APPENDIX D: LIST OF INTERVIEWEES AND INTERVIEW QUESTIONNAIRES

List of Interviewees

State DOT and SHPO Interviews (ordered alphabetically)

• Arizona SHPO
• Colorado DOT
• Georgia SHPO
• Idaho DOT
• Idaho SHPO
• Iowa DOT
• Maryland DOT and SHPO
• New Hampshire DOT and SHPO
• Oklahoma DOT
• Oregon DOT
• Pennsylvania DOT and SHPO
• Rhode Island DOT and SHPO
• Texas DOT
• Virginia DOT
• Washington DOT
• Wisconsin DOT and SHPO

Federal Agencies and Organizations

• ACHP
• FHWA
• FRA
• NPS
• NATHPO

Consultants

• AmaTerra Environmental Inc.

Research Note on Interviews: Each interview was treated as a conversation with the interviewing agency, organization, or consultant. Although a pre-determined set of questions was sent to each interviewee prior to the interview, not all questions were ultimately asked (unanswered questions were omitted from interview transcripts presented below). Interviewers were instructed to ask follow-up questions and delve into various topics as appropriate given the experiences of the interviewee. These unscripted questions are included in each interview transcript below.

NCHRP Project 25-65

PREPARING SUCCESSFUL NO EFFECT AND NO ADVERSE EFFECT
SECTION 106 DETERMINATIONS: A HANDBOOK FOR
TRANSPORTATION CULTURAL RESOURCE PRACTITIONERS

INTERVIEW QUESTIONNAIRE FOR ADVISORY COUNCIL ON
HISTORIC PRESERVATION

Advisory Council on Historic Preservation (ACHP)

Date of Interview: June 6, 2023

Text in blue indicates interview responses.

Text in green indicates interviewer’s follow-up or off-script questions.

• Have SHPOs or Tribes or other CPs discussed with you or raised issues about the challenges they have encountered for any of the following in relation to making findings of No Effect and No Adverse Effect under the Section 106 process, in the context of FHWA and/or State Departments of Transportation (state DOTs) projects?
  • Effects on archaeological sites
  • Effects on properties of religious and cultural significance
  • Effects on historic bridges
  • Effects on HDs
  • Effects on linear historic resources such as historic roads or irrigation systems

We often don’t get notified until there is a finding of effect. So, I don’t really hear until we are getting a PA or something for a project.

Property owners without Section 106 expertise, don’t understand what an effect is.

Public inquiries as to why they don’t understand something.

If yes, what were the challenges, and how did these CPs address these challenges? If they were not able to address the challenges why was this the case?

• Have these CPs discussed with you or raised issues about the challenges they have encountered with specific types of FHWA and/or state DOT projects, such as those involving bridges; streetscape, sidewalk or ADA projects; or other types of transportation projects? If yes, what were the challenges, and how did these CPs address these challenges? If they were not able to address the challenges why was this the case?

See above.

• Have FHWA and/or state DOTs discussed with you or raised issues about the challenges they have encountered with making findings of No Effect and No Adverse Effect? If yes, what were the challenges, and how did they address these challenges? If they were not able to address the challenges why was this the case?

See above.

• Over the past five years, has the ACHP been involved in addressing disagreements or disputes between CPs and FHWA and/or state DOTS on No Effect and No Adverse Effect findings? If yes:
  • What was the disagreement or dispute about?
    • Seven disputes over the last five years.
      • One is a historic bridge where it was a wrought iron bridge and FHWA couldn’t procure iron to replace in-kind.
        • Found steel to look and operate the same.
        • Question of threshold – SHPO said replacing too much fabric, but it did follow SOI standards.
      • Road widening – Route 66 (hasn’t actually come up yet)
      • A couple projects where the effect dispute is brought to us, but really they missed something at the identification and evaluation step – so no agreement on significance and CDFs. – so, by the time you get to effect dispute there isn’t agreement on setting or something.
    • FHWA FPO probably sees more [disputes] and tries to handle them informally before going to ACHP.
    • Old nominations are problematic.

Something I find interesting – seen in consultation meetings where SHPOs want Adverse Effect for the agreement document because they don’t trust construction commitments will be followed through on. But SHPO wants to know where memorialized and who make sure it happens.

• Conditional Adverse Effect following regulation – how do you document that and a commitment that it is done and document that it was done?
  • Specific contractual notes and specifications that you need to monitor.
  • You don’t have to do an MOA because you have an Adverse Effect – DOT needs to show they are going to follow through with it.
  • It would be really nice if FHWA did not have to do an individual 4(f) every time they have an Adverse Effect.
    • Some can push the line to get an No Adverse Effect to avoid 4(f)
    • For parks plus part of 4(f) to get a de minimis as opposed to full evaluation you consider mitigation as part of you package but you can’t do that for an historic property.
• We have heard from some states that they were told that they can’t do conditional No Adverse Effect.
  • FHWA FPO would like to say there is no finding of No Adverse Effect with conditions – you get there with conditions.

NCHRP Project 25-65

PREPARING SUCCESSFUL NO EFFECT AND NO ADVERSE EFFECT
SECTION 106 DETERMINATIONS: A HANDBOOK FOR
TRANSPORTATION CULTURAL RESOURCE PRACTITIONERS

INTERVIEW QUESTIONNAIRE

PRIVATE CONSULTANT

Date of Interview: June 15, 2023

Text in red indicates previous responses from the online survey.

Text in blue indicates interview responses.

Text in green indicates interviewer’s follow-up or off-script questions.

PRACTICES, APPROACHES, AND EXPERIENCES

• In your experience, why are the following elements important in making a well-reasoned and defensible recommendations of No Effect and No Adverse Effect?
  • Well-defined historic property boundaries
  • Explicit identification of historic property significance and CDFs
  • Explicit identification of associated aspects of integrity
  • Clear and comprehensive list of project activities and their locations
  • Project plans
  • Other: Local and/or descendant communities’ interpretations of significance and the property’s role to them.

Interviewer: Per your response, you’ve suggested local communities’ interpretations of significance are an important facet of determining effects, so you’re speaking to public input here…

Interviewee 2: Yes, [we’re speaking to public input here] …

Interviewee 1: … also the hardest thing to find is criteria A with events and B with people, and locals help us really understand local level significance. My favorite story is [about] … a modern gas station and parking lot, but the one corner with the parking lot was an annual meeting place for indigenous people.

So, I as a stranger coming in would never have known that if locals hadn’t informed me of that site’s significance.

Interviewee 2: Yes, it’s very important to take the public’s perception of what has importance/significance. We’ve been told that the SHPOs rely on our (the consultants’) opinions, so we’re the eyes and ears on the ground, connecting to communities and gauging how they’re being affected. But we only know what we know, and we might only see a dilapidated shack or something that lacks integrity, but to the local community it may be significant in a way we can’t see or know.

Interviewer: For your state’s DOT projects, how much do they lean on their consultants’ involvement for the consultation process under Section 106?

Interviewee 2: We were having a conversation about that topic just the other day…. The public involvement is usually tied into the NEPA side of things, and the spirit of Section 106 is to preserve resources that are important to the communities that are affected by proposed projects, and we’re supposed to be seeking public comment, but in my experience in a purely Section 106 process outside of NEPA, we rarely do the kind of broader public engagement that you might see in the NEPA process. It’s more just sort of knocking on doors, asking questions, going to historic societies for comment, but not asking broader community conversations. In general, public involvement is on the NEPA side of things, separately from Section 106.

Interviewee 1: Architecture historians have to list who the county commissioner is and the CLG liaison [if the project is in a CLG], and that’s the very first project coordination step; then you would contact those entities, and when I got to this company, they had a two-page letter with a map as a notification template, and I tried to streamline the notification process with emails or a phone call. I have contacted them before when I do a site visit of a property and I see an issue, and I ask them about it and further contacts.

• What challenges, if any, have you experienced in recommending direct vs. indirect and cumulative effects?
  • What were the challenges?
    • Lack of applicable reference materials to assist in the determination review.
    • Not having well-defined project boundaries
    • Struggle with finding that “enough” point. Struggling to determine that I’ve really considered these future unknowns well enough.
  • How were you able to address the challenges? If you were not able to address the challenges why was this the case?

Interviewee 2: That last one – trying to figure out what is the “enough” point – is a big issue for me. Direct effects in archaeology are straightforward – the physical impacts from construction – so that part is easy, pretty cut and dry. But defining indirect and cumulative are hard to define, particularly when it comes to archaeological resources; there are a hundred different future scenarios you could chase out.

Like, if they expand this highway, there will be these physical effects; but it may also mean an increase in traffic, and that could spur new development, which could mean more utilities could be installed. Where is the line where you stoop? The prognostications are endless, so where is the due diligent stop to this exercise? Especially for archaeology, where rights of entry are concerned, you can’t really assess what is going on outside your specific project footprint where you have access, and you don’t know what sorts of sites might be just beyond where you have access to…

Interviewee 1: One highway goes north through the hill country between two counties, and it is considered by some one of the gateways into the state’s hill country. And the current highway had cut through rock, and so you would have between a 3-15’ high wall that you see. Work was already done on the lower section of the roadway, near the city, where the rock was replaced with a concrete wall, and that’s an immediate effect to the viewshed, and then if you keep continuing north, you see houses in the rolling hills – so what is the viewshed? Is it my immediate experience? What are the limits to a viewshed? When you look at things, like a beautiful mountain viewshed, that’s identifiable, but when you’re looking at a highway project through a suburban landscape, what is the viewshed and its significance? I found it hard to determine how far out to go out visually, and then using complex calculations don’t help. I had the same issue with a wind farm; ok, this is a historic farm, and the projected wind far is 1000 feet out, but how tall is it? It’s hard to visually conceive effect/understand what something will look like once its realized.

Interviewer: Your concerns are reflected in other calls and input we’ve had to date.

Interviewee 1: I will tell you about something that helped me with the highway report and another report. So, transportation plans for cities and counties, long-range planning, tell you what the landscape will look like in the near future; and developers know that information. So, I called a city department planner and asked about approved projects to develop the corridor (zoning and subdivision plans), and the planner gave me the plans. So, I could say, this farm and that ranch, those will be developed – their master plans have been approved – they are just waiting for the highway widening. So having dates of acquisition showed this development and the affects were already underway. In another case, there was a circulation separation (railroad and pedestrian) plan and a plan to get rid of all of the railroad underpasses in the future. So having that information helped me get to a determination, and if I hadn’t worked in local government as a planner, I wouldn’t know or think to make these connections because no one ever taught me that as a historian.

• What challenges have you experienced in recommending No Effect and No Adverse Effect findings for certain types of transportation projects (e.g., bridge replacements, rural capacity projects)?
  • What were the challenges?
    • Defining the setting of a project area and identifying effects such as noise and vibration.
    • Not having well-defined project boundaries
    • Considering the implications of effects from future development that would come from increased roadway capacity.
  • How were you able to address the challenges? If you were not able to address the challenges why was this the case?
  • Have some types of projects been more challenging than others? If so, why?
    • 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.
    • Transportation alignments changing repeatedly during evaluation.

Interviewer: Do you have specific examples of challenges you’ve experienced reaching effects determinations?

Interviewee 1: One Highway is like 16 lanes – it’s ridiculous! It’s solid concrete the whole way, and I was able to take pictures of the as-built section to show what the proposed section would look like. But you don’t always have those physical examples to fall back on. So, I think the hardest challenge is to show affects; people think curb and gutter is no big deal, but if you see a rural road that does not have curb and gutter and then you add curb and gutter, it changes it, it changes the look of it.

Interviewee 2: I don’t have specific examples.

• What challenges have you experienced in recommending No Effect and No Adverse Effect findings for certain categories of historic properties, such as historic bridges, traditional cultural properties, and linear historic properties?
  • Archaeological sites
  • Linear historic properties
  • Historic/cultural properties
  • What were the challenges?
    • 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?
  • How were you able to address the challenges? If you were not able to address the challenges why was this the case?

Interviewee 2: For an example of a linear property that comes to mind, and a project that affected it, there’s a water pipeline project that runs through five counties, pulling water from reservoirs and bringing it into a metropolitan area; and in many places the pipeline corridor crosses several sections, many components, of an abandoned railroad corridor used as electric commuter rail in the late 19^th and early 20^th c., and the pipeline project was going to tear down whole sections of the corridor. And that was an effect, but I argued that the effect doesn’t change the character of the resources as a whole, it’s not affecting the significance of the corridor overall, and it’s a cut in a line that’s been cut several times before. Mostly we take it piecemeal, looking at one crossing on an entire line.

