Preparing Successful No-Effect and No-Adverse-Effect Section 106 Determinations: A Handbook for Transportation Cultural Resource Practitioners (2025)
Chapter: 2 Steps in Making Successful and Defensible Findings of No Effect and No Adverse Effect
CHAPTER 2
Steps in Making Successful and Defensible Findings of No Effect and No Adverse Effect
This chapter presents the steps associated with making successful and defensible findings of No Effect and No Adverse Effect. These steps are based on the results of the online survey and interviews and generally follow the steps in Section 106 process as laid out in the regulation. As noted earlier, successful and defensible findings of No Effect and No Adverse Effect begin with the early steps of the Section 106 process, starting with initiating the process.
Step 1: Initiate the Section 106 Process (36 CFR Part 800.3)
As discussed earlier, initiating the Section 106 process, as laid out in 36 CFR Part 800.3, includes several decisions and actions that play an important initial role in making successful and defensible findings of No Effect and No Adverse Effect. These decisions and actions include the following:
- Coordinating the steps in the Section 106 process with other required reviews, such as NEPA (36 CFR Part 800.3 (b));
- Identifying the appropriate SHPO, or THPO if a project is on tribal lands, and initiating consultation with the SHPO/THPO (36 CFR Part 800.3 (c));
- Planning for public involvement (36 CFR Part 800.3(e)); and
- Identifying other consulting parties, including tribes (36 CFR Part 800.3(f)).
The other decisions and actions in 36 CFR Part 800.3 include establishing the undertaking (36 CFR Part 800.3(a)), consultation on tribal lands (36 CFR Part 800.3(d)), and expediting consultation (36 CFR Part 800.3(g)). As this handbook is about effects findings, establishing whether there is an undertaking has already been determined well before one is determining the effects on historic properties. Subsequent chapters in this handbook include discussions and best practices concerning tribal consultation, and these discussions and best practices apply to projects both off and on tribal lands and take into account the special standing tribes have when a project takes place on their lands. This handbook also provides examples in which FHWA, a state DOT, and SHPO combine (i.e., expedite) the steps in the Section 106 process into one consultation documentation.
Each of the decisions and actions listed is discussed in more detail in the sections that follow.
Coordinating with Other Reviews
As stated in FHWA’s Section 106 tutorial,
Section 106 reviews are an integral part of FHWA’s broader National Environmental Policy Act (NEPA) review. . . . It is FHWA policy to manage the NEPA decision-making process as an “umbrella” under
which environmental laws, executive orders, and regulations, including Section 106, are considered and addressed prior to the final project decision. (FHWA 2023f)
Public involvement is an important element in decision-making related to making determinations of effect under Section 106, and a good way to conduct public involvement is to link and integrate Section 106 public involvement with public involvement conducted as part of NEPA reviews. In addition, there are tools and approaches used to comply with various environmental laws and regulations that fall under the NEPA umbrella, such as community impact assessments, which can be applied to consultation on assessing project effects under Section 106. Early planning for coordinating the steps in the Section 106 process with these other environmental reviews can enhance subsequent decision-making on determinations of effect.
Identifying the Appropriate SHPO/THPO and Initiating Consultation
As stated in the Section 106 regulations, the federal agency, as part of its initial planning, identifies the appropriate SHPO and/or THPO and then initiates consultation with them. The online survey and interviews identified early consultation with SHPOs and THPOs as a critical foundation for subsequent assessments of project effects, and it is discussed in more detail in Step 3. Depending on the stage of project definition and design at the time of initiating consultation, FHWA and state DOTs may not be able to provide SHPOs and THPOs with enough information for an SHPO or THPO to comment on a project, beyond acknowledging receipt of formal initiation of the consultation process. In some cases, however, initiating consultation might be an opportunity for FHWA, a state DOT, an SHPO, and a THPO to discuss the potential for Adverse Effects on known significant properties that may have an impact on subsequent project decision-making. This involves looking at potential red flags that need to be taken into account in both Section 106 reviews and project development, with the goal of advancing project design so these significant properties are avoided or potential effects on these properties are minimized early in the process.
