Preparing Successful No-Effect and No-Adverse-Effect Section 106 Determinations State of Practice Survey
RESOURCES
SEE RESPONSES TO QUESTIONS ABOVE ON THE FOLLOWING PAGES
| 2-2. What is your role? | 2-3. Does your company/organization have any guidance, forms, tools, etc. that address the following? (Select all the apply) | Defining a project’s APE, as the initial step in laying the foundation for subsequent determinations of effect | Applying National Register eligibility criteria, identifying CDFs, identifying, and assessing the aspects of integrity associated with a property | Defining the boundaries of a property | Making findings of no effect and no adverse effect and how to document these findings | Procedures for communicating these findings with SHPOs/THPOs/NHOs, other CPs, and the public | Other | 2-4. Do you have procedures or guidelines on reevaluating documentation for National Register listed and eligible properties, based on when these National Register findings were made? | Yes | No | 2-4a. If “Yes” please explain. If “No” write “N/A” |
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| Architectural Historian | No | x | x | x | x | Unwritten “institutional knowledge” but no documented guidelines | x | When previous documentation is not adequate to current standards/uses, we usually append a memo with the previous documentation to update to current standards (at least, to meet the need and purpose of the project). | |||
| Preservation Planner/106 manager | No | I personally don’t trust anything prior to 1990, but this is not policy. | n/a | ||||||||
| Historic Structures Program Manager | No | N/A | |||||||||
| Archaeologist, Historian, Project Manager | No | x | N/A | ||||||||
| Architectural Historian | No | x | N/A | ||||||||
| Senior Archaeologist/Project Manager | We typically provide guidance more practically: referring to previously prepared examples; project-specific discussion; etc. No pre-made, general guidance/forms that I’m aware of. | x | N/A | ||||||||
| archaeological Principal investigator | No | x | n/a | ||||||||
| Project Archaeologist/Principal Investigator | x | x | x | N/A | |||||||
| Principal Archaeologist | We follow the SHPO guidelines and have standard language we use in our reports. | x | x | x | x | x | We follow SHPO guidance as well as guidance from the State DOT | x | See above | ||
| Principal, Principal Investigator, Cultural Lead, Owner | x | x | x | x | x | N/A |
PRACTICES, APPROACHES, and EXPERIENCES
SEE RESPONSES TO QUESTIONS ABOVE ON THE FOLLOWING PAGES
| 2-2. What is your role? | 3-1. What are the elements needed in making a well-reasoned and defensible finding of no effect and no adverse effect? Below are some examples. Select all that apply. Please add any other elements you consider important: | Well-defined historic property boundaries | Explicit identification of historic property significance and character-defining features | Explicit identification of associated aspects of integrity | Clear and comprehensive list of project activities and their locations | Other | 3-1a. Please list any other elements you consider important that did not fit above. If none, write “None”. | 3-2. Have you applied indirect effects to your determinations of no effect or no adverse effect? | Yes | No | Other | 3-2. Have you applied cumulative effects to your determinations of no effect or no adverse effect? | Yes | No | Other | 3-2b. What challenges if any, have you experienced in making or reviewing direct vs. indirect and cumulative effects? | 3-3. What challenges have you experienced in making or reviewing no effect and no adverse effect findings for certain types of transportation projects (e.g., bridge replacements, rural capacity projects, etc.)? | 3-3a. Have some types of projects been more challenging than others? | 3-3b. If “Yes” please explain. If “No” write “N/A”. |
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| Architectural Historian | x | x | x | x | x | Inconsistent federal guidance among agencies about what constitutes a direct or indirect effect (for example - FHWA considers viewshed, noise effects, etc. as direct effects, but the USACE considers them indirect effects). No 106-specific definitions or examples of indirect effects or cumulative effects - usually end us using the NEPA definition and adapting it to a 106 context. | Communication with engineers to ensure assessment of effects report capture all project activities. Its sometimes just difficult to ‘visualize’ what the end product will be. | Yes | New location roadways are the most difficult to assess, in my opinion. There’s just a lot to capture - new materials, new setting, new circulation patterns, etc. Its like trying to predict the future. | ||||||||||
| Preservation Planner/106 manager | x | x | x | Appropriate APE | x | x | SHPO inconsistency | temporary 4(f) uses are poorly managed, if even acknowledged in Wisconsin | Yes | SHPO and FRA/USDOT-Volpe have no idea how to implement 4(f) or use it effectively. | |||||||||
| Historic Structures Program Manager | x | x | x | x | Well-defined proposed project boundaries. | Yes | Not having well-defined project boundaries | Not having well-defined project boundaries | Yes | transportation alignments changing repeatedly during evaluations | |||||||||
| Archaeologist, Historian, Project Manager | Knowledge of what aspects are important in the community | x | x | x | More general understanding of the overall significance of the property to scholarly or local communities is always helpful | x | x | I find that they are usually not taken seriously in cultural resource studies, but something is ginned up to fill the requirement. I’ve never seen them be crucial. | Sometimes people just want something to be significant because it is old or pretty. | Yes | Projects are most difficult when properties are beloved to somebody but not really significant under the criteria, or when they meet the criteria but nobody really cares abou them. | ||||||||
