Category:135 The Section 106 Process

Forms

Section 106 Project Information Form

Section 106 Survey Form

Guide to the Completion of the SHPO Section 106 Survey Memo

Easily Printable Version of EPG 135.1

Section 106 Procedures for LPAs

Easily Printable Version of EPG 135.2

Section 106 Procedures for MoDOT Projects

Section 106 Process guidance for Local Public Agencies is presented in EPG 136.1 while guidance for MoDOT staff is summarized in EPG 136.2.

Section 106 of the National Historic Preservation Act of 1966 requires potential impacts to significant cultural resources from any federally funded or permitted project to be considered. Cultural resources include archaeological sites, buildings, structures (e.g., bridges), objects or districts. The significance of a cultural resource is evaluated by applying a specific set of criteria that are set forth by the National Register of Historic Places. Cultural resources that meet the criteria of eligibility for listing on the National Register are referred to as “historic properties.” Failure to obtain Section 106 clearance could jeopardize federal funding and permits for a project. Section 106 encourages, but does not mandate, the preservation of historic properties. The goal of Section 106 is to ensure that preservation values are factored into the planning process for all federally funded or permitted projects.

The actual process for MoDOT varies from that of its off-system partners (the Local Public Agencies) because MoDOT employs qualified staff for conducting Section 106 review and has signed agreement documents with the Federal Highway Administration, the Missouri Historic Preservation Office and the Advisory Council on Historic Preservation. Even so, the Section 106 primary objectives are identical for both MoDOT and the LPAs:

1. Identify historic properties. Determine project’s area of effect, identify historic properties, and evaluate historic significance,

2. Assess adverse effects. Assess if the project will have an adverse effect on historic properties, and

3. Resolve adverse effects. Avoidance, minimization, and/or mitigation of any adverse effect on historic properties.

135.1 The Section 106 Process for Local Public Agencies

Additonal information is posted on the Missouri State Historic Preservation Office’s (SHPO) website.

Step 1. Determine Need

The local agency must solicit SHPO's opinion on the need for a cultural resource survey by submitting a Section 106 Project Information Form. The form is available on the DNR web page.

The State Historic Preservation Office (SHPO) must be consulted on the need for a cultural resource survey. The Federal Highway Administration (FHWA) or Missouri Department of Transportation (MoDOT) may also be consulted on an as needed basis but in almost all cases, the information for the SHPO can be prepared by local agency staff. The following data should be provided to the SHPO:

A. Section 106 Project Information Form.

B. If a bridge is present, provide information on the bridge’s builder and the year built along with original 3 in. X 5 in. or larger photographs showing two views (only for truss, stone arch, and concrete arch bridges more than 50 years old). The form is not required for bridges less than or equal to 50 years old, but photos are desired.

C. 7.5 minute (15 minute if 7.5 minutes unavailable) USGS topographic map showing the location of the project and borrow sites. Realignment of roadway should be shown if applicable.

D. Project plans if readily available.

Contractor Furnished Borrow

Borrow pits also need to be evaluated for possible National Register eligible archaeological resources. The local agency should obtain a 7.5 minute topographic map that shows the size and location of the borrow site. The local agency must send this map to the SHPO its review of the need to conduct a cultural resource survey.

Step 2. SHPO Survey Recommendation

SHPO reviews project information and offers opinion as to whether further cultural resource investigations are required.

A. SHPO reviews information from Step 1 and offers an opinion as to the need for a Cultural Resource Survey. If SHPO responds “no survey needed” or “no historic properties affected,” Section 106 is complied with and no further Section 106 work is needed.

B. If the SHPO and the local agency agree that a survey is necessary, a survey should be conducted using a cultural resource consultant to identify historic and/or archaeological resources that may be affected by the proposed project.

C. If local agency does not agree with the SHPO that a survey is needed, the FHWA must be contacted to make a final determination of need for a cultural resources survey.

Step 3. Cultural Resources Survey

Local agency hires cultural resource consultant to conduct survey if necessary. A report is submitted to the SHPO.

A. Cultural resource surveys typically are limited to the proposed project right of way limits and borrow areas. Impacts to architectural resources may include a buffer outside the project right of way so indirect effects are considered.