Developing a Plan for Public Involvement
As stated in the Section 106 regulations in 36 CFR Part 800.3(e), “In consultation with the SHPO/THPO, the agency official shall plan for involving the public in the Section 106 process. The agency official shall identify the appropriate points for seeking public input and for notifying the public of proposed actions.” The FHWA Section 106 tutorial, under “Section 106 Participants: Roles and Responsibilities,” discusses the public involvement requirements laid out in Section 106 regulations. Public involvement is to occur during all steps in the Section 106 process, including identifying historic properties, assessing effects on historic properties, and identifying measures to resolve Adverse Effects on historic properties. As noted in the FHWA tutorial,
One of the most effective ways to address the public involvement requirements of the Section 106 process is to integrate Section 106 public involvement with NEPA public involvement. NEPA public involvement occurs at multiple points during the preparation of [Environmental Assessments] and [Environmental Impact Statements]. It should be noted that even though there may be no public involvement associated with a project processed as a [Categorial Exclusion], there may still be the need for Section 106 public involvement if the proposed project may affect historic properties. In sum, Section 106 public involvement should begin during the early stages of project development and continue through the completion of the NEPA review process. (FHWA 2023e)
The FHWA tutorial also provides recommendations on applying NEPA public engagement tools and approaches to Section 106 public involvement:
In addition, approaches for engaging the public about Section 106 issues should utilize (and be integrated into) the same tools and approaches used for NEPA public involvement. These tools and approaches
might include NEPA-related community engagement conducted in the context of Community Impact Assessments and Environmental Justice. This is especially important when the historic properties that may be affected by a project are associated with minority, low-income, and limited English proficiency communities. (FHWA 2023e)
The CEQ/ACHP Handbook also addresses the potential linkages between environmental justice and Section 106:
Environmental justice issues encompass a broad range of impacts covered by NEPA, including impacts on the natural or physical environment and interrelated social, cultural, and economic effects. In Section 106 consultations, representatives of affected communities may also raise environmental justice issues. Such issues which can be addressed through historic preservation considerations may contribute to the agency’s overall environmental justice compliance. (CEQ and ACHP 2013)
Following the recommendations of the FHWA tutorial and CEQ/ACHP Handbook, Section 106 practitioners, when appropriate, should work with FHWA and state DOT environmental justice and Community Impact Assessment professionals to identify and engage minority, low-income, and limited-English-proficiency communities in the Section 106 public involvement process. SHPOs and local historic preservation organizations are additional resources for identifying and engaging these communities.
Identifying Other Consulting Parties
In terms of identifying other consulting parties, the Section 106 regulations state in Part 800.3(f), “In consultation with the SHPO/THPO, the agency official shall identify any other parties entitled to be consulting parties and invite them to participate as such in the Section 106 process.” These other entitled consulting parties include local governments, tribes, and NHOs. Other consulting parties can also include individuals and organizations who request to be a consulting party, such as property owners and individuals and organizations who have a concern about a project’s effects on historic properties. Members of minority, low-income, and limited-English-proficiency communities may not only be considered members of the public, but also Section 106 consulting parties when a project has the potential to affect a historic property of significance and value to their community.
Additional Information and Resources
- NEPA and NHPA: A Handbook for Integrating NEPA and Section 106 (CEQ and ACHP 2013).
- Environmental Review Toolkit, Section 106 Tutorial (FHWA 2023b).
Step 2: Define the Project
Understanding and defining all aspects of a project are critical for effectively assessing project effects. Therefore, the cultural resource management staff of a state DOT and a state DOT’s private-sector consultant should work with state DOT and consultant engineers and planners to develop a comprehensive list of project activities and their locations. The project description should be supplemented by plans, maps, and photographs, if available, to convey all project details in as much detail as possible. This facilitates subsequent consultation on project effects. As noted by an online survey respondent, “This description should make it clear to a reader unfamiliar with the project or its background what is being done and what the potential impacts might be.”
Internal project coordination meetings are often used by state DOT cultural resource staff to gather project information early in the Section 106 and project development processes and then work with project engineers and planners to advance a project design that avoids or minimizes
potential impacts to historic properties. In the early stages of a project, all the details and elements of the project may not be clear or fully developed—for example, staging areas, stormwater features, and locations associated with temporary construction. Therefore, state DOT cultural resource staff should work closely with project engineers and planners to identify and schedule the necessary linkages between project design and the need for and timing of making formal effects findings in consultation with the SHPO, the THPO, tribes, and other consulting parties, with the understanding that changes in project scope may require changes in previous determinations of project effects. Some statewide PAs stipulate the procedures on how to address changes in project scope and their impact on previous effect findings.
Look for this symbol for the key points in the Section 106 process to check for plan/project updates.