Interviewee 1: Some of the discussions we’ve had with historic properties’ and state DOT historians are about setting. So is the building’s setting about its relationship to its own fence line and the roadway, or is setting the building’s larger environment, like are you in a corridor where houses faced the street and now its commercial buildings with surface parking in front and the front lawn is lost? Again, how far is that setting limit or scale? I try to think of subdivisions as a collection of houses, and not as individual resources. I think we spend a lot of time on individual resources that aren’t contributory, and we don’t get to spend a lot of time on actual history because we’re recording every single building constructed before 1985 that’s unlikely ever to be historic. Like, for chain restaurants, I wish we knew how often they change their signage and rehab their buildings; like, with hotels, we have Jacquelyn Scully’s work, and we know that every ten years, because of taxes, there is a rehab cycle happening – but is it the same in restaurants? If we had data like this on modern typologies and we could all agree to it, we could just move on!

Interviewer: Have you all run into instances of SHPO trying to push for avoidance even after full data recovery on an archaeological site?

Interviewee 2: No, not that I am aware of. I saw that answer, and I assume I wrote that, and I’m trying to remember what project that was. I mean, data recovery is the whole point of the mitigation for the effect. I’ll have to think about which project prompted me to make that answer… Oh, I remembered, but I can’t provide details (it’s ongoing). It’s a place where a historical event took place, and there are some remnants of it that are there, however all the data has been recovered, and the public’s access isn’t changing, but there’s some concern over mitigating other effects, but there’s nothing there left to mitigate – it’s gone. But I can’t provide more detail on that project.

Interviewee 1: It’s like this dam that is part of a larger system on an eligible historic ranch, and one group wants to tear the dam down for the fish to swim upstream. So, the dam is owned by Public Works, but the ranch is owned by a different government (city or county) entity, and we’re just trying to reach consensus over whether it was historic or not – we didn’t get into assessing effect. The argument is, the dam as one piece that isn’t that important or doesn’t make sense on its own, but as a part of a system it is important; but then if the dam goes away and it’s a free-flowing river again, have you lost the integrity of the whole system? So, it’s an interesting conversation between the parties.

NCHRP Project 25-65

PREPARING SUCCESSFUL NO EFFECT AND NO ADVERSE EFFECT
SECTION 106 DETERMINATIONS: A HANDBOOK FOR
TRANSPORTATION CULTURAL RESOURCE PRACTITIONERS

STATE HISTORIC PRESERVATION OFFICE
INTERVIEW QUESTIONNAIRE

SHPO

Date of Interview: June 8, 2023

Text in blue indicates interview responses.

Text in green indicates interviewer’s follow-up or off-script questions.

RESOURCES FOR MAKING DETERMINATIONS OF NO EFFECT AND NO ADVERSE EFFECT

The following questions ask about the resources commonly used by your agency when conducting an assessment of effects.

• What specific resources, procedures, or policies does your agency have that assist in making findings of No Effect or No Adverse Effect? Can you share these with us?

No, we just follow Section 106.

• Do you have a statewide delegation PA that includes stipulations on making findings of No Effect (in the context of No Historic Properties Affected findings) and No Adverse Effect?
  • If yes, do these stipulations use the same wording (or approximately the same wording) that is in the Section 106 regulations (i.e., 36 CFR 800.4(d)(1) for No Historic Properties Affected and §800.5(b) for No Adverse Effect) or do they simply refer to these two sections of the regulations?

Yes, under stipulation 8(f) under the Section 106 process. Additional codification of different kinds of undertakings that can be exempted.

• Or does your PA provide for an alternative approach to making these two effects findings that is different than the standard approach in the regulations (e.g., making a finding of No Historic Properties Affected without SHPO consultation)?
  • PA allows the DOT to make findings of NHPA without Consulting SHPO?

Screened and exempted projects – if not under this list the DOT still consults with SHPO.

Screening memos are sent to SHPO on certain projects and then comes again in a batch report.

• If you have a statewide delegation PA that includes stipulations on making findings of No Historic Properties Affected and No Adverse Effect, is the implementation of these stipulations working well? If they are not working well, what changes would you like to make to these stipulations, if you could make change? If they are working well, would you still want to modify the stipulations if you could in order to improve their implementation?

Interviewee 2: On the whole it does work well – screening and exemptions work well for findings of effect. Have more issues with defining the APE – PA explanation of APE is a bit generic.

Interviewee 1: Tribes are not signed on to this PA, so we don’t know if tribes have concerned on the PA.

PRACTICES, APPROACHES, AND EXPERIENCES

• In your experience, why are the following elements important in making a well-reasoned and defensible finding of No Effect and No Adverse Effect?
  • Well-defined historic property boundaries
  • Explicit identification of historic property significance and CDFs
  • Explicit identification of associated aspects of integrity
  • Clear and comprehensive list of project activities and their locations o Project plans
  • Other:

Having adequate consultation with potentially affected communities (CLGs and others) and tribes – that really is part of the identification process.

• This could be happening earlier, prior to consultation with SHPO.
• Important to make sure the agencies have adequately identified CPs.
• SHPO wants to help identify CPs and also hear their comments.

• As defined by ACHP in their 2019 memorandum, indirect effects to a historic property are “…those caused by the undertaking that are later in time or farther removed in distance but are still reasonably foreseeable.”
  • Have you dealt with indirect effects in determinations of No Effect or No Adverse Effect following the ACHP’s 2019 memorandum?
  • If so, how?

Yes, we are asking people to use this guidance. We spoke with ACHP in 2020 on its use – they apply it to Section 106, so we apply it to Section 106.

Visual is most important – so, cognizant of how APE is defined.

Interviewer: Do agencies and consultants, and CPs get it?

• I think it’s been slow on the uptake.
• SHPO has been pushing the definition from 2019.
• Hard because it translates to just binning your effects in a different column.
• It does influence how we are defining our APEs.
• Terminology – direct is now the “Physical” construction area and then these are all of the other direct effects.
• We have made agencies change their language in reports.
• The state DOT most often just defines a general APE and don’t really take this into account.

Interviewee 1: mostly dealt with educating Bureau of Land Management (BLM) on this.

• Have you dealt with cumulative effects in your review of No Effect or No Adverse Effect determinations?
  • If so, how?

Interviewee 2: I think it’s been more associated with projects off of the PA and probably have agreements from before I was with SHPO.

Interviewee 1: we will see a lot of solar and wind fields.

• What challenges, if any, have you experienced in reviewing direct vs. indirect and cumulative effects?
  • What were the challenges?

Interviewee 2: Periodic challenges – minor disagreements over definitions of APE or effects. I think we have a strong relationship with FHWA and the state DOT. Informal communication and consultation – no qualms about emailing ahead of time or during. Challenges with defining an APE that doesn’t really take into account for all types of effects - Usually larger corridor projects where long-term cumulative effect considerations may come up.

• How were you able to address the challenges? If you were not able to address the challenges why was this the case?

Able to have causal conversation, debate if necessary. Its’ not very usual that we have to send them letters that they should do something different. Try to work ahead of time to make decision together.

• What challenges have you experienced in reviewing No Effect and No Adverse Effect findings for certain types of transportation projects (e.g., bridge replacements, rural capacity projects)?
  • What were the challenges?

Bridge replacement recently that we disagreed with DOT affect finding. DOT started with a No Adverse Effect, we came back and aid no we think this is an Adverse Effect.

• Their justification was the bridge would remain in place and the new bridge would be adjacent.
• We felt abandoning in place to decay without ownership plan posed an adverse effect.
• DOT reconsulted and said okay, but now the scope has changed, and they are demolishing the bridge (US 60). So definitely an Adverse Effect.

Interviewee 1: biggest concern seems to be – in a previously disturbed site and we think its No Adverse Effect but turns out research was not exactly in that place.

Interviewee 2: not everything that the state DOT does is federally funded. So then under state act to consult with SHPO.

• A lot of other agencies that the state DOT is facilitating 106 on other federal agency behalf.
• Or even if its federal and the federal agencies hasn’t signed on to the agreement.

• What challenges have you experienced in reviewing No Effect and No Adverse Effect findings for certain categories of historic properties, such as historic bridges, traditional cultural properties, and linear historic properties?
  • What were the challenges?
  • How were you able to address the challenges? If you were not able to address the challenges why was this the case?

Interviewer: Route 66? Is adding a little shoulder an Adverse Effect? What is the threshold?

Mostly within rural communities – if it wasn’t changing from 2-4 lane it wasn’t an issue.

Generally, we don’t have many problems.

Segment of a road in a project with a bunch of archaeological sites – crown jewel of the historic state highway system – eligible A and D- HSHS segments:

• Needs to meet SOI standards for work.

• Have you had experience reviewing findings of No Effect or No Adverse Effect to archaeological sites? If you do not have this experience, what is the reason for not having made these types of findings in the context of archaeological sites? If you have had this experience, did you experience any challenges in reviewing these findings?
  • What were the challenges?

Usually avoidance. Minimization is rarely used.

DOT came to us with a No Adverse Effect, yet they weren’t going to avoid site for pavement- pres. project. Well, what about staging and stock piling and turn arounds? – so asked them to reevaluate APE to get to a No Adverse Effect.

Treat unevaluated sites as eligible, but cautious when there is ground disturbance.

• What experience have you had with disagreements or disputes on No Effect and No Adverse Effect findings?
  • What was the disagreement or dispute about?

Interviewee 2: Sure, but usually when we go back to DOT, we talk it out and we resolve it between us.

• What was the solution to the disagreement or dispute?
• Was the ACHP contacted to review the disagreement or dispute? If yes, what was the outcome of the ACHP’s review?

None I can think of that have gone to ACHP.

• Have you put in place any measures to avoid future disagreements or disputes on these effect assessments? If so, what are these measures?

• What is your experience with reviewing assessments of No Adverse Effect with conditions, following 36 CFR 800.5(b)?
  • Can you please describe by providing a project example?
  • If you do not concur with findings of No Adverse Effect with conditions, what is the reason for not making such a finding?

No, we avoid or minimize and mitigate.

Standard approach in PA so don’t need to do conditions. Is it an adverse effect or not from the beginning.

Some standard avoidance measures for specific types of properties that could be interpreted as conditions.

Conditional No Adverse Effect okay if done upfront at the beginning – then a possibility.

• Considering some of the challenges of working with private consultants, community groups, and other entities that provide resource identification and effects documentation to your agency, what measures would you suggest for addressing those challenges or what measures have worked or not worked in the past?

DOT has a couple of on-call contractors for cultural services – one of which has been an on-call for a very long time and are very knowledgeable.

• No issues with on-calls; one-off consultants can sometimes be a bit more challenging.
• Trying to help raise awareness for state procedures.
• Problematic to get data sometimes.
• Interviewee 1– One issue is old survey data.
• Interviewee 2: have been requests from Tribes to reevaluate previously determined not eligible sites.
• Need to consider some more survey or getting more info if a site has not been looked at in the last 5-10 years.

• What is your experience with consulting with CPs in making findings of No Effect and No Adverse Effect?
  • What specific successes have you had?
  • What specific challenges have you had?
  • What measures would you suggest for addressing those challenges or what measures have worked or not worked in the past?
  • Can you provide project examples that highlight a success or challenge?

We have been educating CLGs and local municipalities. The state museum and SHPO have done various trainings. CLG program training should include archaeology.

Opened [State] Site information for planning purposes.

• Site location and survey information.
• Have to sign the agreement.
• Working with advisory group to develop training.

• What successes have you experienced in documenting and communicating No Effect and No Adverse Effect findings to the public?
  • Can you please describe some specific examples of successes and describe why they were successful?

Educating public through preservation meetings and history museum.

• What challenges have you experienced in documenting and communicating No Effect and No Adverse Effect findings to the public?
  • Can you please describe some specific examples of these challenges and describe why they were a challenge?

Project where not all parties were identified. Had to do with an irrigation canal. Project ended up not happening. DOT realized they didn’t have everybody identified and then realized they would not have approval for access to a portion of the land.

TRIBAL CONSULTATION AND ENGAGEMENT

Sometimes get pulled into tribal consultation process. If No THPO then we are legally required to get involved. We need to rely on input from tribes or affected community on what constitutes a TCP and what kind of impact could occur.

