remains, and funerary
and culturally significant objects in the custody of
federal agencies or museums and other curatorial
institutions receiving federal funds.

Burials and State Law
• Disinterring (removing from a grave) or displacing
part or all of any buried human remains is a Class 4
felony under Virginia law (§18.2-126). Conviction is
punishable by two to ten years in prison and up to
$100,000 in fines. This law applies to all human
burials, whether prehistoric, historic, or modern.

Willful Disturbance
• Relic hunting, vandalism, grave robbing
•If you find evidence of
any of the above, photo
document but do not
touch anything
•Notify law enforcement
officials immediately

Burials and State Law
• 17VAC5-20. Regulations Governing Permits for
the Archaeological Removal of Human
Remains (amending 17VAC5-20-30 through
17VAC5-20-60).
• Statutory Authority: §§ 10.1-2205 and 10.1-2305 of
the Code of Virginia.
• Effective Date: September 20, 2016.

Report Production
• All levels of archaeological survey, research and
subsequent reports must meet our guidelines
• Reports should be submitted for our review and
concurrence with recommendations

Guidelines - DHR
• Guidelines for Conducting Cultural Resource
Survey in Virginia: Additional Guidance for the
Implementation of the Federal Standards Entitled
Archaeology and Historic Preservation: Secretary
of the Interior’s Standards and Guidelines (48 FR
4472, September 29, 1983) 1999, rev. 2000
– Includes guidance for conducting
archaeological surveys in Virginia and for
preparing subsequent reports
– These guidelines are available on our website
at
www.dhr.state.va.us/pdf_files/SurveyManual.P
DF

Section 800.11
Documentation Standards
• This section spells out what information constitutes a
documented finding.
• Documentation must be sufficient enough “to enable
any reviewing parties to understand its basis.”
• Also should be referred to when information is being
sent to the ACHP.

Things to remember…
• Section 106 does not require preservation.
• Consultation is a process, not an event.
• The Section 106 process is not limited to 30 days.
• When in doubt, reach out!
– Laura.Lavernia@dhr.virginia.gov
(804) 325-8473
- Ethel.Eaton@dhr.virginia.gov
(804) 482-6088

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