Step 3: Conduct Early Consultation
The FHWA online Section 106 tutorial states,
It is also of utmost importance to begin consultation among appropriate parties early in project development while options for project design or alternatives are still open. This will help to avoid surprises or misunderstandings that can lead to project delays and increased project costs. (FHWA 2023c)
As one SHPO survey respondent noted,
effective consultation should occur during the planning phase of a project, months or even years before any construction activity commences. Federal agencies and preservation stakeholders alike should be willing to explore a variety of possibilities for agreement in an active exchange of ideas. (emphasis added)
Early engagement with the consulting parties is an opportunity to gather information and discuss the possible effects on known and potential historic properties. Although the project design process is in the early stages, FHWA, state DOTs, and their consultants can provide sufficient information (e.g., project definition and potential effects on historic properties based on available records) to engage with the consulting parties. Engaging the consulting parties early in the consultation process might reveal important information about unrecorded or unevaluated resources in the APE and potentially be used in project design decision-making to avoid or minimize effects on these properties early in project design.
State DOTs and SHPOs and consultants found early engagement with state and local preservation organizations (e.g., state and local historical societies and commissions) to be beneficial in a variety of ways, including the following:
- Provides an understanding of the broader context for establishing significance of a resource of value to these organizations and their communities.
- Provides essential information regarding a property’s history.
- Assists in setting priorities for what is most important for these organizations and their communities and then in working with these organizations and communities to consider ways of minimizing any potential Adverse Effects on what they consider to be properties of value.
- Establishes a collaboration and partnership with these organizations and their communities. When these organizations and communities agree with FHWA and a state DOT’s effect findings, this helps with SHPO consultation and obtaining SHPO concurrence with the effect findings.
Many state DOTs and their private-sector consultants noted the need to educate some consulting parties—especially local governments and state and local historical organizations—about the Section 106 process and their role in the process. When doing so, it is important to use clear and effective language to avoid misunderstandings between cultural resource practitioners and consulting parties. Use of Section 106 concepts and technical terms that consulting parties may not understand or may interpret differently can create confusion if the terms and concepts are not articulated clearly. Some state DOTs have websites designed to assist consulting parties and the public in understanding the Section 106 process and how they can participate. One state DOT noted, “Generally, once local preservation organizations understand their [consulting party] role and the 106 process, they are engaged, useful, and pleased to be involved.”
Additional Information and Resources
- Public Participation in Section 106 (CDOT 2022).
- Environmental Review Toolkit, Section 106 Tutorial (FHWA 2023b).
- Environmental Review Toolkit, Section 106 Tutorial: Section 106 Participants: Roles and Responsibilities: Consulting Parties (FHWA 2023d).
- Protocol for Identifying Consulting Parties. Section 3.1 in Section 106 Cultural Resources Manual (GDOT 2019b).
- Iowa DOT Public Involvement Projects, Share Your Feedback on Projects and Studies (Iowa DOT 2024).
- PATH (Pennsylvania Transportation and Heritage) (PennDOT n.d.).
- 5 Things to Know: Section 106 and Consulting Parties (Diehl 2015).
- TxDOT’s Historic Preservation Process (Section 106). Webinar Series. (TxDOT 2024b).
Step 4: Define the APE (36 CFR Part 800.4(a)(1))
An APE is defined in 36 CFR Part 800.16(d) as
the 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. The area of potential effects is influenced by the scale and nature of an undertaking and may be different for different kinds of effects caused by the undertaking.
As noted, the scale and nature of a project influences the extent of the APE on the basis of the types of potential effects: direct, indirect, and reasonably foreseeable, as well as cumulative.
Some state DOTs start with a broad initial APE, often termed a “study area,” for initiation of Section 106 consultation. The study area is then modified and defined as the APE once comments are received by agencies and other consulting parties or once the project design is advanced sufficiently to understand the potential effects. As one state DOT noted, the APE should be determined after project designs have advanced through most reasonable alternatives, but early enough to allow the completion of cultural resource studies and appropriate avoidance and minimization of effects.
Confirm Project Activities
- Check in with state DOT and consultant engineers, designers, and planners to confirm a comprehensive list of project activities and their locations before determining the final APE.
- Obtain updated project plans, maps, and so forth to aid in APE definition.
State DOTs and SHPOs offer the following considerations for defining an APE:
- Consider multiple factors, such as potential physical, visual, and auditory impacts.
- Consider and include areas used for staging and temporary construction. Although these areas may not be known at the time of project scoping, they will need to be considered as the project develops.
- Set the APE in relation to the project, not in relation to the aboveground properties that are or may be present.
- Consider the possibility that a historic property may extend beyond what might be an initial APE based on a project’s viewshed. For example, a farm with buildings and lands outside the viewshed of a project may still be in the APE, because these buildings and lands may be contributing elements to the farm’s significance. In this case, it is necessary to assess the National Register eligibility of the entire farm to determine effects.
- Areas previously disturbed should be included in the APE if they are to be disturbed again by the project.
- Projects with vertical disturbance should consider the depth of disturbance from the activity, disturbance from previous land use, degree of alteration of existing surface features, permanence of the project, and reversibility.