Government to government relationship we can’t intervene with the agencies. But we ask agencies communicate with us and ask the tribes to also share with us. Certainly, want to know if a tribe disagreed with an effect to a TCP contrary to SHPO concurrence.

14-day review for DOT – tribes were concerned that Section 106 was then over, but SHPO says it’s not until they are informed of any tribal concerns.

• Have you had experience dealing with findings of No Effect or No Adverse Effect to Traditional Cultural Properties?
  • If yes, can you please discuss how you made these findings.

No Adverse Effect with Central Federal Lands project in considered TCP. Worked with ACHP on language on Tribal engagement.

• If not, why is this the case?

For the most part we wouldn’t know unless it’s an adverse effect.

• Have you had experiences with disagreements or disputes with Tribes on No Effect or No Adverse Effect findings?

We defer to the tribes. We recognize for things like TCP, they are being asked to provide information that they don’t want to give. We try and let the agency keep responsibility. WE make it clear there is a TCP, but it’s the agencies problem to define it.

CASE STUDIES

• Can you provide a case study which showcases a successful project with these

• two findings, and an unsuccessful project, and send these to us?
  • South Mountain project website – there are pieces of No Adverse Effect on some built environment.
  • Most No Adverse Effect are batch consultation.

Interviewee Notes Following Interview:

Regarding Tribes: when there is a project off tribal land, the agency (state DOT) acts as the federal agency and consults with both the tribes that may be linked to area and SHPO. SHPO has 14 days to review under PA. So, SHPO’s concern is that the tribes may take longer to review a project than 14 days, so when SHPO provides a No Adverse Effect finding they include language (developed with ACHP) that gives them the option, if more info is provided by the tribes on the effects, to alter their finding.

Because regulations say the federal agency has to consult with Tribes and SHPO, when off tribal land that puts SHPO in a hard place.

NCHRP Project 25-65

PREPARING SUCCESSFUL NO EFFECT AND NO ADVERSE EFFECT
SECTION 106 DETERMINATIONS: A HANDBOOK FOR
TRANSPORTATION CULTURAL RESOURCE PRACTITIONERS

INTERVIEW QUESTIONS

STATE DOT

Date of Interview: June 5, 2023

Present:

Text in red indicates previous, consolidated responses to the online survey.

Text in blue indicates interview responses.

Text in green indicates interviewer’s follow-up or off-script questions.

RESOURCES

The following questions ask about the resources commonly used by your agency when conducting an assessment of effects.

• What specific resources, procedures, or policies does your agency have that assist in making findings of No Effect or No Adverse Effect? Can you share these with us?
  • Defining a project’s APE
    • PA has guidance on how we define APE’s, how to document linear resources, etc…
    • Looking at all the resources and obviously what we know about the project and where the effects might be.
  • Procedures for communicating these findings with SHPOS/THPOs/NHOs, other CPs and the public.
    • PA has a section about informal communication with SHPO.
    • Feel we need to make our argument, so if it’s on the fence I want to make the argument before sending to SHPO.
    • Better to just send them what we have and what we are thinking and wait for their response.
    • Have a policy if SHPO disagrees, we ask them to communication as early as possible within the 30-day review period so that we have time to respond within the 30-days.
    • When you are trying to figure out No Effect and No Adverse Effect you are really looking at identification that is important in determining that too. If it’s

• • • a temporary easement versus a ROW acquisition those are two different things that could affect a resource and it depends on where the easement or ROW is on the resource.

• Question for DOTs, SHPOs, and FHWA only: Do you have a statewide delegation PA that includes stipulations on making findings of No Effect (in the context of No Historic Properties Affected findings) and No Adverse Effect?
  • If yes, do these stipulations use the same wording (or approximately the same wording) that is in the Section 106 regulations (i.e., 36 CFR 800.4(d)(1) for No Historic Properties Affected and §800.5(b) for No Adverse Effect) or do they simply refer to these two sections of the regulations? Or does your PA provide for an alternative approach to making these two effects findings that is different than the standard approach in the regulations (e.g., making a finding of No Historic Properties Affected without SHPO consultation)?
    • Screened undertakings – list of activities that have No Adverse Effect to properties, in consultation with SHPO, so can clear without SHPO consultation.
      • Annual report
    • Effects set up closely to what is in the regulation.

• Question for DOTs, SHPOs, and FHWA only: If you have a statewide delegation PA that includes stipulations on making findings of No Historic Properties Affected and No Adverse Effect, is the implementation of these stipulations working well?
  • If they are not working well, what changes would you like to make to these stipulations, if you could make change? If they are working well, would you still want to modify the stipulations if you could to improve their implementation?
    • Works well, we are clearing like 60% with screened undertakings.
    • ADA structures – if in ROW it’s screened,
      • Stipulations for HDs
    • Program reconstructing ADA ramps outside of ROW not covered in Screened undertakings. So had to come up with alternative approaches.
    • New technologies like EV charging station are not in PA, but we’ve kind found places to put it in screened undertakings.
      • As new things come up they are not always explicitly stated in PA.

PRACTICES, APPROACHES, AND EXPERIENCES

• In your experience, why are the following elements important in making a well-reasoned and defensible finding of No Effect and No Adverse Effect?
  • Well-defined historic property boundaries
    • Larger ranching properties, identifying where the resources are on the property and where they are in proximity the project.
  • Explicit identification of historic property significance and CDFs
  • Explicit identification of associated aspects of integrity
    • Identifying changes over time to a property.
  • Clear and comprehensive list of project activities and their locations

• • Project plans
  • Other: Locations of and extent of direct effects such as easements, ROW acquisitions
    • A lot more emphasis on visual effects at DOT.
      • Visual impacts assessment process now in effect.
    • Visual maybe wasn’t part of what was identified in significance or at least very focused discussions of that.
    • Similar to noise.
    • Providing all of this information in detail to SHPO – we more often do not have to go back for consultation with SHPO.
      • Going the extra mile is helpful of each of these items above.
      • One reviewer at SHPO often disagrees with eligibility.
        • However, because we provided a detailed explanation of the activities, he can say there will be no adverse effect even if they disagree on eligibility.
    • I worked years ago at another DOT, not everybody does the level of survey forms that we do. We do survey forms for most properties in an APE unless really minor.
      • Survey forms very robust with CDFs, and integrity – can be expensive and time consuming, but partially why we get things back in 30 days.
    • Used other discipline visual impact analysis to do that type of analysis and including that in Section 106
      • Did a training on it.
      • Not overly formalized for 106 – takes a lot of initiative – hey this sounds like visual impact. Need to be proactive.
      • Typically working with a landscape architect. They would provide simulations to show how it could be impacting the historic property.
        • They will help relay that Visual Impacts Analysis (VIA) is in the scope of the environmental consultant to do enough for historic properties.
      • How do you tie it into a resource documented previously?
        • In the identification process need to talk about more specifically what makes it visually significant so that we can use those tools for visualization.
      • PA talks about when to reevaluate a resource – typically 5 years to revisit.

Interviewer: Are you getting the appropriate level of information on properties from consultants?

• We use SHPO survey forms – but sometimes we do the work in-house, and they are really good and we know what we are looking for and understand effect.
  • Consultants can be more challenging.
  • Trying to consultant guidance and training for consultants.
  • Completing a more formalized training to educate and get what we want – mostly for identification.
    • Getting funding would be e-learning.
  • Region 1 training (HQs is regions 2, 3, 5); metro area is so urbanized compared to

• • other areas of the state. Defining boundaries for urban versus rural is much different. So, region 1 training is overall applicable across the state, but there are some differences.

• As defined by ACHP, indirect effects to a historic property are “…those caused by the undertaking that are later in time or farther removed in distance but are still reasonably foreseeable” (ACHP 2019b).
  • How have you applied indirect effects to your determinations of No Effect or No Adverse Effect?
    • Now everything is an effect.
    • Now indirect is more what used to be considered cumulative.
    • Basically, you are speculating with cumulative.
    • Since this memo, noise and visual is more in the forefront now – much more upfront in analyzing it in our consultation with SHPO.
      • Now included in effects analysis as just effects.
• How have you applied cumulative effects to your determinations of No Effect or No Adverse Effect?
  • We stay away from cumulative – and let the SHPO bring it up.
• What challenges, if any, have you experienced in making or reviewing direct vs. indirect and cumulative effects?
  • Indirect effects to visual or setting aspects of a property can be a little challenging, particularly because character-defining visual and setting elements are not often addressed in older property documentation. However, my agency has experimented with a number of tools to help increase understanding of and accuracy in determining those kinds of effects which have been very helpful on projects. Determining noise, vibration, and other auditory and atmospheric indirect effects is also very challenging, partly because existing guidance on noise and air quality does not directly address historic properties, and again because of poor documentation of properties in the past such that it is unclear if something like a quiet environment is a character-defining aspect of a property. Cumulative effects are very challenging, because they can be nearly impossible to quantify, particularly if my agency is making changes to a setting or landscape that has already been altered by others (i.e. my agency is giving money to a local government for streetscape improvements, but that local government has already constructed a project or two to modernize elements of a historic streetscape). At what point is the work a cumulative adverse effect, and who gets left holding that bag? At what point is it death by a thousand cuts? How do you quantify whether moving heavy truck traffic off a historic main street will result in an economic loss and business closures, versus perhaps creating a safer, ultimately more walkable, attractive, and vibrant downtown because heavy traffic has been moved? Unless we know of actual upcoming future projects, it can be hard to imagine potential future scenarios and then determine with any degree of accuracy if those scenarios could have a cumulative adverse effect.
    • Tools referenced – thinking of project where the consultant does a lot of

• • • visual stuff had prepared visualizations to help understand how properties were going to be affected – TCP involved.
      • Simulations
      • Photos – seasonal difference in viewsheds
    • VIA not only does visual simulation, but for this overpass, they can analyze the topography and show where or if you could see a feature from any location.
      • Helpful for rural properties with maybe more of a visual setting issue.
• 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)?
  • The roads themselves – highways have all been evaluated a significant or non-significant – is widening them an Adverse Effect?
    • What makes the road significant, how is this project going to effect it and staying consistent?
  • How were you able to address the challenges? If you were not able to address the challenges why was this the case?
    • Helpful for all of the highways to have been evaluated.
    • For linear resources – for Region 1 – we review a lot of bridges and tings over canals and ditches and railroads, we really look at what the historically significant boundary is. We do section drawings sometimes, particularly if we know new bridge piers are coming down. Historic boundary might be smaller than the actual ROW.
      • Have been very specific on the historic boundary, which might even change in certain sections of certain segments of the linear resource.
      • Developed a linear checklist to do our linear survey forms – they are really time consuming, so we developed this checklist – established whether a linear resource is even significant or not and doing a whole form. If we can document on the checklist as not significance then we just append the list to the SHPO letter that establishes that its not significant and then not do a full form.
        • Doesn’t really address integrity – only establishing significance.
      • SHPO came out with new linear guidance largely written by archaeologists.
      • Managing consultants around linear resources is challenging.
      • Roads Multiple Property Documentation and context for ditches – not terribly helpful - broadly written so the chance that anything is significant.

Has SHPO generally accepted the checklist?

• Yeah! SHPO has agreed each time – used 4-5 times. Had less than one year.
• SHPO did not accept a new form, so the list was a compromise.
  • Have some types of projects been more challenging than others? If so, why?
    • Challenging projects involve indirect effect analysis – it’s always difficult to evaluate noise and visual – because as I noted previously, most previously documented resources don’t really address these elements under significance. In our next revision to our PA we plan to include guidance on how to evaluate noise and visual effects, so that should provide more consistency.

• • • • Drafted, but not complete. Trying to add to PA.
        • About using general data for noise and visual and figuring out how to apply it to section 106.
      • Noise it’s about, if there is a noise analysis we can use that data to understand…look at if there is a noticeable increase that a human can detect – can use that as a threshold.
      • Had a concern about expanding the highway and affected the noise – noise wall then to mitigate noise is visual effect.