B. Cultural resource survey reports should follow the SHPO “Guidelines for Contract Cultural Resource Survey Reports.” However, surveys that do not identify cultural resources may be limited to a brief explanation of survey methodology and results, along with a 7.5 minute topographic map showing the survey area.

C. The results of the cultural resources survey are submitted to the SHPO.

1. If no cultural resources were identified, the SHPO usually will respond “no historic resources affected.” The Section 106 process is complete and no further action is necessary.

2. If cultural resources were identified, their eligibility for the National Register must be determined.

3. In some cases, additional field investigations may be required for the cultural resource consultant to determine resource eligibility.

Step 4. Determination of Eligibility

If cultural resources are present, the local agency, in consultation with SHPO and FHWA, determines whether a cultural resource is eligible for the National Register of Historic Properties. A cultural resources consultant may need to conduct additional investigations to evaluate the eligibility of some resources.

Readily available information should be used to determine National Register Eligibility of identified cultural resources. This information should consist of the results of the cultural resource survey, any subsequent investigations, or other available information such as pictures and available history of structures.

A. The SHPO is requested to concur or disagree with the eligibility of a cultural resource. The cultural resource consultant should provide an assessment of resource eligibility. The SHPO requires the following documentation (if not previously submitted):

1. Section 106 Survey Memo.

2. For bridges, HPP Bridge Inventory Survey Form accompanied by 3 in. X 5 in. photographs, original construction date, and original builder.

3. 7.5 minute topographic map.

4. Project plans if available.

5. Phase I and/or II archaeological report (for archaeological resources).

B. If SHPO, local agency, and FHWA agree that a cultural resource is eligible for the National Register, a determination of effect (Step 5) is made next.

C. If SHPO, local agency, and FHWA agree that a cultural resource is not eligible for the National Register, the Section 106 process is complete. No further action is necessary.

D. If SHPO, local agency, and FHWA disagree on the eligibility of a resource, the local agency should request the FHWA to contact the Keeper of the National Register for a definitive opinion. This process can be lengthy (up to six months), so it should be avoided if possible. The keeper requires submittal of the following documentation:

1. Property (bridge name or number) name

2. Location

3. Classification (a highway bridge)

4. Ownership

5. Requesting agency

6. Representation of structure or archaeological site in previous historic surveys, if any

7. Description of structure/archaeological site

8. Significance (based on SHPO eligibility determination)

9. Bibliography (history of bridge or archaeological site in previous research)

10. Geographical data/maps (show location)

11. Photographs (attach one side view and one end view of bridge)

12. Name of individual compiling documentation

13. Phases I & II cultural resource report if available

If the Keeper finds that the resource is not eligible, the Section 106 process is complete.

Affect vs. Effect

It is important to note the specific meanings of affect and effect in the Section 106 process.

MoDOT begins by identifying any historic properties the project may affect. To do this, MoDOT first reviews background information and consults with the State Historic Preservation Office (SHPO) and others who may know about historic properties in the area. Based on this review, MoDOT determines what additional surveys or other field studies may be needed, and conducts those studies. If properties are found that may be eligible for inclusion in the National Register of Historic Places, but have not yet been listed on the Register, MoDOT evaluates them against criteria published by the National Park Service. This evaluation is carried out in consultation with the SHPO, and if questions arise about the eligibility of a given property, MoDOT may seek a formal determination of eligibility from the Secretary of the Interior.

After determining which properties are affected by the project, the effects of that project on the resources are determined. If historic properties are found, MoDOT then assesses what effect the project will have on them. Again, MoDOT works with the SHPO, FHWA, and considers the views of others. MoDOT makes its assessment based on criteria found in the Council's regulations and can make one of three determinations:

■ No effect: no historic properties are impacted and the Section 106 process is concluded;

■ No adverse effect: the project will affect one or more historic properties, but the effect will not be harmful. An agreement document or Job Special Provision (JSP) may be required to ensure protection of that resource;

■ Adverse effect: the project will harm one or more historic properties and mitigation or preservation must be considered.