| Architectural Historian | x | x | x | TxDOT published studies and regulations, NPS Bulletins | x | x | lack of applicable reference materials to assist in the determination review | Defining the setting of a project area and identifying effects such as noise and vibration | Yes | Vegetated medians not associated with a platted subdivision add to character of an area but are difficult to document creation and then justification of eligibility. more information needed on landscape views in urban or suburban areas. |
| 2-2. What is your role? | 3-1. What are the elements needed in making a well-reasoned and defensible finding of no effect and no adverse effect? Below are some examples. Select all that apply. Please add any other elements you consider important: | Well-defined historic property boundaries | Explicit identification of historic property significance and character-defining features | Explicit identification of associated aspects of integrity | Clear and comprehensive list of project activities and their locations | Other | 3-1a. Please list any other elements you consider important that did not fit above. If none, write “None”. | 3-2. Have you applied indirect effects to your determinations of no effect or no adverse effect? | Yes | No | Other | 3-2. Have you applied cumulative effects to your determinations of no effect or no adverse effect? | Yes | No | Other | 3-2b. What challenges if any, have you experienced in making or reviewing direct vs. indirect and cumulative effects? | 3-3. What challenges have you experienced in making or reviewing no effect and no adverse effect findings for certain types of transportation projects (e.g., bridge replacements, rural capacity projects, etc.)? | 3-3a. Have some types of projects been more challenging than others? | 3-3b. If “Yes” please explain. If “No” write “N/A”. |
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| Senior Archaeologist/Project Manager | x | x | Local and/or descendant communities’ interpretations of significance and the property’s role to them. | x | x | With indirect and cumulative, I struggle with finding that “enough” point: “you’ve projected effects long enough into the future” or “you’ve looked far enough out from the project” or “you’ve considered enough scenarios/factors”. It’s not that I’m interested in just checking that box off so “tell me what I need to do.” It’s more about struggling to determine that I’ve really considered these future unknowns well enough. Should I include the potential for alien invasion? (an exaggeration, but it speaks to my point). | Considering the implications of effects from future development that would come from increased roadway capacity. | Some projects are just naturally harder than others. In my opinion, there isn’t a hard and fast rule on specific types, though. | N/A | ||||||||||
| archaeological Principal investigator | x | x | x | x | The number of similar sites excavated in the region. | x | x | Explaining to Project Managers why they need to consider indirect effects. | Poorly defined project activities. | Yes | HMA overlay/repaving projects. | ||||||||
| Project Archaeologist/Principal Investigator | x | x | x | x | None | x | x | Changing standards re: direct vs. indirect effects; inadequate time to research cumulative effects fully | Inconsistent standards used by agency report reviewers | No | N/A | ||||||||
| Principal Archaeologist | x | x | x | x | View to from the property to the project and the vibration from project activities are also considered. | x | x | The client doesn’t understand cumulative effects and different opinions on what is indirect and what is cumulative, even with the SHPO reviewers or State DOT reviewers. | One of the biggest challenges is that SHPO staff may disagree on the determination within the same office and tell you different things on the same project. It’s very confusing. They get mad at the consultant when we ask them for consistency. | Yes | Some projects cross federal land and the federal archaeologist/architectural historian disagrees with the DOT cultural person or they need more training with regard to compliance and get confused. In one case the federal archaeologist could not remember what she told us and want further revisions to our reports because of this. It happened multiple times. I think it was because she was overwhelmed, and they needed to hire someone to help. |
| 2-2. What is your role? | 3-1. What are the elements needed in making a well-reasoned and defensible finding of no effect and no adverse effect? Below are some examples. Select all that apply. Please add any other elements you consider important: | Well-defined historic property boundaries | Explicit identification of historic property significance and character-defining features | Explicit identification of associated aspects of integrity | Clear and comprehensive list of project activities and their locations | Other | 3-1a. Please list any other elements you consider important that did not fit above. If none, write “None”. | 3-2. Have you applied indirect effects to your determinations of no effect or no adverse effect? | Yes | No | Other | 3-2. Have you applied cumulative effects to your determinations of no effect or no adverse effect? | Yes | No | Other | 3-2b. What challenges if any, have you experienced in making or reviewing direct vs. indirect and cumulative effects? | 3-3. What challenges have you experienced in making or reviewing no effect and no adverse effect findings for certain types of transportation projects (e.g., bridge replacements, rural capacity projects, etc.)? | 3-3a. Have some types of projects been more challenging than others? | 3-3b. If “Yes” please explain. If “No” write “N/A”. |