• What experience have you had with disagreements or disputes on No Effect and No Adverse Effect findings?
  • We recently had a disagreement with a consulting party who owns a listed property in our APE. There are no direct effects, but he felt that changes to the highway and in speed limit were affecting the integrity of setting, feeling, and association of the property. SHPO concurred with us, and even though we felt we had implemented traffic calming measures that would address the consulting party’s concerns, we were still unable to come to agreement.
    • FHWA okay with DOT moving forward.
    • Engineers had already put in many mitigative measures to address the depot area – but this party wanted more signage with speed limits.
    • A little surprised that FHWA was okay with it.
    • We did tell the consulting party – we would check in on how the measures were working near his resource.
  • Did you contact the ACHP to review the disagreement or dispute? If you did, what was the outcome of the ACHP’s review?
    • No
  • In another example, we had looked at a 5-mile segment of a historic railroad and determined that although the entire railroad was significant this segment as a whole lacked integrity and was non-supporting, so we made a no adverse effect determination. The consulting party disagreed that the segment lacked integrity because there were some smaller areas where there were remnants of old retaining walls. In this example, the party couldn’t agree with our effect determination because they disagreed with our eligibility finding.

• • • Never really resolved this – agreed to preserve some of the retaining wall.
    • Giant piece of railroad – consultant did a comprehensive of entire segment – decided it lacked integrity even though the railroad is eligible.
    • Fundamental problem with CPs – difficult for people to understand how to evaluate a linear resource.
      • You can have sections that don’t support the significance.
    • Fortunate that SHPO agreed.
    • Linear segment of railroad was non-supporting, SHPO concurred, there was a historic truss bridge – evaluated as non-supporting segment.
      • Consulting Party (CP) came back and said they disagreed with the eligibility and thought bridge was important.
      • Could not get CP to understand.
      • Able to work it out outside of the Section 106 realm – talked to property owners and land owners to ensure it wouldn’t be affected.
      • A language barrier and knowledge barrier.
  • Did you contact the ACHP to review the disagreement or dispute? If you did, what was the outcome of the ACHP’s review?
    • No
• What is your experience with making or reviewing assessments of No Adverse Effect with conditions, following 36 CFR 800.5(b)?
  • Please describe the experience.
    • We try to avoid conditions.
      • Don’t want monitoring to be common.
      • If we put conditions, we may stop getting project information in detail.
    • Maybe have done with DB.
    • We often put (peak to plains trail on stone railroad grade) – required engineering analysis at start of project and then had to take pre-photos and an engineer monitoring.
      • Put in specs and if anything changed would have to go back to DOT cultural.
      • This was DB.
    • Conditions basically built in to get you to a no effect.
      • This is more like minimization.
    • One example because of minimizations we came to a No Historic properties Affected.
      • Got plans to shrink easement to not be in HP boundary.
      • Put in plans to put up fencing to protect resource
    • On one project we worked with engineer and contract on a unique construction method to avoid damaging old coal room wall and to monitor the building
    • On EA projects you see conceptual plans rather than 30% or 60%
      • So will conditionally clear them upon review of 30%-60% and final plans.

• Question only for State DOTs and FHWA: Have you had to make findings of No Effect and No Adverse Effect for projects that use alternative approaches to project delivery, such as

• design- build, Construction Manager/General Contractor (CM/GC) or Public Private Partnerships?
  • If yes, did you have to apply these effects finding in ways that were different from applying these findings to a standard design-bid-build approach to project delivery (e.g., different in terms of the timing of these effects findings, the consultation process associated with making these findings)?
    • These types of projects typically require multiple reviews and multiple consultation points with SHPO and CPs. We often consult early on with a general proposal of the work, and then submit additional information as it becomes available. At each step, we work with the engineers, project managers, consultants, and contractors on minimization and avoidance measures that we can bring to SHPO and the CPs at the next consultation point.
    • For DB, we use early design documents for reviews/Section 106 coordination, and then require updated drawings and review of final plans to ensure consistency. We often also add notes to the early set of plans or set out parameters for design that must be followed or if not, then further coordination with historian is required.
  • If yes, how were they different from your standard approach to making these effect findings?
    • These are challenging, you really need to be on top of it – there’s just a lot more consultation – watch dogging.
    • Except for DB there are fewer knowns at the beginning.
    • Scope creep with DB.
    • With DB, the contractor is brought on earlier may prevent more back and forth down the line.

• What is your experience with consulting with CPs (such as national preservation organizations and state and local organizations) in making findings of No Effect and No Adverse Effect?
  • What specific successes have you had?
    • More success with larger EA or EIS project due to meetings to discuss APE and survey report.
    • Smaller CatEx projects – tight timeframe.
  • What specific challenges have you had?
    • CPs don’t understand how we evaluate resources.
    • Pulling in things not really related to historic resource and using those things to argue against a project or wanting certain changes to be made.
      • Old lime kiln site that had been turned into his weird arts community – a lot of history but no integrity.
      • CP turned to maintenance facility across the street, even though it had been here over 70 years – they wanted it out. Maybe these are other environmental issues or transportation – not really history things.
      • The TCP – the CP (local agency project) was mad about road. Master plan hadn’t been updated for 20 years – great concern but not Cultural staff area – that is a city issue.
      • Unlike the linear checklist, it’ shard to make a checklist for how

• • • • to resolve these types of challenges.
  • What measures would you suggest for addressing those challenges or what measures have worked or not worked in the past?
    • We have developed a section on our website for CPs so they understand what we’re asking for and how they can participate, and we include the link to this information in all our letters to CPs.

• When do you notify CPs
  • When we send to SHPO CPs get version of same letter – set up in PA to identify CPs and certain parties we will always notify for certain things.
  • If we know a project will be contentious, we try to get the city to do engagement with public meetings so that the community has familiarity before DOT gets involved with Section 106.
    • Early outreach is helpful.

• What successes have you experienced in documenting and communicating No Effect and No Adverse Effect findings to the public?
  • Can you please describe some specific examples of successes and describe why they were successful?
    • Using the NEPA public involvement process to include “information boards” on historic property findings. Block by block on site meetings with property owners. Sharing Section 106 correspondence with CPs. Websites onprojects that include information on environmental impacts, including historic resources.

• What challenges have you experienced in documenting and communicating No Effect and No Adverse Effect findings to the public?
  • Can you please describe some specific examples of these challenges and describe why they were a challenge?
    • Section 106 process is extremely complex making it difficult to explain to the public in a way that makes sense.
• Question for State DOTs only: When one of your projects crosses lands managed by a federal agency, such as the BLM, U.S. Forest Service (USFS), or NPS, how do you handle making findings of No Effect and No Adverse Effect?
  • Does your agency make the effects determination and then obtains concurrence/agreement from the federal agency? Does the federal agency make the determination and then provides you documentation on their determination? Do you follow some other approach in making these findings? Do you have a different process for different federal land-managing agencies?
    • Federal lands MOU with DOT, USFS – if the project is in highway easement deeds, we will follow FHWA processes.
    • A couple of letters with BLM that delegates consultation process to DOT when in highway easement deed.
    • Also, delt with air force academy land (cultural landscape)
      • A lot of back and forth with them.
    • Different types of communication depending on the project.
    • Generally, our approach is to look at project, see what resources might be

• • • affected, and let that agency know. We ask “Are you okay with us being the lead agency and our identification and effects assessment?” - usually BLM, USFS and Bureau of Reclamation – they are usually pretty amenable and agree.
      • Usually notify USFS with SHPO.

• Question for State DOTs only: When one of your projects requires a permit from the U.S. Army Corps of Engineers (USACE), how do you handle making findings of No Effect and No Adverse Effect?
  • Does your agency make the effects determination and then obtains concurrence/agreement from the USACE? Does the USACE make the determination and then provides you documentation on their determination? Do you follow some other approach in making these findings? Do you have a different process for different USACE Districts in your state?
    • We usually do the work for the USACE.
    • USACE usually has different APEs (they use permit area).
    • They often jump straight to adverse effect.
    • Talked about putting together an agreement with USACE – but doesn’t really happen enough and its just complicated.

Does it usually become with USACE permit area for APE?

• We tend to do our state process.
• They’ll do 106 with our data.

CONSIDERATION OF EFFECTS DURING PROJECT PLANNING AND EARLY PROJECT DEVELOPMENT (ONLY DIRECTED TO FHWA DIVISION OFFICES AND STATE DOTS)

Noted in survey responses that the agency sends a PEL process report, which is pre-NEPA, to SHPO for review – not Section 106 in PEL, so just a way of showing known resources in relation to a proposed project area/corridor.

For most projects (Categorical Exclusions particularly), effects to historic properties are considered as early as the scoping phase of a project. For larger CatEx projects as well as Environmental Quality and EIS projects, consideration of historic resources is made as early as when a potential project is identified, such as in the 10-year plan or STIP.

TRIBAL CONSULTATION AND ENGAGEMENT

Region 5 – built environment had to reach out to Tribes because resource was on Tribal land.

• Some outside of usual process.
• Most Tribal offices are understaffed with so many requests.
• Different kind of challenge working with the Tribes and realizing they are not just interested in archaeology – like landscapes.
• Tribal resources are not just archaeological in nature.

• 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 when consulting and engaging Tribes?
  • I-70 Mountain Corridor separate PA with Tribes.
  • Balancing project schedule with 30-day review period knowing that Tribes are likely overwhelmed. So, asking FHWA if they are okay with us moving forward.

NCHRP Project 25-65

PREPARING SUCCESSFUL NO EFFECT AND NO ADVERSE EFFECT
SECTION 106 DETERMINATIONS: A HANDBOOK FOR
TRANSPORTATION CULTURAL RESOURCE PRACTITIONERS

INTERVIEW QUESTIONNAIRE FOR FEDERAL HIGHWAY
ADMINISTRATION HEADQUARTERS

FEDERAL HIGHWAY ADMINISTRATION HEADQUARTERS (FHWA HQ)

Date of Interview: June 5, 2023

Text in blue indicates interview responses.

Text in green indicates interviewer’s follow-up or off-script questions.

• Have FHWA Division Offices and/or state DOTs discussed with you or raised issues about the challenges they have encountered for any of the following in relation to making findings of No Effect and No Adverse Effect under the Section 106 process, in the context of Federal-Aid Highway Program funded projects?
  • Effects on archaeological sites
  • Effects on properties of religious and cultural significance
  • Effects on historic bridges
    • Interviewee 1: bridges should never be an issue. They are a static resource. Not a national issue. Issues are one-offs.
  • Effects on HDs
  • Effects on linear historic resources such as historic roads or irrigation systems
  
  If yes, what were the challenges, and how did the Division Offices and/or state DOTs address these challenges? If they were not able to address the challenges why was this the case?
• Have FHWA Division Offices and/or state DOTs discussed with you or raised issues about the challenges they have encountered with these effects findings in the context of specific types of projects, such as those involving bridges; streetscape, sidewalk or ADA projects; or other types of transportation projects? If yes, what were the project types and challenges, and how did the Division Offices and/or state DOTs address these challenges? If they were not able to address the challenges why was this the case?
  • Interviewee 1: Streetscapes, sidewalks, and ADA are much more variable especially as we evolve in not cities (cities know how to deal with these) but as we get into post-WWII suburbanization. Now its local downtown main streets having problems

• • with these. Struggling with HDs and Streetscapes and ADA. We’ve dealt with all the cities. In Mid-America with suburbanization and HDs in that landscape, those are still relevant. And just in general, the fact that when we look at things 50 years old andpotentially historic, we are continually evolving above ground resources and below ground resources.
    • The effect – Route 66 is a historic road – how much widening can we do before a No Adverse Effect becomes and Adverse Effect?
    • The seven aspects of integrity for eligibility criteria – how much widening is going to change the setting and feeling of Route 66?
    • These are esoteric, academic issues.
    • Issues with recent in nature historic properties and where the effects are:
      • Indirect effects
      • Vibration monitoring
      • Visual effects
      • How do we define cumulative effects. – what constitutes cumulative effects to a historic property? – especially if impacted before the laws were enacted.
    • Struggles from a regulatory standpoint.
  • Interviewee 2: see often are situations where there’s a lot of personal attachment of personal significance for a property so the academic definition for No Adverse Effect can really rub individuals wrong because they may place value personally.
    • You have certain challenges with some people making use of Section 106 process to hinder a project. – work through in the consultation process. Usually, can negotiate to a solution.
    • We are often concerned with the setting of precedence.
  • How do you negotiate?
    • Interviewee 2: individuals who have strong personal connections to properties often have access to information and can help FHWA create a more informed decision.
    • Interviewee 1: with a passionate 106 Consulting Party (CP), the CP may push the SHPO to dispute FHWA or may dispute FHWA outright.
      • I want to promote, when there is an effect dispute, it does not automatically mean we go to the ACHP with a formal dispute.
      • A lot of our effect dispute, we resolve through negotiations with our liaison at ACHP through technical guidance.
      • My job as the FPO to try to resolve dispute through negotiation through consultation before a formal dispute.
        • We don’t pull that trigger until we have no other choice.
      • Assistance of division office, resource center, liaison and ACHP with technical assistance
    • Interviewee 2: Opportunity for folks challenging determinations to educate people on the process.