Step 5. Determination of Effect

If historically significant cultural resources are present, the local agency, FHWA, and SHPO determine effect of the project on a National Register eligible property.

The effects of a project on a National Register eligible property should be determined by the local agency, SHPO, and FHWA. There will be a determination of either “no adverse effect” or “adverse effect.” The SHPO will generally provide its opinion regarding effect along with its determination of eligibility. This opinion should be transmitted to the FHWA.

A. No Adverse Effect—If the SHPO and/or FHWA find the effect is not adverse, the Section 106 process is complete.

B. Adverse Effect—If the effect is adverse, the local agency should consult with the SHPO on means to avoid or mitigate the adverse effect. It may be possible to redesign minor portions of the project to avoid adverse impacts to the resource. In addition, interested parties such as holders of permits and owners of affected lands should be allowed to participate in the discussions if they so request.

Step 6. Preparation of MOA

If historically significant cultural resources will be adversely affected by the project, the local agency coordinates with SHPO and FHWA in preparation of a Memorandum of Agreement (MOA). Local agency signs MOA and provides to FHWA, who obtains SHPO’s signature and then sends to Advisory Counsel on Historic Preservation (ACHP) for signature (optional) or file.

If adverse effects to a resource eligible for the National Register cannot be avoided, a Memorandum of Agreement should be prepared through consultation with FHWA, the SHPO, and other appropriate interested parties. The MOA will document mitigation measures for the eligible resource that will be followed. The MOA is sent to the FHWA for signature. The FHWA will forward the MOA to the SHPO and ACHP for their execution. If the project is not controversial, the ACHP will not wish to participate in the consultation and a two-party MOA is prepared without the ACHP’s signature.

A. For the ACHP to determine whether it will be involved in an MOA, it requires that the following documentation be submitted:

1. A description of the project, including photographs, maps and drawings, as necessary.

2. A description of the efforts to identify historic properties.

3. A description of the affected historic properties, using materials already compiled during the evaluation of significance as appropriate.

4. A description of the undertaking’s effects on historic properties.

5. A description of any proposed mitigation measures and evaluation of alternatives that were considered to remove or lessen the undertaking’s effect.

6. A summary of the views of the SHPO and any interested parties. The Information to Accompany an MOA must contain explicit documentation of public involvement and input regarding the project’s impact to significant cultural resources.

B. The ACHP will comment on the MOA, indicate it does not require further involvement on the project, or indicate its concurrence with the MOA and desire to be a signatory to the document.

C. If the adverse effects are to a Native American archaeological site, American Indian tribes with historical interest in the project area may wish to be consulting parties in the preparation and execution of the MOA. FHWA can provide a list of tribes that may wish to be involved. In these cases, the tribes should be provided with the same information that was forwarded to the ACHP.

Step 7. Mitigation

The local agency implements stipulations of the MOA. Ultimately the SHPO must concur that the stipulations of the MOA have been satisfied.

Following signature of the FHWA, SHPO, and ACHP (if the ACHP has decided to participate), the local agency will implement the MOA to mitigate the impact on eligible cultural resources. The following mitigation has been used on selected projects:

A. Historic Bridges—Generally bridges have been advertised for availability and given to interested parties for reuse at another location or demolished if no one is interested. Prior to transfer of ownership or demolition, the Missouri Historic Preservation Program (HPP) is contacted to determine what level and kind of documentation is required for the bridge. If Historic American Engineering Record (HAER) documentation is required, the following information should be sent to the National Park Service to determine specific documentation requirements:

1. A description of the project, including photographs, maps, and drawings as necessary.

2. A description of the affected historic properties using materials already compiled during the evaluation of significance as appropriate.

3. A description of the undertaking’s effects on historic properties.

4. Draft Memorandum of Agreement.

More commonly, the SHPO determines the bridges should be documented to a less formal level, with the documentation being sent to the SHPO.

B. Historic Buildings—The mitigation of historic buildings generally parallels that of historic bridges. Building documentation is done to either Historic American Building Survey (HABS) standards or a less formal level with the information being sent to the SHPO.