Additional Information and Resources
- Guide to Above-Ground APEs and Guide to Archeological APEs (TxDOT 2024a).
- Procedures for Determining the Area of Potential Effects. Section 4.1 in Section 106 Cultural Resources Manual (GDOT 2019a).
- Early Coordination: Area of Potential Effects (APE). Chapter III, Section D, in The Transportation Project Development Process: Cultural Resources Handbook (PennDOT 2021).
Step 5: Identify Historic Properties (36 CFR Part 800.4)
Identify Historic Property Significance and Essential Physical Features
To document how a project is affecting a historic property, it is critical to have a thorough understanding of each property’s significance in terms of the National Register criteria for evaluation and the property’s essential physical features. A thorough evaluation of a property’s significance should demonstrate that all appropriate National Register criteria for evaluation (Criteria A, B, C, and D) were considered. NPS provides the following important key concepts to consider when a statement of significance is being developed:
Be selective about the facts you present. Consider whether they directly support the significance of the property. Avoid narrating the entire history of the property. Focus on the events, activities, or characteristics that make the property significant. For example, identify significant architectural details if a building is significant for its design, or explain the role the property played in local commerce or industry if its significance lies in those areas. (NPS 2023b)
A National Register evaluation should also include the following:
- Level (local, state, or national) of significance;
- Period of significance;
- Full list of contributing and noncontributing features within the historic property boundary, if appropriate; and
- Essential physical elements and character-defining features of properties that will be affected.
Essential physical features are defined in National Register Bulletin 15, How to Apply National Register Criteria for Evaluation, as “those features that define both why a property is significant (Applicable Criteria and Areas of Significance) and when it was significant (Periods of Significance)” (NPS 1995).
Transportation projects often encounter several physical features in historic properties that should be assessed for their contributing or noncontributing status if included within the historic property boundary. For the built environment, these might include the following:
- Walls and fences;
- Hedges, windbreaks, and other landscape features often found along property boundaries;
- Trees and landscaping;
- Sidewalks and driveways; and
- Ancillary structures.
Additional Information and Resources
- Preparing a Concise Significance Statement (NPS 2023b).
Define Historic Property Boundaries
Well-defined and thoughtfully researched historic property boundaries are critical to making a well-reasoned and defensible finding of No Effect or No Adverse Effect. State DOT and SHPO survey and interview respondents emphasized that one cannot come to a finding of No Adverse Effect if the boundaries of a historic property are not known and not accurately mapped. Defining the boundaries early in the process is important, so that they are consistent throughout the consultation process.
Following are specific reasons given by state DOT and SHPO respondents as to why well-defined historic property boundaries are important:
- “We have scope creep, and project actions change from original investigations, so we put a well-defined boundary around farmstead, and we say no effect and we will avoid it, but then changes to take out fence and first row of trees in orchard, and good thing we had a good boundary because now we can really have a good determination [if the project changes].” —State DOT Respondent
- “As an example, for farmsteads, do you include the acreage with the fields or just the buildings and then include the field as contributing to the setting. We have seen it both ways, but it is important to define to accurately determine effects depending on what exactly the project is impacting.”—SHPO Respondent
- “Being able to say we know what the boundary of this farmstead is, we know what’s important and what’s not, this is how we changed the project. For example, the roundabout is already as small as it can be.”—State DOT Respondent
State DOTs also considered understanding property boundaries important to assessing the nature of a project’s impact on a property in the context of Section 4(f) of the U.S. Department of Transportation Act of 1966. If a project extends, for example, into a small portion of a property boundary and as a result would have only a minor impact to the property (resulting in a finding of No Adverse Effect under Section 106), then the project, in relation to this property, might be processed under Section 4(f) as a de minimus impact finding. This Section 4(f) approval option requires the least documentation and fewest steps of the three Section 4(f) approval options when a project takes land from a protected Section 4(f) resource, such as a historic property.
The National Register Bulletin Defining Boundaries for National Register Properties (NPS 1997a) provides useful guidance for defining the boundaries of a historic property and includes the following overall guidelines for selecting boundaries for historic properties:
- Select boundaries to encompass but not exceed the extent of the significant resources and land areas that make up the property.
- Include all historic features of the property but do not include buffer zones or acreage that does not directly contribute to the significance of the property.
- Exclude peripheral areas that no longer retain integrity because of alterations in physical conditions or setting caused by human forces, such as development, or natural forces, such as erosion.
- Include small areas that are disturbed or lack significance when they are completely surrounded by eligible resources. Doughnut holes are not allowed. Define a discontiguous property when large areas lacking eligible resources separate portions of the eligible resource.