When you run into these challenges such as streetscape and ADA issues, how do you see working with the local folks and DOT to address those challenges?

• Interviewee 1: yes, I deal with this every day, so does the ACHP, but a lot of times when we

• get to the local level, we try to tell the DOT they need to do a better job of educating their project sponsor or recipient. Inform the DOT that you need to educate project sponsors better about what constitutes the threshold of No Effect, No Adverse Effect when it comes to streetscapes, ADA, sidewalks. Effect threshold education. – DOT needs to take the onus to help the project move forward instead of bringing it to FHWA.
  • Consultants should be adept in the threshold as well.

• Have FHWA Division Offices and/or state DOTs discussed with you or raised issues about disagreements or disputes they have experienced when consulting with SHPOs or other CPs on No Effect and No Adverse Effect findings?
  • What were the disagreements or disputes about?
  • What were the solutions to the disagreements or disputes?
  • Was the Advisory Council brought in to review the disagreements or disputes? If yes, what were the outcomes of the Advisory Council’s review?
  • With SHPO’s they think they’re educated, that is the position they have taken, when there is that dispute, you bringing FHWA division office, ACHP to bring in technical assistance.
    • Interviewee 1: Right, SHPO is the official with jurisdiction. I will not step on their turf. So, when we have a disagreement with SHPO on effect, I will negotiate first. FHWA to be the referee. Agreement with ACHP to not pull the trigger right away on a formal dispute.
    • Want to set precedence as well as avoid precedence.
      • Don’t want repeat disputes.
    • Interviewee 1: advocates that DOTs and SHPOs need to be talking outside of a project to create a good relationship.

• From your national perspective, are there any other issues or challenges you would like to discuss that FHWA Division Offices and/or state DOTs are experiencing around the country?
  • Interviewee 2: most of the property types that we are talking about (historic bridges, streetscapes, HD, ADA) is the nexus between a historic property and a living active transportation system. These living elements don’t exist in a bubble and need a purpose to be preserved while keeping integrity and CDFs to the maximum extent.
    • Need to build trust that we aren’t looking to pave over the world so much as to maintain what’s important about this resource in the context of what important to this active living system.
  • Interviewee 1: TCPs and cultural landscapes – doing so much more with these types that are pushing the envelope that and causing challenges.
    • “The landscape is sacred” – anything you do is a potential impact.
    • Where is this going? This has come up and we are not going to solve this problem and is this about consultation with tribes?
      • It’s okay to ask the questions. It’s okay to ask the hard questions.
      • 106 CP meeting and the CP says that hill is consultant as a consultant you need to write it down and relay that to the DOT and ask the question how are we going to negotiate with the tribes, FHWA, and ACHP?
      • Ask the hard questions in the appropriate manner. Don’t manipulate the question, just give the facts.

• • Interviewee 3: consistency among SHPOs
    • Interviewee 1: oh, there’s no consistency.
    • Interviewee 3: when you are talking about No Effect and No Adverse Effect – if you have a multi-state project you have different views and that’s a challenge.
      • No one is asking for SHPO consistency, people just want consistency in surveys and projects.
    • Interviewee 3: there should be a consistent approach to Section 106.
    • Interviewee 2: is there consistency in how the state DOTs are approaching Section 106? The answer is typically no.
      • I don’t think we need to be quite so afraid of Section 106 as many seem to be, but I do agree there is a huge consistency issue.
      • National Conference of State Historic Preservation Officers (NCSHPO) has an opportunity to converse more across the SHPOs – might be a detriment to some. But there are opportunities for SHPOs to meet.
    • Interviewee 2: other challenges we are seeing - what do you do when you have an Adverse Effect?
    • Interviewee 1: this research should conclude with and here are ten more questions….
    • Interviewee 1: ACHP and FHWA have not had a clear and consistent answer on cumulative effects.
      • Skirting the answer.
      • For handbook: it’s not time immemorial – the date of the federal law is the year we apply with the law. So, anything pre-1966 is agency decision to consider and subjective.
        • ACHP not willing yet to come out with anything on cumulative effects.
      • Interviewee 2: policy isn’t static, it evolves with different administrations, sensibilities.
        • Best to look to case law.
    • Interviewee 1: I think this is good research – I’m excited but, I am a little cautious.

NCHRP Project 25-65

PREPARING SUCCESSFUL NO EFFECT AND NO ADVERSE EFFECT
SECTION 106 DETERMINATIONS: A HANDBOOK FOR
TRANSPORTATION CULTURAL RESOURCE PRACTITIONERS

INTERVIEW QUESTIONNAIRE FOR FEDERAL RAILROAD
ADMINISTRATION

FEDERAL AGENCY: FEDERAL RAILROAD ADMINISTRATION (FRA)

Date of Interview: June 7, 2023

Text in blue indicates interview responses.

Text in green indicates interviewer’s follow-up or off-script questions.

• Has the FRA encountered any challenges in relation to making findings of No Effect and No Adverse Effect under the Section 106 process for any of the following types of resources?
  • Yes! We have many challenges. Went from 4 to 11 cultural staff.
    • Section 106 is one of the biggest challenges FRA encounters in the NEPA process.
    • The railroad is historic, and we don’t have property type exemptions.
      • Program Comment is not extensive.
    • Encounter challenges with all of these property types below.
    • We rarely make No Effect findings. Unless a technical study that doesn’t lead to putting shovels in the ground, those administrative exercises that will reach a No Effect.
    • Most of the time it is No Historic Properties Affect, or No Adverse Effect.
  • Program comment does not really have space for archaeological sites or TCPs.
    • Tribal concerns regarding landscapes or TCPs occasionally intersect with FRA projects.
    • Tribes are sometimes unwilling or not able to provide information on eligibility of TCPs.
  • Effects on archaeological sites
    • Archaeology sites might be underneath a railroad, plus the railroad is historic.
    • Tribes don’t necessarily care if the artifacts are not arranged as they originally were – we balance that with disturbance projects – we do have to make considerations.
    • Still have to assess projects in entirety under program comment, but we still consult on everything with SHPO.
  • Effects on properties of religious and cultural significance
  • Effects on historic bridges

• • Effects on HDs
  • Effects on linear historic resources such as historic roads or irrigation systems
    • Railroad ROW program comment.
    • Linear railroad that has been determined eligible by other federal agencies, by FRA through 106 process.
      • A good part of the railroad has been determined eligible and crosses multiple states.
    • If we have a project that is not exempt from program comment if a resource hasn’t been evaluated we can assume its eligible and then make considerations for No Adverse Effect. If an Adverse Effect is possible, then we would probably need to do the evaluation.

• • • • For purposes of project, we assume eligibility for the undertaking only if we know there will be no Adverse Effect.
  
  If yes, what were the challenges, and how did the FRA address these challenges? If FRA was not able to address the challenges why was this the case?
• Has the FRA encountered any challenges with these effects findings in the context of specific types of railway projects? If yes, what were the project types and challenges, and how did the FRA address these challenges? If FRA was not able to address the challenges why was this the case?
  • Build new railways
  • Replace bridges
  • Bridge repairs
  • Sidings
  • Expand historic stations
  • Alterations to historic stations (ADA compliant for example)
  • Any capital project that Amtrak undertakes has to go through 106

We deal a lot with private companies as opposed to public. Huge range of folks to interact with.

• A lot lack Section 106 knowledge because when they pay with own money, they don’t have to do Section 106
• If you want FRA money, there are strings attached.
• Because of Nationwide FRA focus – we deal with SHPOs and THPOs across the country.
  • There is not consistency between SHPOs.

Other than staffing up in dealing with those multiple SHPOs have you figured out how to meet those challenges?

• Training videos about program comment.
• Internal templates.
• Challenge is how we share information with staff – with most people being remote.
  • When we did our reorg. We went from regionally focused work to more national.
  • Sharing lessons learned is something we are focusing on.

• Has the FRA had any disagreements or disputes when consulting with SHPOs or other CPs on No Effect and No Adverse Effect findings?

• • What were the disagreements or disputes about?
    • Several CPs (not the SHPO) disagreed, including the National Trust, we had over 50 historic properties within the area of potential effect (APE)and some CPs disagreed with our effect determination for one specific urban HD. National Trust said FRA needed to go to ACHP. The ACHP clarified that it’s for the undertakings as a whole for the finding not a specific property.
      • We went back and did additional research to prove our point and just submitted a less specific letter.
      • Did not want to set precedent that traffic increases would be an Adverse Effect to an urban HD.
    • Project – SHPO has been saying the project would have an Adverse Effect.
      • We are not ready to elevate to ACHP.
    • Interviewee 1: somewhat in progress. Railroad siding – initially archaeology investigation is occurring in disturbed and fill – one of the Tribes not satisfied with that assessment and asked for or expected additional testing.
      • The archaeologist had reasons why they wouldn’t recommend further testing. And with sponsor support we went ahead with more testing to satisfy Tribe would be worthwhile. May have been related to being near trail of tears, but Tribes did not provide clear reason on why they wanted more testing.
      • Came to a compromise to prevent further disagreement.
    • Interviewee 1: high-speed rail in transportation corridor – cumulative effects (visual, vibration, etc… and physical effects. Section 106 cumulative effects often conflated with NEPA cumulative effects – which are not the same. Cumulative being caused by the undertaking specifically (106) not about what could be happening in the area (NEPA).
      • Indirect effects are not just noise and vibration – those can have direct effects and how do we describe that. How do we correlate NEPA analysis to Section 106 cultural?
      • For new transportation these types of things will continually come up.
      • I talked to technical experts on where people do a good job on noise and visual?
  • What were the solutions to the disagreements or disputes?
  • Was the Advisory Council brought in to review the disagreements or disputes? If yes, what were the outcomes of the Advisory Council’s review?
    • We try to avoid going to the ACHP – unless you have certainty on how they are going to respond – it can be a wild card and it can take a lot of time and is burdensome.

• What is your experience with findings of No Adverse Effect with conditions, following 36 CFR 800.5(b)?
  • Can you please describe by providing a project example?
    • We do these when projects may not be fully flushed out in design when we need to award the grant. Say “project sponsor will continue design coordination with the SHPO as design progresses”.
    • Often used with Amtrack projects. – they would change their project

• • • every month.
      • FRA will step in if dispute.
    • Usually make changes to the design or project before making the effect finding.
    • Really just with rehab projects.

• From your national perspective, are there any other issues or challenges you would like to discuss that the FRA is experiencing around the country?
  • Streamlining is probably a common challenge for everybody.
    • There is no ubiquitous or boring clause – you can’t just not consider things just because they are everywhere.
    • How much is enough to meet the threshold for identifying and evaluating properties without being a burden to a project.
  • 106 process has to fit within NEPA.
    • Specifically, EIS is most challenging 106.
    • No timeline on 106.
  • Small problem with Program Comment (PC) was when we partially exempt projects and how we present that information to SHPOs. PC says its federal agency’s responsibility to show that data.
    • We did have a few SHPOs, even though we said it was exempt, they would say it’s not exempt. But that’s not part of the PC. PC says SHPO can say it’s an Adverse Effect, they are not allowed to just say we don’t think you can exempt this.
    • It is a streamlining measure – but educating the SHPOs on what the PC is.
    • We just say there are exempted activities here are the non-exempt that we are consulting on instead of giving the reason – we used to get to many comments on reasons.
    • Lack of understanding from the SHPO.
  • Challenges in terms of nationwide different expectations of consultation and documentation.

NCHRP Project 25-65

PREPARING SUCCESSFUL NO EFFECT AND NO ADVERSE EFFECT
SECTION 106 DETERMINATIONS: A HANDBOOK FOR
TRANSPORTATION CULTURAL RESOURCE PRACTITIONERS

INTERVIEW QUESTIONS

SHPO

Date of Interview: June 2, 2023

Text in red indicates previous, consolidated responses to the online survey.

Text in blue indicates interview responses.

Text in green indicates interviewer’s follow-up or off-script questions.

RESOURCES

The following questions ask about the resources commonly used by your agency when conducting an assessment of effects.