C. Archaeological Sites—Adverse impacts to National Register eligible sites have been avoided through changes in roadway alignment, fencing, and burial under roadway fill. Mitigation of impacts is through excavation. If a site is excavated, a qualified archaeologist must conduct the field investigations, analyze the remains, and prepare a Phase III mitigation report. Artifacts from mitigation excavations are the property of the local agency and must be curated at an archaeological curation facility. If prehistoric human remains are believed to be present, FHWA will require compliance with state burial laws and consultation with appropriate American Indian tribes.

NOTE: One additional copy of the documentation required by the Keeper of the National Register, the Advisory Council on Historic Preservation, and the Historic American Engineering Record or Historic American Building Survey will be transmitted for the Federal Highway Administration files.

Section 106 Process for LPAs Flowchart

135.2 The Section 106 Process for MoDOT Projects

This article is a brief guide to Section 106 (Cultural Resources) compliance.

A cultural resource is any archaeological site, building, structure (e.g., bridge), object or district. Not all cultural resources are historically significant, but all have to be considered.

Why MoDOT conducts cultural resources investigations

MoDOT conducts cultural resource investigations to comply with federal and state laws. Failure to obtain Section 106 clearance may jeopardize federal funding and result in stoppage of the project by Federal Highway Administration (FHWA). The primary legislation that requires cultural resources investigations is Section 106 of the National Historic Preservation Act of 1966. Compliance with this law requires three things:

1) Identify Historic Properties – Determine scope of effect, identify historic properties (i.e., a property or site that is eligible for listing on the National Register of Historic Places, or National Register), and evaluate historic significance;

2) Assess Adverse Effects – Assess if the project will have an adverse effect on historic properties; and

3) Resolve Adverse Effects – Avoidance, minimization, and/or mitigation of the adverse effect on historic properties.

Jobs requiring cultural resources work

MoDOT projects that require cultural resource work are jobs that involve:

1) ground disturbance within existing or proposed MoDOT right of way or easements;

2) modifications to a bridge or culvert; and/or

3) destroys, relocates or encroaches upon a building(s).

If a job does not meet this criteria in the design stage, but later the contractor or maintenance has tasks that would meet one of these criteria the job can become a Section 106 undertaking.

Different levels of cultural resources investigations that the district may require

1) Screening/Recon – Background research that identifies known cultural resources in a proposed job area, usually conducted during the Conceptual/Location study stage. MoDOT should identify historic properties that will require a Section 4(f) Evaluation before Preliminary Plans are approved;

2) Investigation for Section 106 clearance (should begin before preliminary plans are approved):

a) A Phase I survey (an intensive, systematic investigation to identify all cultural resources that may be affected by the proposed job) of the right-of-way and easement limits will be required. A Phase II site testing will be needed if any potential National Register eligible archaeological sites are encountered. The Phase II is a limited archaeological excavation of a site to determine its significance and whether it meets National Register eligibility standards. A Phase II investigation takes approximately 1-2 weeks per site.

b) If National Register eligible resources are identified and will be adversely affected by the proposed job, a Memorandum of Agreement (MOA) spelling out mitigation measures and responsibilities is required. The MOA will be prepared by Historic Preservation (HP) staff and signed by the FHWA, MoDOT, and the State Historic Preservation Officer (SHPO) at the Missouri Department of Natural Resources. Indian tribes may participate in the development of the MOA and could be a signatory of the MOA. Tribal participation is initiated by FHWA. It can take several months to negotiate a MOA; and

c) The mitigation of the adverse effects to National Register eligible resources (a Phase III excavation for archaeological sites) may take several weeks or months to complete the fieldwork. Job construction can proceed following the completion of the mitigation fieldwork.

3) Special Provisions – Some jobs may require special provisions to the construction contract to address cultural resources concerns. These provisions may guarantee that the stipulations agreed to in the MOA will be completed before the National Register eligible resources is adversely affected by construction, or to protect cultural resources from collateral damage that may occur during construction (e.g., monitoring construction or avoidance of certain areas within the job boundaries). The HP staff will draft the special provisions.