National Register Bulletin 16A (NPS 1997a) also has specific guidelines for selecting boundaries for buildings, structures, and objects; historic sites; historic and architectural districts; and archaeological sites and districts.
Identify and Explicitly List Associated Aspects of Integrity for Each Historic Property
As noted earlier, a finding of Adverse Effect applies when “an undertaking 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, materials, workmanship, feeling, or association” (36 CFR Part 800.5(1)). These seven aspects of integrity are described in National Register Bulletin 15 (NPS 1995). The bulletin goes on to outline the following steps in assessing integrity:
- Define the essential physical features that must be present for a property to represent its significance.
- Determine whether the essential physical features are visible enough to convey their significance.
- Determine whether the property needs to be compared with similar properties.
- Determine, based on the significance and essential physical features, which aspects of integrity are particularly vital to the property being nominated and whether they are present.
Many of the survey and interview respondents noted the importance of having a thorough understanding of which aspects of integrity convey the significance of a property in order to assess the effects of a project on that property. As one state DOT respondent noted, “Fully supporting the aspects of integrity that are critical to a property’s significance will help ensure that upon its review, the SHPO concurs on project findings and recommendations.”
National Register Bulletin 15 provides some guidance on what aspects of integrity are important under each National Register criterion (NPS 1995):
Criteria A and B
A property important for association with an event, historical pattern, or person(s) ideally might retain some features of all seven aspects of integrity: location, design, setting, materials, workmanship, feeling, and association. Integrity of design and workmanship, however, might not be as important to the significance, and would not be relevant if the property were a site. A basic integrity test for a property associated with an important event or person is whether a historical contemporary would recognize the property as it exists today.
For archeological sites that are eligible under Criteria A and B, the seven aspects of integrity can be applied in much the same way as they are to buildings, structures, or objects. It is important to note,
however, that the site must have demonstrated its ability to convey its significance, as opposed to sites eligible under Criterion D where only the potential to yield information is required.
Criterion C
A property significant under Criterion C must retain those physical features that characterize the type, period, or method of construction that the property represents. Retention of design, workmanship, and materials will usually be more important than location, setting, feeling, and association. Location and setting will be important, however, for those properties whose design is a reflection of their immediate environment (such as designed landscapes and bridges). . . .
Criterion D
For properties eligible under Criterion D, setting and feeling may not have direct bearing on the property’s ability to yield important information. Evaluation of integrity probably will focus primarily on the location, design, materials, and perhaps workmanship.
Make a Reasonable and Good Faith Effort to Identify Historic Properties
Section 800.4(b)(1) of 36 CFR Part 800 states that federal agency officials shall make a “reasonable and good faith effort” to identify historic properties. Depending on the size and scale of a project, determining what is an appropriate level of effort for identifying a historic property can be challenging. Several respondents also stated that their biggest challenge was establishing an appropriate APE and level of effort for identification that was commensurate with the project. One state DOT noted, “We also struggle with what is the appropriate level of effort to identify what might be a very large rural historic district when the project involves an on-line replacement of a culvert with minimal right-of-way acquisitions in the surrounding quadrants. What identification of resources is commensurate with such a small scope of work?” One SHPO noted the following challenge: “Properly defining APE for projects that generate foreseeable associated development.”
ACHP provides some guidance on how to determine what constitutes a reasonable and good faith effort (ACHP 2011b). The following ACHP guidance references the regulations at 36 CFR Part 800.4(b)(1), noting that they set out several factors and actions an agency must consider in determining what is a reasonable and good faith effort (ACHP 2011b):
- Past planning, research, and studies;
- The magnitude and nature of the undertaking and the degree of federal involvement;
- The nature and extent of potential effects on historic properties;
- The likely nature and location of historic properties in the APE;
- Consultation with the Secretary’s Standards and Guidelines for Identification for guidance on the subject; and
- Consideration of other applicable professional, state, tribal, and local laws, standards, and guidelines.
The ACHP guidance in Table 1 outlines what an identification plan should include and what criteria should be met to meet the good faith standard.
Just as important, ACHP also provides the following list of what a reasonable and good faith identification effort does not require (ACHP 2011b, emphasis added):
The “approval” of a SHPO/THPO or other consulting party. The ACHP and the SHPO/THPO and other consulting parties advise and assist the federal agency official in developing its identification efforts, but do not dictate its scope or intensity.
Identification of every historic property within the APE. One of the reasons the ACHP’s regulations contain a post-review discovery provision (36 CFR Part 800.13) is that a reasonable and good faith effort to identify historic properties may well not be exhaustive and, therefore, some properties might be identified as the project is implemented.