• What specific resources, procedures, or policies does your agency have that assist in making findings of No Effect or No Adverse Effect? Can you share these with us?
  • Defining a project APE
  • Applying National Register eligibility criteria, identifying CDFs, Identifying, and assessing integrity
  • Defining the boundaries of a property
  • Making findings of no effect and no adverse effect and how to document these findings.
  • Procedures for communicating findings.
  • DOT technically makes the finding but have a cultural resource manual which is online. Explains different documentation types for each type of effect. That’s what SHPO uses when it comes to DOT – tied to statewide PA.
    • There is a procedure for updating the PA and cultural resource manual and SHPO is a signatory.

• Question for DOTs, SHPOs, and FHWA only: Do you have a statewide delegation PA that includes stipulations on making findings of No Effect (in the context of No Historic Properties Affected findings) and No Adverse Effect?
  • The PA– not just FHWA DOT and SHPO. It also includes U.S. Army Corps of

• • Engineers (USACE).
    • When USACE has a DOT project they delegate to DOT.
    • There is a stipulation in PA that goes over basics of project review and the different types of effects that could come through.
  • If yes, do these stipulations use the same wording (or approximately the same wording) that is in the Section 106 regulations (i.e., 36 CFR 800.4(d)(1) for No Historic Properties Affected and §800.5(b) for No Adverse Effect) or do they simply refer to these two sections of the regulations?
  • Or does your PA provide for an alternative approach to making these two effects findings that is different than the standard approach in the regulations (e.g., making a finding of No Historic Properties Affected without SHPO consultation)?
    • There are some things that are excluded from coming to SHPO – continual list but in cultural resources manual.

• Question for DOTs, SHPOs, and FHWA only: If you have a statewide delegation PA that includes stipulations on making findings of No Historic Properties Affected and No Adverse Effect, is the implementation of these stipulations working well?
  • If they are not working well what changes would you like to make to these stipulations, if you could make change? If they are working well, would you still want to modify the stipulations if you could in order to improve their implementation?
    • 2019 PA – has been working well. Updates due for 2024.
    • Big step forward, because previously felt like we had tons of agreement docs.
    • Helpful to streamline projects that DOT and USACE do together.
    • Cultural resources manual has helped guide our reviews of everything and what to expect. Very helpful as supplement to PA.

PRACTICES, APPROACHES, AND EXPERIENCES

• In your experience, why are the following elements important in making a well-reasoned and defensible finding of No Effect and No Adverse Effect?
  • Well-defined historic property boundaries
    • Not just looking at the structures, looking at the property as a whole. When you’re talking agricultural properties and properties that have changed through time its important.
    • Visual boundary, parcel boundary, or multiple parcel boundaries – it is really very helpful as you are identifying resources.
    • Does manual have guidance on this?
      • I don’t think it gets into that. Mostly gets into APE.
    • DOT is consistent about describing boundaries for different property types consistently.
    • Property information form from DOT has section to describe boundary.
  • Explicit identification of historic property significance and CDFs
    • Because that is what you have to look at for what’s being impacted.
    • Hard to assess affects because you don’t know what is technically affected when no detailed description is provided.
  • Explicit identification of associated aspects of integrity
    • All consistently communicated in DOT property information forms.

• • • Guidance in place helps to keep reviews consistent and streamlines the process on our end of assessing it for comment.
  • Clear and comprehensive list of project activities and their locations
    • Cultural resource evaluations come kind of early in the DOT process; however, we find that the SOW is fairly well established by the time we see it.
    • We do occasionally get project reevaluations that shift easements or sometimes slight alignment adjustments.
    • Very rarely do we need to add new comments.
    • If project scope has changed and new resources have come into the APE or project has extended its timeframe and some resources have become of age.
    • Helpful to know that DOT does the actual Section 106 process steps.
      • Start with broad APE with initiation.
      • Then send cultural resource survey with possibly refined APE.
      • Then at effects stage they are much more refined and there’s not a lot of comments after that.
      • Usually, DOT automatically reevaluates big projects every five years or so.
    • Reevaluation memos part of PA or in manual?
      • In Manual
      • Manual has templates of memos and letters that they do.
  • Project plans
  • Other: Sufficient supporting documentation – photos, maps, plans, etc.;
    • As relating to both project activities but also photos of the resources.
    • Photos need to show what’s being impacted within that resources.
  • Other: Understanding of existing agreement documents between the agency and SHPO that govern Section 106 procedures for that particular agency.
    • Bigger picture comment – often wrong people initiating Section 106.
    • With the newer PA with USACE has taken some time for people to get used to.

• As defined by ACHP, indirect effects to a historic property are “…those caused by the undertaking that are later in time or farther removed in distance but are still reasonably foreseeable” (ACHP 2019b).
  • How have you applied indirect effects to your determinations of No Effect or No Adverse Effect following the 2019 memorandum?
    • DOT seems to define it a little differently – they consider indirect effects visual, audible, etc. and then also foreseeable with new road projects.
    • Such a squishy area for everybody, not just DOT but us as well – for cumulative – how far do you go? Glanced at but not thoroughly investigated.
    • Hard to tell whether foreseeable are being assessed appropriately or not.

• How have you applied cumulative effects to your determinations of No Effect or No Adverse Effect?
  • DOT does look at cumulative.

• What challenges, if any, have you experienced in making or reviewing direct vs. indirect and cumulative effects?
  • What were the challenges?
    • Many federal agencies or delegates don’t even touch indirect, cumulative.
    • The severity of indirect effects is harder to gauge, and it can be more difficult to relate the impacts of the indirect effect to specific areas of integrity.
  • How were you able to address the challenges? If you were not able to address the challenges why was this the case?
    • Usually, would have some sort of conversation or meeting with DOT.
    • If DOT expects something they will usually reach out ahead of time.
    • Good communication with difficult projects.
    • Recently pointed out potential audible effects that were missed and USACE and DOT agreed to meeting about that and were very agreeable to revising the assessment of effects.

• 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)?
  • What were the challenges?
    • Many projects that convert intersections along historic roadways that are considered NRHP-eligible from traditional designs to roundabouts are considered to have no adverse effect. When reviewing projects independently of one another, this seems true, however, it appears that eventually a tipping point will be reached where enough intersections have been converted that a design element of the historic roadway will have been lost without ever having been considered an adverse effect. This issue also appears in projects that propose to add sidewalks along segments NRHP-eligible roadways where the rural shoulder is considered a contributing element.
      • Highway – calling it eligible and what we are seeing that these intersections are being changed into roundabouts. One or two would not really impact the eligibility; however, as they increase in numbers, that’s going to impact the road and they haven’t been looking at them more holistically on these historic roads.
        • DOT is willing to take a look at this from a different approach, but the projects are still happening.
        • Might already have been a cumulative effect or will there be?
  • How were you able to address the challenges? If you were not able to address the challenges why was this the case?
    • PA and Manual are coming up for update and DOT has already started the process of giving us the heads up, here is our timeline, and how to look at these linear resources and roundabouts is definitely something we can bring up and have a discussion with DOT about it.
    • Just continuing the communication helped – alerting DOT to SHPO thoughts to have a wider look at these types of projects.
    • Highway study put on hold does make it more challenging.
  • Have some types of projects been more challenging than others? If so, why?

• • • The more complicated/larger the project the more challenging it is, that is where supporting documentation is even more important – simulations, elevations, etc.
      • Especially for DOT things, the ones I have a hard time with are ones where the road elevation changes – adding flyovers and highways, or even a bridge being raised to fit double stacked railroad underneath, which is what gets to the simulation and elevations being important.
      • DOT good about providing view simulations, etc…this is very helpful – consistently been hard to understand, even smaller scale elevation changes.
      • DOT will sometimes send options for types of railings with different slopes for example.

• What challenges have you experienced in making or reviewing No Effect and No Adverse Effect findings for certain categories of historic properties, such as historic bridges, traditional cultural properties, and linear historic properties?
  • Linear historic properties
    • A few canals
  • Historic bridges
    • Have an agreement, sort of, in cultural resource manual – historic bridge program - currently being updated.
      • Look at numbers, inventory, better representations, what are eligible?
      • SHPO agrees to it, so projects are easier.
  • TCPs are new for us.
    • Impacts – we make sure the Tribes are involved.
    • DOT doing interesting mitigation at TCPs – cultural plantings.
  • What were the challenges?
  • How were you able to address the challenges? If you were not able to address the challenges why was this the case?
    • Technical assistance meeting when there was an unanticipated effect – with Tribes, DOT, USACE.

• What experience have you had with disagreements or disputes on No Effect and No Adverse Effect findings?
  • What was the disagreement or dispute about?
    • Happens every now and then – typically have technical assistance meetings on larger projects; smaller projects usually just agree with us if they feel not a big deal.
  • What was the solution to the disagreement or dispute?
    • Usually figured out with more explanation on the project – typically we don’t have enough information to agree.
  • Did you contact the ACHP to review the disagreement or dispute? If you did, what was the outcome of the ACHP’s review?
    • None for effects – tends to be more about

• eligibility. Technical assistance meetings.

• • By project.
  • Have a monthly meeting with DOT to have bigger picture conversations if needed.

• What is your experience with making or reviewing assessments of No Adverse Effect with conditions, following 36 CFR 800.5(b)?
  • Can you please describe by providing a project example?
    • Condition not followed in one project?
    • We don’t tend to do that much with DOT.
    • DOT tends to assign themselves conditions with best management practices already in place to avoid an adverse effect (such as barriers or markings on plans)
    • Once or twice, we have added conditions to a No Adverse Effect – kind of as an afterthought.
    • When USACE is lead, sometimes they apply special conditions to a project instead of SHPO applying them themselves.

• Considering some of the challenges of working with private consultants, community groups, and other entities that provide resource identification and effects documentation to your agency, what measures would you suggest for addressing those challenges or what measures have worked or not worked in the past?
  • Archaeologists completing built environment evaluations.
    • DOT contracts out work and has some cultural resource firms do their surveys and effects assessments.
    • A lot are really only focusing on archaeology, and they can’t accurately assess effects to built environment or evaluate them.
    • Mostly reactive measures – not super widespread so no need for proactive measures.
    • DOT internally reviews the reports and will often catch these issues.
  • Technically we aren’t the ones who work with the groups, but we often get contacted by them when people are in their front yard.
    • Usually direct them to DOT

• In your experience, what are some of the best approaches for establishing and maintaining positive relationships among the transportation agencies and CPs in the context of the no effect and no adverse effect determination process?
  • For SHPO/DOT relationships – meeting often and having open discussions about bigger picture items helps get ahead of the issues.
    • Continual discussions.
    • Point out things you are seeing but not thinking they are going to change for a specific project.
    • Years long process with SHPO leadership and DOT leadership to foster those lines of communication –
      • Monthly meeting – since 2018/2019 – originally weekly meetings reduced to monthly as things have been working

• • • • well.
      • Technical assistance meetings when needed – always been part of the process.
        • FHWA funds specific DOT reviewers at SHPO which also includes the process for technical assistance meetings – at least 10 years ago.
      • Communication infrastructure.
  • In last five years with DOT manual and PA, communication has improved.

DOT does a really good job with Tribal consultation; FHWA and USACE have delegated some of those responsibilities to DOT because they do such a good job. Very proactive about involving Tribes.

NCHRP Project 25-65

PREPARING SUCCESSFUL NO EFFECT AND NO ADVERSE EFFECT
SECTION 106 DETERMINATIONS: A HANDBOOK FOR
TRANSPORTATION CULTURAL RESOURCE PRACTITIONRS

INTERVIEW QUESTIONS

STATE DOT

Date of Interview: May 31, 2023

Text in red indicates previous responses to the online survey.

Text in blue indicates interview responses.

Text in green indicates interviewer’s follow-up or off-script questions.

RESOURCES

Minor projects Programmatic Agreement for years, but FHWA says they should have a full one. Hopefully soon they will be revising the Programmatic Agreement for more than just minor projects. Keeping it smaller in scope.

PRACTICES, APPROACHES, AND EXPERIENCES

• In your experience, why are the following elements important in making a well-reasoned and defensible finding of No Effect and No Adverse Effect?
  • Well-defined historic property boundaries
    • In the past people have been haphazard with that and gets us trapped, including sidewalks, not including, mailboxes. If it’s consistent it’s easier to defend.
    • Happens a lot with farmsteads and canals.
    • Working on a huge project now where the property boundary needs to be consistent or at least have a reason for what is and what is included.
    • Can’t just use the parcel boundary is not always equal to the site boundary.
    • 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.
    • Sidewalk projects: struggle with how to define property boundaries with intermittent sidewalk.