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| Principal, Principal Investigator, Cultural Lead, Owner | Clear communication and outreach with descendant communities, and incorporation of their perspective on identification, integrity, effects | x | x | x | x | Complete identification of CDFs, especially related to landscape, biota, and atmosphere. | x | x | Inability of reviewer to understand indirect and cumulative effects, especially when a property is eligible under criterion a and/or b. | Misunderstanding of transportation networks, which often have historical value related to several times, groups, or uses. This is especially relevant for historic bridge replacements. Reviewers within DOT are usually archaeologists ignorant about built environment, tribal, or culturally significant places. Another major problem is the “punting” of ethnographic identification into the mitigation phase, where it is then too late to be considered in project design. | Yes | My work is almost exclusively ethnographic, with tribal landscapes being the most common resource identified. These landscapes are usually districts eligible under criterion a or b. Trying to communicate the values of a landscape district that may also include contributing archaeological properties usually works well at the SHPO level, but it must get past young archaeologists who do not yet have the skills to understand such places and their management. This is even more complicated if a TCP is involved, and that same DOT reviewer seems not understand the need for community input on integrity and significance. |
SEE RESPONSES TO QUESTIONS ABOVE ON THE FOLLOWING PAGES
| 2-2. What is your role? | 3-4. Have you experienced challenges in making or reviewing no effect and no adverse effect findings for certain property types? | 3-4a. If yes, please indicate the type of resource(s), if any, that presented the challenges identified above (select all that apply): | Historic bridges | Archaeological sites | Linear historic properties | Historic/Cultural properties | Other | 3.4b. Please explain challenges experienced with the property types identified above. | 3-5. Do you have experience in applying no effect and no adverse effect findings to TCPs? | Yes | No | 3-5a. Do you have experience in applying no effect and no adverse effect findings to archaeologic al sites when consulting with tribes? | Yes | No | 3-6. Have you had experience with disagreement s or disputes on no effect and no adverse effect findings? | Yes | No | 3-6a. If “Yes” what was the substantive nature of any disagreement? | 3-7. Do you have experience in applying and interpreting the Secretary of the Interior’s Standards for the Treatment of Historic Properties in the context of findings of no adverse effect (such as for findings of no adverse effect with conditions)? | Yes | No | Maybe |
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| Architectural Historian | x | Ranch houses - how much is too much change to the (often) character-defining front lawn? | No | x | x | x | No | X | ||||||||||||||
| Preservation Planner/106 manager | x | I have never seen any guidance from my state DOT or USDOT on evaluating linear resources. | No | x | x | That 4(f) review had to be simultaneous with 106 because final design options were made before 4(f) even began. | Yes | X | ||||||||||||||
| Historic Structures Program Manager | x | x | x | Project boundaries constantly being tweaked during review process. | No | x | x | x | Yes | X | ||||||||||||
| Archaeologist, Historian, Project Manager | Landscapes | x | x | For archaeological sites, people want excavations of sites with artifacts even where there is no reasonable chance of acquiring important knowledge. For some kinds of resources like landscapes and old roads it is hard to define what makes them beloved and what ought to be preserved without saying “preserve everything,” which is generally not feasible. | No | x | x | x | Some Indian Nations have a very different notion of “significance” than archaeologists, and a much more expansive view of how big the property should be. Also, some just want the project stopped and so refuse to agree on mitigation measures. | No | X | |||||||||||
| Architectural Historian | No | N/A | N/A | No | x | x | x | No | X | |||||||||||||
| Senior Archaeologist/Project Manager | x | I have worked on an archaeological project where the setting itself was significant but, through testing and data recovery, the archaeological resources were more-or-less fully collected. So, what is left to be a Historic Property? What should be avoided? | No | x | x | x | Maybe | X | ||||||||||||||
| archaeological Principal investigator | No | culverts | identifying and evaluating culvert replace during repaving projects. | No | x | x | x | Typically, the disagreement is based on resource significance. | Yes | X | ||||||||||||
| Project Archaeologist/Principal Investigator | No | N/A | N/A | No | x | x | x | No | X |