Table 1. What an identification plan should include and criteria for good-faith standard.
| Reasonable Identification | Good Faith |
|---|---|
|
|
Source: ACHP (2011b).
Investigations outside of, or below, a properly documented APE. The Section 106 process does not require that the agency search for all historic properties in a given area. Because the APE defines the geographic limits of federal agency responsibility for purposes of Section 106 review, identification efforts are carried out within its boundaries.
Ground verification of the entire APE. In many cases, areas can be considered to have a certain probability of containing historic properties based on current knowledge. This or similar characterizations can be used to justify where within the APE most identification efforts will or should be targeted. Predictive models that have been tested and found to be reasonably efficient can also assist federal agencies to meet the “reasonable and good faith” identification standard.
Additional Information and Resources
- Preparing a Concise Significance Statement (NPS 2023b).
- Defining Property Boundaries for National Register Properties (NPS 1997a).
- How to Complete the National Register Registration Form (NPS 1997b).
Step 6: Assess Effects on Historic Properties (36 CFR 800.5)
As a reminder, the results of identifying National Register–listed or –eligible properties within the APE (36 CFR Part 800.4(d)) are a finding of No Historic Properties Affected or a finding that historic properties will be affected. A finding of No Historic Properties Affected is made when no historic properties are present within an APE or when historic properties are present but the
undertaking will have No Effect on these properties. If historic properties will be affected by a project, the next step is to assess whether or not the project will have an Adverse Effect on these properties, in accordance with 36 CFR Part 800.5. This is done by applying the criteria of Adverse Effect laid out in 36 CFR Part 800.5(a)(1). The outcomes of this assessment are either a finding of No Adverse Effect or a finding of Adverse Effect. If the outcome is an Adverse Effect, several of the state DOT respondents noted that the next step would be to work with their project or consultant engineers, designers, and planners to avoid or minimize the Adverse Effects, with the goal of achieving a finding of No Adverse Effect.
Avoid or Minimize Effects
Several state DOTs have specific procedures whereby their engineers, project designers, and environmental and cultural resource staff coordinate their reviews of project impacts and, if possible, modify project designs to avoid any Adverse Effects. The results of this coordination are often tracked in an environmental project database, as discussed in “Track and Monitor Implementation of Conditions” (next page). Some state DOTs have developed and published typical avoidance and minimization measures, some of which might be employed early in the project development process. Following is a sample from the manuals and guidance of these DOTs:
- Relocate alignment or shift project activities.
- Remove or reduce proposed easement or required right-of-way (ROW) within historic property boundaries.
- Reduce construction limits within or adjacent to historic property boundaries.
- Use alternative construction techniques to minimize vibration effects.
Confirm Project Activities
- Check in with agency and consultant engineers, designers, and planners to update project information (e.g., right-of-way, borrow areas, construction staging areas).
- Obtain or develop supporting visual documentation (e.g., photographs, maps, plans) on the nature of project activities and their effects on historic properties.
Case Study: U.S.-79 Widening and Improvements, Texas
Finding: No Adverse Effect.
Project: Safety and mobility improvements to U.S.-79, including widening, installation of a raised median, construction of an underpass and overpass, driveway modifications, and installation of a shared-use path.
Finding of Effect Overview: Among other SHPO stipulations, effective consultation resulted in the relocation of a proposed clover-leaf interchange to minimize effects on an adjacent historic property.
Several avoidance and minimization measures might be used for both direct and indirect effects on historic districts and other properties where the setting is an important aspect of integrity.
- Redesign lane, curb, sidewalk, and other roadway improvements to be compatible in design, scale, and materials with the existing National Register–listed or –eligible property or district. For example, reuse or match existing street paving or sidewalk paving materials (e.g., brick, hexagonal pavers).
- Use signs, street lighting, traffic lighting, and so forth that will be compatible with the National Register–listed or –eligible property or district.
- Create an earth berm or other form of landscaped barrier to limit visual and audible intrusion into a National Register–listed or –eligible property or district.
- Create an at-grade roadway instead of an elevated roadway that would significantly affect views from and toward the National Register–listed or –eligible property.
Prepare/Document a No-Adverse-Effect Finding Based on Agreed-Upon Conditions
The measures that have been outlined would be incorporated into the project design at the time of NEPA and Section 106 reviews. However, avoidance and minimization measures can sometimes be implemented after the completion of the Section 106 process and NEPA review—in some cases, during preconstruction and construction activities. In these instances, these measures are included in the preconstruction and construction documents and contracts as environmental commitments or project or job special provisions (PSP/JSP).
Case Study: I-285 Flyover Ramps, Georgia
Finding: No Adverse Effect.