How the district initiates cultural resources work

The cultural resources investigations can be initiated through a Request for Environmental Services (RES) submitted to the HP Section of the Central Office. Early involvement by MoDOT’s HP staff provides an opportunity to identify and attempt to avoid significant cultural resources, which will minimize the time and cost of addressing Section 106 concerns during the design process.

A RES for cultural resources investigation for Section 106 clearance should contain:

1) A simple map indicating the location of the project (this can be a topographic map or county highway map). (Note: This is usually the only additional data required for a RES requesting Screening/Recon);

2) Preliminary plans that indicate the maximum footprint of the project (including proposed ROW and easements) and any proposed borrow pits; and

3) Landowner permission allowing MoDOT HP crews’ access to their portion of their property in the proposed project limits. (Note: After the district has made the initial landowner contacts, HP staff can make follow-up calls if a property owner has specific questions, requests, or concerns).

Optional: Photographs of buildings and bridges in the job area can assist in the Section 106 review. Photographs of buildings should consist of an oblique view or if the buildings are recent (less than 50 year old) commercial development, a basic streetscape shots will do. Bridge shots should consist of a roadway view and a side view. Photographs should not be mounted or labeled on the front. Digital images are fine with electronic submittals (JPEG format).

Timelines

Most of the cultural resources' work should be conducted during the preliminary design stage of plan development. Upon the completion of the cultural resources investigations, a report is submitted to the SHPO summarizing MoDOT’s effort to identify historic properties and determine the effects the proposed job would have on these properties. SHPO has 30 days to comment on these findings. Below are several important cultural resources' milestones from the Right of Way and Construction Program database:

• During the "Conceptual/Location Study," the HP staff should be consulted to determine if the project requires Section 106 clearance, and if so, initiated the Section 106 investigations;
• By the "Preliminary Plans Approved" date, HP staff should have identified any historic property that requires a Section 4(f) Evaluation¹ for the FHWA and the Department of the Interior; and
• By "Right of Way Plans Approved" date, HP staff should have an approved final Section 4(f) Evaluation, if needed, so an A-date can be set for right of way purchase.

By meeting these milestones, the HP staff should have opportunities to identify and attempt to avoid significant cultural resources, not delay purchase of right of way, and complete the Section 106 process well before the job's plan completion date.

¹ Section 4(f) of the Department of Transportation Act of 1966 states that a transportation project requiring the use of publicly owned land of a public park, recreation area, wildlife and waterfowl refuge or a historic site (i.e., “historic property” as defined by Section 106) may be approved only if:

1) There is no prudent and feasible alternative to using that land; and

2) The program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use HP staff will develop the Section 4(f) Evaluation document. The District design staff needs to provide design alternatives that avoid the Section 4(f) property and the cost of each alternative. It takes approximately 6 to 12 months to complete the Section 4(f) Evaluation process.

135.3 Borrow and Excess Material Areas

Most borrow and excess material areas are “contractor furnished” with the contractor responsible for attainment or disposal of the necessary materials and compliance with all environmental responsibilities. Typically, the contractor will submit the Section 106 Project Information Form to the State Historic Preservation Office (SHPO). The SHPO has a maximum of 30 days to review this information. The formal SHPO response consists of a letter indicating that no cultural resource survey is required for the identified area or that a cultural resource survey is required. If a survey is required, the contractor may engage a cultural resource firm to conduct the work. Further guidance for hiring a qualified cultural resource consultant may be found at: http://www.dnr.mo.gov/shpo/consultants.htm. Lists of firms qualified by the SHPO can be found on that web site. If asked by a contractor to provide the names of cultural resource contractors, it is important to refer them to the SHPO list and not provide the name of specific firms. For additional information, contractors needing cultural resource help can contact the MoDOT Historic Preservation Section.

In certain cases, MoDOT staff will designate preferred borrow or excess material areas. In these cases, MoDOT usually has obtained Section 106 concurrence for use of the area. For MoDOT to obtain Section 106 clearance for a borrow or excess material area, the project manager should submit an RES with the proposed areas indicated on a topographic map to Design. The time line for MoDOT to obtain Section 106 should allow enough time for MoDOT to conduct the field investigations (if needed) and the SHPO to review and comment on the recommendations (by law the SHPO has 30 days to comment).