• • • • ROW isn’t the historic property boundary.

Interviewer: Any guidance on how to make those decisions?

• • • • We do it on a project-by-project basis – no formalization written guidance.
  • Explicit identification of historic property significance and CDFs
    • Is that flower bed that’s out past the sidewalk a CDF?
    • Period of significance is key.
  • Explicit identification of associated aspects of integrity
    • A lot of times consultants don’t address integrity explicitly.
    • Makes it more clear for everybody.
    • Some buildings may be significant but lack integrity and therefore not eligible.
  • Clear and comprehensive list of project activities and their locations
    • A battle on every project we do.
    • Big thing is tree removal – highways that go through historic towns. Widening projects often require removing trees.
      • Vegetation removal often not part of list of activities
      • What drainage?
      • Will you remove landscape features?
    • Worked hard to help project managers give us better lists of projects activities.
      • Have to decipher project maps that often don’t match what they initially described.

Interviewer: At what point do you get a project?

• • • • That’s one of the problems – we do get stuff very early in the process when they don’t know exactly what they are doing.
      • In the environmental process cultural is the first touch point – usually we are pretty early in the process and that does help stave off some issue and problems, but the unwillingness to give information, then we can’t get you a clearance.
  • Project plans
    • These are awesome when we get them.
  • Other: Project schedules
    • When you try to do Cultural resource compliance, when way ahead of time must consider age of resources on the cusp of 50 years.
    • Could be No Effect or No Adverse Effect maybe because of the schedule, but if it’s a long project a house may become eligible within the time frame of the project.

• As defined by ACHP, indirect effects to a historic property are “…those caused by the undertaking that are later in time or farther removed in distance but are still reasonably foreseeable” (ACHP 2019b).
  • Have you applied indirect effects to your determinations of No Effect or No Adverse Effect?
    • Yes, on every project.
  • If so, how?

• • • Indirect, cumulative, visual, auditory, all at the time of the project.
    • Don’t think we have done a good job and neither does our SHPO.
      • SHPO has asked, for HDs local road projects, how do our projects affect a greater potential HD?
      • But inconsistent with how the DOT is viewing them and how SHPO is viewing them.
        • Makes it hard to have expectations as to what needs to get done.

Interviewer: Is it worse when there is an area where no resources have been identified?

• • • • • I think it’s the opposite – when we have a lot of individual resources identified but have not been looked at cumulatively.
        • Don’t really have a path forward for ones with no identified resource areas.
        • It is hard because we are a quickly developing state. All those people moving into farms and piping canals and developing.
          • We haven’t been able to wrap our heads around how that should be looked at.

• How have you applied cumulative effects to your determinations of No Effect or No Adverse Effect?
  • When you have a two-lane country road that is now being widened – now people start building stuff all over the place.
    • Dealing with such small sections at a time and hard to account for cumulative in sections.

• What challenges, if any, have you experienced in making or reviewing direct vs. indirect and cumulative effects?
  • What were the challenges?
    • SHPO often does not agree with our application of indirect and cumulative effects. They think there should be more.
  • How were you able to address the challenges? If you were not able to address the challenges why was this the case?
    • Not yet

• 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)?
  • What were the challenges?
    • It is effects to the characteristics which make the property eligible for the NRHP. SHPO, consultants, others do not apply this correctly. We have too many Adverse Effects and No Adverse Effect findings in my opinion that the DOT/FHWA has to argue differently when we submit a report to SHPO.
      • All the time especially on farmstead where maybe we have identified the boundary, includes the orchard, includes the grass out front, and so

• • • • we are going to take six inches of the resource. And a consultant says, “you’re touching the parcel, it’s an AE”. But the DOT disagrees because that does not affect the things that qualifies it for the NRHP.
      • So, you have to know integrity and eligible criteria and then what the effects are to the characteristics which are important. There is a lack of understanding of the regulations among consultants and SHPO.
  • How were you able to address the challenges? If you were not able to address the challenges why was this the case?
    • Had to explain to SHPO staff in person the regulations. And that has helped.
    • Engaging with SHPO to find more consistency in determinations.
    • We try to go back to consultants and give an explanation and ask them to apply same moving forward.
      • We don’t tell a consultant what to do or what their findings should be.
      • If we disagree, we just change the finding and give an explanation/justification.
      • Mostly successful strategy.
    • Gone to ACHP when disagreeing with SHPO.
    • Eligibility issue with THPO, going to Keeper for dispute. SHPO told THPO its eligible, but the DOT argues no.
• What experience have you had with disagreements or disputes on No Effect and No Adverse Effect findings?
  • What was the disagreement or dispute about?
    • Linear sites – effect issue on a highway – long and go on forever and no real way to determine how much of an impact on the resource. Each resource has it’s own reasons for being important to reasons for impact may be different for each one.
  • What was the solution to the disagreement or dispute?
  • Did you contact the ACHP to review the disagreement or dispute? If you did, what was the outcome of the ACHP’s review?
    • Yes
  • Have you put in place any measures to avoid future disagreements or disputes on these effect assessments? If so, what are these measures?
    • Nothing has been figured out yet.
    • Some states are paying for a regional historic highways context.

• What is your experience with making or reviewing assessments of No Adverse Effect with conditions, following 36 CFR 800.5(b)?
  • Can you please describe by providing a project example?
    • A few times.
    • Replacing guardrail or railing on the historic bridge and if you use like materials we would support at No Adverse Effect determination.
    • Mostly with built environment resources.
    • Try to figure it out before with SHPO – change design before it gets to SHPO.
    • No Adverse Effect with conditions formally – and SHPO agreed with “the following stipulations”
      • Put into project plans/construction contract as environmental commitments. Not mitigations.

• What is your experience with consulting with CPs in making findings of No Effect and No Adverse Effect?
  • What specific successes have you had? – nothing specific.
  • What specific challenges have you had? – Their lack of understanding about the process. They don’t contribute anything of value because they don’t understand the process.
  • What measures would you suggest for addressing those challenges or what measures have worked or not worked in the past?
  • Can you provide project examples that highlight a success or challenge?
    • OCTA – are there Oregon trail in APE? Very sparse consultations with public organizations.
    • We would instill their opinions even if we don’t agree.

• In your experience, what are some of the best approaches for establishing and maintaining positive relationships among the transportation agencies and CPs in the context of the no effect and no adverse effect determination process?
  • Having meetings face-to-face. Meeting CPs at their place of business. Encouraging them to talk to the outreach historian at the Idaho State Historical Society who is great at explaining their roles.
  • Can you speak more to the role/activities of the “Outreach Historian”?
    • Former DOT architectural Historian that is very familiar with our transportation projects.
    • Not the state historian, outreach historian does a lot of education to local groups about the main street program, funding mechanisms, and can go and talk about programs like CLG, etc…
    • He is very knowledgeable about Idaho and Idaho history and things happening throughout the state.
    • A good resource to have.
    • Position at SHPO but he doesn’t do project reviews, but sometimes he will be brought in to get his opinion on projects.

• Question for State DOTs only: When one of your projects crosses lands managed by a federal agency, such as the BLM, U.S. Forest Service, or National Park Service, how do you handle making findings of No Effect and No Adverse Effect? Does your agency make the effects determination and then obtains concurrence/agreement from the federal agency? Does the federal agency make the determination and then provides you documentation on their determination? Do you follow some other approach in making these findings? Do you have a different process for different federal land-managing agencies?
  • We always want to be the lead agency for Section 106. We ask the agency, when we have a road that goes through your property, if it’s federal highways, almost every time they say yes to DOT being lead.
  • Anything that’s on federal property, the federal agency gets the final say on eligibility and effect, end of story. DOT agrees with federal agency no matter what.
  • But we don’t want them making determinations on state highways.
  • They don’t have to worry about DOT resources.
  • Only really works with good communication – always send report to them for review before SHPO.

• Question for State DOTs only: When one of your projects requires a permit from the U.S. Army Corps of Engineers (USACE). how do you handle making findings of No Effect and No Adverse Effect? Does your agency make the effects determination and then obtains concurrence/agreement from the USACE? Does the USACE make the determination and then provides you documentation on their determination? Do you follow some other approach in making these findings? Do you have a different process for different USACE Districts in your state?
  • Same, if there is actually USACE owned land (water control).
  • For instance, if state funded project with an Army Corps permit – USACE becomes lead agency because they are the only federal agency. So, we ask to let DOT do the work and if the USACE agree with DOT finding.
  • Sometimes we have to go to the USACE districts and sometimes deal with their cultural resources staff. They say just send them results and we will agree with your determinations and use them to issue permits.
  • No difference between districts except for consultations with Tribes. Some districts have different requests for that consultation.
  • Essentially, they are making the determination, but they are not doing the work. – helps with consistency of staff from both agencies.

TRIBAL CONSULTATION AND ENGAGEMENT

• Have you had experience applying findings of No Effect or No Adverse Effect to Traditional Cultural Properties?
  • If yes, can you please discuss how you made these findings.
    • They have to be eligible under NRHP and its effects to those criteria that get you to the determination.
    • Have to assess same as a site or historic bridge.
    • Tribes don’t necessarily have the expertise in terms of effects determinations and 106 compliance. They have the expertise in identifying the resources, but for effects, it’s a hand in hand working with them and having them understand how you get to effects decisions and working together with them is how we have made these findings.

Interviewer: Has it been working together altering the project to avoid an affect or working together to understand the significance and how not to effect them?

• • • The latter.
    • US highway – widening.
      • Tribe said everything is adverse effect that touches the resources. So DOT did a drive through with the tribe to explain that these changes are not changes to what makes it eligible.
      • TCP study/report identified rock features, etc as important, but if we are not actually touching those resources, then it should be No Adverse Effect.
      • Eventually got to a No Adverse Effect finding.
• Have Tribes ever raised concerns about reasonably foreseeable or cumulative effects, and, if yes, how did these concerns affect your agency’s decisions about making findings of No Effect or No Adverse Effect?

• • Tribes often want to go back and apply cumulative pre-1966, so no matter what you do on current project we will have an effect on the current project.

• When your agency is making findings of No Effect or No Adverse Effect on archaeological sites of value to Tribes and places of religious and cultural significance to Tribes, has your consultation with the Tribes generally been a positive and constructive experience?
  • Early coordination with tribes is essential. Providing written project information, not just electronic information. No Project-specific coordination meetings with tribes once or twice a year.
    • One Tribe for about ten years.
    • Statewide for the last few years.
  • If yes, what made it a positive and constructive experience?
    • Very constructive
    • Enlightening face-to-face
    • Both DOT cultural resource staff members go to these meetings no matter the project as well as other disciplines (environmental, fisheries, etc…)

• Does your agency consider tribal expertise in making No Effect and No Adverse Effect determinations involving archaeological sites or places of religious and cultural significance to Tribes? If you do, can you provide some examples of how this is accomplished? If you do not do this, is there a reason why you do not? Are there barriers or challenges to using tribal expertise in making these effects findings?
  • Yes, DOT reaches out when a project is on tribal land or resources.
  • Usually agree with the tribe.
  • Ask Tribes for ethnographic studies or for who should do the study.
  • Effects determinations are a bit different than eligibility because tribes don’t always understand the process.
  • Barriers: understanding of project actions – resolved by field visit.

CASE STUDY INTERVIEW QUESTIONS

• Can you provide a case study which showcases a successful project with these two findings, and an unsuccessful project, and send these to us?
  • Most of our projects get to No Adverse Effect or No Effect. out of 100 projects, we clear 50 with Programmatic Agreement, 40-60 are No Adverse Effect or No Effect. minus bridges – they are Adverse Effect.
  • By applying the regs as we think they should be, usually get to a No Adverse Effect or No Effect easily.

NCHRP Project 25-65

PREPARING SUCCESSFUL NO EFFECT AND NO ADVERSE EFFECT
SECTION 106 DETERMINATIONS: A HANDBOOK FOR
TRANSPORTATION CULTURAL RESOURCE PRACTITIONERS

INTERVIEW QUESTIONS

SHPO

Date of Interview: June 1, 2023

Text in red indicates previous responses to the online survey.

Text in blue indicates interview responses.

Text in green indicates interviewer’s follow-up or off-script questions.