Project: Mobility improvements, including two new barrier-separated express lanes, elevated and at grade.
Finding of Effect Overview: To support a finding of No Adverse Effect, the state DOT provided the SHPO with photographic simulations of the proposed express lanes from within an adjacent historic district as a means of analyzing potential visual effects.
When these measures to avoid and minimize Adverse Effects will take place after the completion of the Section 106 process, the commitments for avoidance and minimization are considered conditions that are imposed to avoid the Adverse Effect. As stated in 36 CFR Part 800.5(b):
The agency official, in consultation with SHPO/THPO, may propose a finding of No Adverse Effect when the undertaking’s effects do not meet the criteria of Adverse Effect or the undertaking is modified or conditions are imposed, such as the subsequent review of plans for rehabilitation by SHPO/THPO to ensure consistency with the Secretary’s standards for the treatment of historic properties (36 CFR Part 68) and applicable guidelines, to avoid Adverse Effects [emphasis added].
Some state DOTs have made a finding of No Adverse Effect based on conditions whereby design/project plans must be reviewed by the SHPO to ensure that project plans comply with the U.S. Secretary of the Interior (SOI) standards.
Track and Monitor Implementation of Conditions
A critical element of using a set of conditions to get to a No-Adverse-Effect finding is to have in place a mechanism for tracking implementation of these conditions. Section 106 Delegation Programmatic Agreements: Review & Best Practices (Graham and Klein 2019b) and Quick Reference Guide: Preparing & Implementing State Department of Transportation Section 106 Delegation Programmatic Agreements for the Federal-Aid Highway Program (Graham and Klein 2019a) provide some best practices to ensure conditions are being tracked and implemented:
- Develop electronic tracking systems with regular reporting requirements and train new staff to use these systems.
- Create a shared team calendar to stay on track with commitments.
Some state DOTs have electronic databases to track conditions as part of their overall tracking of environmental commitments.
Additional Information and Resources
- Cultural Resources: Assessment of Effects (GDOT 2023).
- Environmental Commitments Database (INDOT n.d.).
- NCHRP Web-Only Document 311: Improving the Efficiency and Consistency of Section 106 Compliance for State DOTs: Strategies for Project-Level Programmatic Agreements (Pettis et al. 2021).
- Construction Procedures for Discovery of Archaeological and Historical Objects (WSDOT n.d.).
Case Study: I-495 (Capital Beltway) NEXT Project, Virginia
Finding: No Adverse Effect With Conditions.
Project: Extension of the 495 Express lanes by 2.5 miles to provide congestion relief, provide more travel choices, improve travel reliability, and enhance safety on the corridor from Dulles to the George Washington Memorial Parkway.
Finding of Effect Overview: Given the important elements of the historic property and cultural landscape of the NPS George Washington Memorial Parkway and specific signage requests by NPS, the Virginia DOT developed a visualizations booklet to provide design options and work with consulting parties to reach a finding of No Adverse Effect. Conditions were implemented concerning the protection of archaeological sites, stone wall designs, and landscape elements specified by NPS.
Communicate with Consulting Parties and the Public on Determination of Effects
Effective Practices for Consulting and Communication with Consulting Parties
When asked about effective approaches for establishing and maintaining positive relationships between state DOTs and SHPOs, most state DOTs and SHPOs pointed to frequent communication between the two agencies in a variety of forms: informal (usually phone calls), regular project/consultation meetings, and consistency in the information required for a successful project review. Informal communication (i.e., being able to pick up the phone and talk through an issue, whether missing information on a submittal or working through a complex affects assessment) seemed to be the most valuable approach for those agencies that had a positive relationship. In one state, the SHPO staff member serving as a liaison to FHWA and the state DOT (the position is funded by FHWA and the state DOT) communicates frequently with the transportation agencies on projects and says it “helps the process immensely.” SHPOs and state DOTs also pointed to the value of regular meetings to discuss upcoming projects, historic property concerns, and other issues. These meetings allowed staff from both agencies to get ahead of any issues and work through problems before the official effects finding was sent for review. As an example, one state DOT has standing monthly project meetings with the SHPO and consulting parties for project reviews.
Consistency in what each agency expects in terms of information and documentation—or what the state DOT expects from its consultants or the SHPO expects from the state DOT—is also key in establishing and maintaining a positive relationship and successful findings of No Effect and No Adverse Effect. This consistency of information was seen as crucial throughout the Section 106 process, including consistent property information for National Register evaluations, detailed project information to assess impacts, and consistent analysis of effects on historic properties.