| 2-2. What is your role? | 3-4. Have you experienced challenges in making or reviewing no effect and no adverse effect findings for certain property types? | 3-4a. If yes, please indicate the type of resource(s), if any, that presented the challenges identified above (select all that apply): | Historic bridges | Archaeological sites | Linear historic properties | Historic/Cultural properties | Other | 3.4b. Please explain challenges experienced with the property types identified above. | 3-5. Do you have experience in applying no effect and no adverse effect findings to TCPs? | Yes | No | 3-5a. Do you have experience in applying no effect and no adverse effect findings to archaeologic al sites when consulting with tribes? | Yes | No | 3-6. Have you had experience with disagreement s or disputes on no effect and no adverse effect findings? | Yes | No | 3-6a. If “Yes” what was the substantive nature of any disagreement? | 3-7. Do you have experience in applying and interpreting the Secretary of the Interior’s Standards for the Treatment of Historic Properties in the context of findings of no adverse effect (such as for findings of no adverse effect with conditions)? | Yes | No | Maybe |
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| Principal Archaeologist | Yes (see question 3-4a below) | x | One SHPO reviewer wanted an evaluation of a railroad grade that ran from Seattle to Portland when the client was only adding parking garages and making a few platform modifications to two rail stops. He finally changed his mind but that only happened because FTA had a chat with him. | Yes | X | x | x | No | X | |||||||||||||
| Principal, Principal Investigator, Cultural Lead, Owner | Yes (see question 3-4a below) | Tribal Landscapes, TCPs, Ethnographic resources. | x | x | x | x | People unqualified to assess these resources-- is an archaeologist qualified to evaluate a historic building? Is an architectural historian qualified to evaluate a Tribal resource? Etc. We need more qualified reviewers who can understand the various types of resources. | Yes | x | x | Perhaps, but it was more than 40 years ago, and the details escape me. | x | I seem to recall that the Tribe said there was value to a historic school they attended, and the archaeologist said there was no archaeology present, and the architectural historian said the schoolhouse had no criterion c values, and so the school was demolished. The tribal medicine garden and Indian football field were still observable, and the Tribes said the place was important to them because it was a reminder that they did not have to lose their language, their families, their heritage by forced attendance at an Indian boarding school, but rather could stay in their hometown. The tribe argued that the removal of the school and project development were an adverse effect, while the archaeologist and historian argued there was no effect. | Yes | x |
SEE RESPONSES TO QUESTIONS ABOVE ON THE FOLLOWING PAGES
| 2-2. What is your role? | 3-8. What successes have you experienced in working with CPs such as national preservation organizations and state and local preservation organizations (e.g. state and local historical societies and commissions) for projects with no effect and no adverse effect findings? | 3-9. What challenges have you experienced in working with CPs such as national preservation organizations and state and local preservation organizations (e.g. state and local historical societies and commissions) for projects with no effect and no adverse effect findings? | 3-10. What successes have you experienced in documenting and communicating no effect and no adverse effect findings to the public? | 3-11. What challenges have you experienced in documenting and communicating no effect and no adverse effect findings to the public? | 3-12. In your experience, what are some of the best approaches for establishing and maintaining positive relationships among the transportation agencies, SHPOs and CPs in the context of the effects determination process? | 3-13. Do you have specific projects or case studies that you can share with us that exemplify successful and challenging determinations of no effect and no adverse effect, including those that address indirect and cumulative effects? | 4-2. What have you found to be the best methods used to engage with tribes/NHOs? |
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| Architectural Historian | By working with a local historical society, we were able to identify an unmarked enslaved cemetery early in project planning and shift the road widening south to avoid effects on the cemetery. | Often SHPOs are the only CPs to substantively participate in the process. When other organizations do participate, they often have misconceptions about the 106 process and its limitations. More training or resources we could point organizations to for an easy understanding of the process and their role in it would be helpful! | N/A - I do not have experience communicating effects findings to the public. | N/A - I do not have experience communicating effects findings to the public. | Producing quality, in-dept reports show a technical competence and establishes a mutual respect in the process. | Possibly - Georgia DOT has a working group of consultants writing guidance on indirect and cumulative effects. We’d love to chat about what we’ve been working on and what you find in this survey. | N/A |
| Preservation Planner/106 manager | National Trust has been invaluable in several local consultations, but none of them have been transportation projects. | There is a severe Midwestern regional aversion to advocacy. Almost every invite to consult is ignored unless it’s a tribe or an explicitly preservation organization. Railroad history clubs refuse to respond to rail bridge projects, etc. | I have occasionally intrigued a reporter, but federal administrative law breaks most people’s brains. I don’t know how to tell the story of a negotiation. Presentations to the local historic preservation commission can be helpful, but generally do not draw public comment | Process is too complicated to explain to reporters and the public | Open communication lines and transparency. | no | telephone |
