Preparing Successful No-Effect and No-Adverse-Effect Section 106 Determinations: A Handbook for Transportation Cultural Resource Practitioners

Under Section 106 of the National Historic Preservation Act, federal agencies, including the Federal Highway Administration (FHWA), must consider the effect of an undertaking on historic properties. For transportation undertakings, state departments of transportation (DOTs) frequently act as the federal agency representative and evaluate the effects on historic properties as part of the transportation project development process. DOTs must be equipped not only to make such evaluations but also to clearly communicate the findings to federal agencies, State Historic Preservation Officers (SHPOs), Tribal Historic Preservation Officers (THPOs), other consulting parties, and members of the public.     Federal regulation (36 CFR 800.5) makes a distinction between undertakings that adversely affect historic properties and those that do not; the latter are referred to as no-effect and no-adverse-effect findings. The criteria for determining an adverse effect is well-defined in the regulations; however, adverse effect findings account for only a small percentage of the Section 106 determinations made each year. There is less information on findings of no-effect or no-adverse-effect to historic properties. Such cases are frequently encountered in connection with transportation projects.    Drawing upon a reasonable and good-faith identification process, a well-reasoned and defensible determination that a transportation project will have no-effect or no-adverse-effect on a historic property requires thorough, working knowledge of the following: (1) Criteria and character-defining features making a property eligible for listing in the National Register of Historic Places;  (2) Aspects of historic integrity that are important for a property to convey its significance; (3) Section 106 regulations, particularly as they relate to criteria of adverse effect;  (4) Resources available for use in the effects assessment process; and (5) Interests of partners and stakeholders who participate in the effects review process and comment on the evaluation—including SHPOs, THPOs, consulting parties, members of the public—coupled with insights into their potential questions and concerns. However, for a determination to be effectively communicated during the consultation process, this background knowledge must be coupled with the skill to clearly articulate the reasoning behind the findings and proactively address potential concerns, fostering trust with partners and stakeholders. Insufficiently justified determinations or those that rely on an outdated or incomplete identification can lead to delays in project development and permitting, impede efficiency in consultation, and provide a weakened administrative record of project development decisions.     While Section 106 training is available, it often covers the general requirements of the law and regulation or focuses on specialized topics like tribal consultation or resolution of adverse effects. Research is needed to identify and describe best practices in findings of no-effect and no-adverse-effect on historic properties from transportation projects and effectively communicate these findings in a Section 106 determination. The research results will support Section 106 practitioners in their efforts to fulfill regulatory requirements for transportation projects, clearly document the decision-making process, sustain good relationships with regulatory partners, and conduct meaningful consultation.     OBJECTIVE   The objective of this research is to produce a handbook for cultural resource professionals at state DOTs and other transportation agencies on developing and effectively communicating Section 106 determinations for findings of no-effect and no-adverse-effect to historic properties from transportation projects.    

Language

  • English

Project

  • Status: Proposed
  • Funding: $150000
  • Contract Numbers:

    25-65

  • Sponsor Organizations:

    National Cooperative Highway Research Program

    Transportation Research Board
    500 Fifth Street, NW
    Washington, DC  United States  20001

    American Association of State Highway and Transportation Officials (AASHTO)

    444 North Capitol Street, NW
    Washington, DC  United States  20001

    Federal Highway Administration

    1200 New Jersey Avenue, SE
    Washington, DC  United States  20590
  • Project Managers:

    Hartell, Ann

  • Start Date: 20220207
  • Expected Completion Date: 0
  • Actual Completion Date: 0

Subject/Index Terms

Filing Info

  • Accession Number: 01835628
  • Record Type: Research project
  • Source Agency: Transportation Research Board
  • Contract Numbers: 25-65
  • Files: TRB, RIP
  • Created Date: Feb 7 2022 3:24PM