Most agencies try to assure consistency of information through guidance and standardized forms and tools, which also provide consistency when staffing changes occur within the agencies. Links to guidance, forms, and tools that agencies have found useful are provided in Appendix E of the conduct of research report for NCHRP 25-65, which is available on the National Academies Press website (nap.nationalacademies.org) by searching for NCHRP Web-Only Document 412: Creating a Handbook for Successful No-Effect and No-Adverse-Effect Section 106 Determinations. Although some of these resources may seem simple, they do provide a framework for consistent information that facilitates the Section 106 process and builds trust between agencies. It is often the lack of sufficient and consistent information in the Section 106 process that leads to disputes over findings of No Effect and No Adverse Effect. One SHPO respondent commented,
We deal with over 50 different agencies and entities, and the PA (as all PAs should be) is built on a level of trust, and because of that working relationship and mutual respect, things are avoided in any sort of elevation because we pick up the phone and talk to each other. We don’t get into letter-writing campaigns if we can avoid it, and we can go directly to the person submitting the documentation to ask questions/concerns we may have.
Communicating Findings to the Public
Some state DOTs and SHPOs cited a variety of different ways in which information on effects findings are communicated to the public:
- Public outreach programs or dedicated public outreach/public involvement officers,
- Project-specific websites,
- Statewide project websites, and
- NEPA public meetings and other public involvement efforts.
Case Study: Route 16
Improvements, New Hampshire
Finding: No Adverse Effect.
Project: Pavement rehabilitation and drainage upgrades, including box reconstruction, two 12-foot travel lanes, tree clearing, and stone-lining of embankment.
Finding of Effect Overview: Through robust consultation with consulting parties and alternative methods of resource identification, including the use of a state-specific policy on stone walls, the state DOT reached an agreement with the SHPO on a finding of No Adverse Effect.
Several state DOTs stressed the importance of communication of these findings to consulting parties and the public as part of the consultation process:
- “If we can show how we have avoided or minimized effects, that is usually a more positive conversation than talking about the categories of effects.”—State DOT Respondent
- “The locals/project sponsors are learning that PI [public involvement] is a critical component to achieving SHPO concurrence and ensuring the project takes into consideration effects on historic properties.”—State DOT Respondent
- “[Our state] has an online posting system that is very successful in sharing all our Section 106 documentation with the public. It allows us to increase our transparency, easily share documents with CPs [consulting parties] and other interested parties, and helps engage groups and individuals.” —State DOT Respondent
Step 7: Resolve Disputes over Findings of No Effect and No Adverse Effect
During the consultation process, disputes and disagreements can arise over the effects findings or the elements used in making the effects assessment. State DOTs and SHPOs noted the following issues that were the focus of past disputes (in order from most frequent to less frequent):
- Level of effort to identify historic properties,
- Eligibility findings,
- Defining the APE,
- Defining the aspects of integrity,
- Assessing noise effects, and
- Assessing visual impacts.
Although the information outlined in Steps 2 through 6 will assist state DOTs in avoiding many of these issues, disputes may still arise between agencies, consulting parties, and the public. Many state DOTs, SHPOs, and FHWA have used the practices outlined here to effectively address the concerns of consulting parties and to resolve disputes.
ACHP’s Protecting Historic Properties: A Citizen’s Guide to Section 106 Review provides ideas to make the most of consultation with a diverse group of consulting parties (ACHP n.d.). Often, consultation involves participants with a wide variety of concerns and goals. The focus of some may be preservation, whereas the focus of others may be time, cost, and the purpose to be served by the project. Effective consultation occurs when you
- Keep an open mind,
- State your interests clearly,
- Acknowledge that others have legitimate interests and seek to understand and accommodate them,
- Consider a wide range of options,
- Identify shared goals and seek options that allow mutual gain, and
- Bring forward solutions that meet the agency’s needs.
Creative ideas about alternatives—not complaints—are the hallmarks of effective consultation.
If the FHWA division office, state DOT, SHPO, other consulting parties, and the public are unable to resolve disputes, there is support from FHWA headquarters and ACHP that can help resolve disputes without formal ACHP involvement. FHWA’s FPO, whose primary role is to provide FHWA division offices guidance and assistance in completing the Section 106 process, helps to resolve disputes between agencies, consulting parties and the public. When necessary, the FHWA FPO works closely with the ACHP FHWA liaison, who also provides Section 106 technical assistance, to resolve disputes through negotiation to avoid a formal dispute involving ACHP. Most disputes brought to the FHWA FPO are resolved through these negotiations. [See the case study in the appendix on I-695 Transportation Systems Management and Operations (TSMO) in Maryland.]
Additional Information and Resources
Protecting Historic Properties: A Citizen’s Guide to Section 106 Review (ACHP n.d.).