| Historic Structures Program Manager | Them taking the time to understand the project and them working with the consultant. | Local preservation groups not understanding that you can’t save everything. Also with them not understanding where the money to preserve is coming from. | Transit projects | Transit projects | Open communication is a must. Being prepared with your data/findings is a must. Always being impartial. | no | none |
| Archaeologist, Historian, Project Manager | I have gotten great input from CPs on these matters, because local preservationists sometimes have a keen grasp of what can be preserved and what just needs to be let go of. | Some groups just want to use the process to block the project entirely and don’t have any interest in trade-offs or mitigations. | I suppose there is success in that projects go forward, but I have never had anyone tell me, “you’re right, this isn’t important.” | Many people want to hear that the whole project has been stopped. | Face-to-face meetings, site tours | N/A | Reach out early and identify those nations with a real interest and find out what their concerns are and what they really want. |
| Architectural Historian | N/A | N/A | N/A | N/A | Early communication about potential eligible properties and districts and the impact the project would have on them. | Navigation Blvd Underpass TxDOT CSJ 0921-71-001. | N/A |
| Senior Archaeologist/Project Manager | We have had success with local historical societies. They seem to understand the broader context of these kinds of consultations and typically try to be collaborative partners in the solution, rather than pointing out problems. | The only preservation groups I’ve struggled in consulting with for these kinds of things are cemetery preservation societies. They can be almost militantly myopic in their interpretation of a project and its effects. | I’ve found that going in person and presenting that information through a talk or something like that does very well. | I have had challenges when dealing with resources associated with cemeteries. People often hold these places very dearly and yet different people will have very different opinions on what is appropriate and what is “significant” about them. It’s tough to thread the needle in documenting no adverse effect. | Being honest and transparent. And being there to help them when they need it. Essentially being longer-term partners; not just on a single project. | Nothing comes to mind at the moment. | N/A |
| 2-2. What is your role? | 3-8. What successes have you experienced in working with CPs such as national preservation organizations and state and local preservation organizations (e.g. state and local historical societies and commissions) for projects with no effect and no adverse effect findings? | 3-9. What challenges have you experienced in working with CPs such as national preservation organizations and state and local preservation organizations (e.g. state and local historical societies and commissions) for projects with no effect and no adverse effect findings? | 3-10. What successes have you experienced in documenting and communicating no effect and no adverse effect findings to the public? | 3-11. What challenges have you experienced in documenting and communicating no effect and no adverse effect findings to the public? | 3-12. In your experience, what are some of the best approaches for establishing and maintaining positive relationships among the transportation agencies, SHPOs and CPs in the context of the effects determination process? | 3-13. Do you have specific projects or case studies that you can share with us that exemplify successful and challenging determinations of no effect and no adverse effect, including those that address indirect and cumulative effects? | 4-2. What have you found to be the best methods used to engage with tribes/NHOs? |
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| archaeological Principal investigator | none | none | none | none | communicate early, build trust by following through with commitments or other promised actions. | no | We can’t, engagement must be from the federal agency. |
| Project Archaeologist/Principal Investigator | N/A | N/A | N/A | N/A | Early and regular consultation | No | N/A |
| Principal Archaeologist | N/A | N/A | N/A | N/A | Understanding everyone’s agenda for each project is helpful and so is staying out of the politics between agencies, tribes, and the SHPO. Being a neutral party and advocating for the resource helps in some contexts too. | No | Being transparent about the project, remaining neutral, coaching the client if they have no training, listening, asking questions, and being respectful. |
| Principal, Principal Investigator, Cultural Lead, Owner | Assisted in the establishment of the first CLG for a county in our state, and served on the Commission. Worked with them to develop guidelines and conditions on review of all cultural resources before a project took place. In our county 95% of all projects including sewers, septic, building permits are reviewed for cultural resources before the permit is issues. | None | Hundreds of reports over the years with summary information for the public. | Inability to share confidential info. | Sit down or virtual meetings with real communication | No, this survey is getting too long with too much repetition | Begin consultation early and forthrightly, prior to issuing contracts to archaeologists. Reach out to Tribal governments, conduct research on cultural offices within tribes, contact our state office regarding tribes, work with ethnographers who know the tribes in a region, etc. |