RESOURCES

The following questions ask about the resources commonly used by your agency when conducting an assessment of effects.

• What specific resources, procedures, or policies does your agency have that assist in making findings of No Effect or No Adverse Effect? Can you share these with us?
  • Regarding reevaluating documentation for National Register listed and eligible properties: We recommend that every undertaking look at properties determined “ineligible” to ensure things have not changed or if the property was determined ineligible due to age (less than 45 years old). We also have each undertaking rerecorded a property after 10 years or sooner if significant changes have occurred.
    • Understood policy; 10-year policy may be written down.
    • Currently re-doing policies and procedures to make sure they are written down.
      • Draft document that is red-lined that could possibly share.
    • DOT knows that they need to look at them again if the eligibility is old.
    • New Section 106 System – E-106 for records search at desktop, prepare inventories, submit reports directly to SHPO. Similar to PA, NY, HI

PRACTICES, APPROACHES, AND EXPERIENCES

• In your experience, why are the following elements important in making a well-reasoned and defensible finding of No Effect and No Adverse Effect?
  • Well-defined historic property boundaries

• • • Important especially for transportation project because when we look at residential property if there is landscaping or tree that contribute to overall setting and feeling then we consider that important to include in the boundary.
    • DOT is pretty good about retaining or avoid historic trees.
    • Sometimes that also defines the level of effort for recordation for DOT. If they aren’t going to touch the property at all without any impacts (staying withinHistoric Road prism) then we don’t necessarily make them record that property in the APE.
    • Farmsteads, do you include the acreage with the fields or just the buildings and then include the fields as contributing to the setting? Had it both ways. Important depending on what exactly the project is impacting.
  • Explicit identification of historic property significance and CDFs
    • Those are important especially when you are trying to determine impacts to the resource.
    • Most transportation projects, if effecting the resource, it’s usually demolishing, so calling out the windows may not be important, but if there are contributing elements of historic landscaping or say a drive-in restaurant and there’s no curbs or sidewalks and you just pull of from the road straight into the drive-in, that’s important to the property as it was specifically designed that way.
    • Period of significance (POS) – important because we have a lot of property, specifically the highway department is working on highway evaluation, so determining the POS for those highways is extremely important because they are continually being used.
  • Explicit identification of associated aspects of integrity
    • Important when looking at Criterion A and C.
    • Interesting with Section 106 projects we don’t always get the best work from consultants that blanketly say it retains all aspects of integrity.
      • We don’t always ask for corrections if the property won’t be affected.
      • Become more important if there is going to be an adverse effect to a property.
  • Clear and comprehensive list of project activities and their locations
    • Sometimes we don’t get everything we need from DOT or some of the information is vague. So sometimes ask for the plans to make sure that what the consultant is documenting int eh report is actually what they are doing.
    • You might just miss something that might impact a property if you don’t have all the information.
  • Project plans
    • Plans will show more detail of actually what is done.
  • Other: Consideration of indirect effects (e.g. new interchange = commercial development)
    • It’s evolving, the cultural resources field and how we look at effects to historic properties. For Transportation projects we are doing very large-scale projects that we haven’t done at that scale in a while.
    • Need to really look at indirect effects.
      • Saw … where they added an interchange and within a couple of years all the fields were gone and there was big box store everywhere.
• As defined by ACHP in their 2019 memorandum, indirect effects to a historic property

• are “…those caused by the undertaking that are later in time or farther removed in distance but are still reasonably foreseeable.”
  • Have you dealt with indirect effects in determinations of No Effect or No Adverse Effect following the ACHP’s 2019 memorandum?
  • If so, how?
    • Yes, it’s one of those things that we think we have the consultants and most of the agencies in line with the memorandum.

How did you get people in line?

• • • I think it was incrementally as we did projects and conversations about larger projects.
      • Recently, a windfarm, our visual APE is 20 miles.
    • As projects came in, we would clarify in comments and tell consultants to look at memo.

• Have you dealt with cumulative effects in your review of No Effect or No Adverse Effect determinations?
  • If so, how?
    • For cumulative effects, those are tricky. We have a memo for irrigation resources that if your project require piping (burying the canal) of the open canal and that section within your APE would become a non-contributing segment, that would be an adverse effect. We have that in place because we couldn’t wrap our heads around the cumulative effects around all the canal projects. So, we looked at it holistically and have every project that impacts the canal in that way would be an adverse effect.
    • Roads cause issues with cumulative effects. How do these projects change the road? You could almost apply the same idea as canals to roads.

• What challenges, if any, have you experienced in reviewing direct vs. indirect and cumulative effects?
  • What were the challenges?
    • That most the consultants and agencies do not know how to handle indirect and cumulative effects and still are in the mindset that visual effects are indirect, even though they are not.
  • How were you able to address the challenges? If you were not able to address the challenges why was this the case?
    • Incrementally by making comments on reports and some of the newer people coming into the field have the correct understanding and those in the field longer its harder for them to get out of their ways.

• What challenges have you experienced in reviewing No Effect and No Adverse Effect findings for certain types of transportation projects (e.g., bridge replacements, rural

• capacity projects)?
  • What were the challenges?
    • We always go back and forth on whether a bridge is a contributing feature to a road, and replacement of a historic bridge would be an adverse effect to the road. The transportation department often makes a finding of NHPA, when it should really be a No Adverse Effect finding.
      • A bridge not individually eligible and one that wouldn’t necessarily fall under the PC for pre-1945 bridges.
      • One project to remove a railroad bridge that goes over the highway, would contribute to the railroad.
        • Landed on adverse effect for that project. Couldn’t use railroad anymore and connection would be lost.
        • Discussion to work out the effect; normally we usually end up agreeing.
• What experience have you had with disagreements or disputes on No Effect and No Adverse Effect findings?
  • What was the disagreement or dispute about?
    • Not No Effect or No Adverse Effect
    • For No Adverse Effect to Adverse Effect
      • Two-lane highway with grass median in the middle with two lanes adjacent, so basically four-lane highway with median in the middle; SHPO said Adverse Effect and ACHP disagreed and said No Adverse Effect.

• • What made the road historic?
    • • • I think eligible under A – one of the larger north-south roads in that area.
  • What was the solution to the disagreement or dispute?
  • Was the ACHP contacted to review the disagreement or dispute? If yes, what was the outcome of the ACHP’s review?
    • FHWA district disagreed with SHPO and then went to ACHP.
    • FHWA District didn’t want an Adverse Effect every time they did something similar.
  • Have you put in place any measures to avoid future disagreements or disputes on these effect assessments? If so, what are these measures?
    • No measures put in place.
• What is your experience with reviewing assessments of No Adverse Effect with conditions, following 36 CFR 800.5(b)?
  • Can you please describe by providing a project example?
    • The only ones we sort of condition would be for archaeology with a monitor present during ground disturbing activities.
    • Sometimes the agency wants to condition something, but we say technically no, you need to avoid it.
    • Example: No Adverse Effect as long as you replace windows in-kind, but

• • • they didn’t do that, and you can’t go back and fix the improper application of No Adverse Effect with conditions.
      • So, we try not to condition anything because it may not be followed.
    • SHPO would prefer to change the design to avoid effects rather than place conditions on the design.
  • If you do not concur with findings of No Adverse Effect with conditions, what is the reason for not making such a finding?
    • Told by ACHP to not put conditions.

• Considering some of the challenges of working with private consultants, community groups, and other entities that provide resource identification and effects documentation to your agency, what measures would you suggest for addressing those challenges or what measures have worked or not worked in the past?
  • Boiler plate eligibility statements
  • No integrity evaluation
  • Lack of boundary identifications
  • Lack of understanding of how to apply findings of effect with justification
  • Each of the transportation departments are different and some do their own work and some hire consultants.
    • So, getting DOT to review properly and make sure consultant is doing what they should be.
  • We hardly have any architectural historians in Idaho, so finding qualified architectural historians is difficult. And newer professionals are not getting the education they need to do Section 106. University programming is not sufficient. Not learning it in school.

• In your experience, what are some of the best approaches for establishing and maintaining positive relationships among the transportation agencies and CPs in the context of the no effect and no adverse effect determination process?
  • To start, they should talk to these groups before a finding of adverse effect. The FHWA/DOT does not consult with anyone (other than Tribe) UNTIL they have a finding of ADVERSE EFFECT.
    • Step one they (DOT) should be talking to the public.
    • Normally when they (DOT) get to the public, its already a done deal to say remove the bridge.
    • Until they (DOT) improve involving the public into each of their steps of the process they won’t have many success stories.

NCHRP Project 25-65

PREPARING SUCCESSFUL NO EFFECT AND NO ADVERSE EFFECT
SECTION 106 DETERMINATIONS: A HANDBOOK FOR
TRANSPORTATION CULTURAL RESOURCE PRACTITIONERS

INTERVIEW QUESTIONS

STATE DOT

Date of Interview: June 2, 2023

Text in blue indicates interview responses.

Text in green indicates interviewer’s follow-up or off-script questions.

RESOURCES

The following questions ask about the resources commonly used by your agency when conducting an assessment of effects.

• What specific resources, procedures, or policies does your agency have that assist in making findings of No Effect or No Adverse Effect? Can you share these with us?
  • Internal training that we don’t share.
  • Programmatic Agreement on website, particularly minor project – No Adverse Effect is online in Appendix B (extended in May so good through 2026).
  • What you’re calling a No Effect we call a No Historic Properties Affected.

• Question for DOTs, SHPOs, and FHWA only: Do you have a statewide delegation PA that includes stipulations on making findings of No Effect (in the context of No Historic Properties Affected findings) and No Adverse Effect?
  • If yes, do these stipulations use the same wording (or approximately the same wording) that is in the Section 106 regulations (i.e., 36 CFR 800.4(d)(1) for No Historic Properties Affected and §800.5(b) for No Adverse Effect) or do they simply refer to these two sections of the regulations?
  • Or does your Programmatic Agreement provide for an alternative approach to making these two effects findings that is different than the standard approach in the regulations (e.g., making a finding of No Historic Properties Affected without SHPO consultation)?
    • If it does not go to SHPO then in falls under the minor project stipulations.
    • Look in appendices of annual report to see list of minor projects that did not need SHPO.
    • If list on minor project list on Programmatic Agreement in terms of finding it could be a No Effect or No Adverse Effect – negotiated in 2012 and

• • • SHPO was okay with that.
      • Involves some stipulations like vibration monitoring.
• Question for DOTs, SHPOs, and FHWA only: If you have a statewide delegation Programmatic Agreement that includes stipulations on making findings of No Historic Properties Affected and No Adverse Effect, is the implementation of these stipulations working well?
  • If they are not working well what changes would you like to make to these stipulations, if you could make change?. If they are working well, would you still want to modify the stipulations if you could in order to improve their implementation?
    • Everything is working well.

PRACTICES, APPROACHES, AND EXPERIENCES

• In your experience, why are the following elements important in making a well-reasoned and defensible finding of No Effect and No Adverse Effect?
  • Well-defined historic property boundaries
    • Critical.
    • If I had to pick one, I’d pick boundaries.
    • For vibration, if we are outside of 300 feet we can switch to a No Historic Properties Affected, but ended up changing determination because SHPO wasn’t comfortable and it was because there wasn’t a tight boundary on that property. They were more comfortable with a No Adverse Effect.
    • Burial that we left in the ROW, we did not need for construction, but we were excavating the site right; -large and all stakeholders wanted to leave in place. The limits of the project were basically edge of pavement and we made a conservative No Adverse Effect because we had layered on several stipulations for the contractor.
      • Those project boundaries tend to be where the rubber meets the road in terms of a finding of No Adverse Effect.
      • Technically No Adverse Effect with conditions.
  • Explicit identification of historic property significance and CDFs
    • Critical
  • Explicit identification of associated aspects of integrity
    • Critical
  • Clear and comprehensive list of project activities and their locations
    • Critical
  • Project plans
    • Depending on where we are in the process, plans can rise pretty high in importance. When you have plans you can speak to specific potential impacts.

• As defined by ACHP, indirect effects to a historic property are “…those caused by the undertaking that are later in time or farther removed in distance but are still reasonably foreseeable” (ACHP 2019b).
  • Have you applied indirect effects to your determinations of No Effect or No Adverse Effect following the 2019 memorandum?

• • • Generally speaking, our SHPO is fairly conservative.
    • It’s about what we are communicating to our design team and contractor.
      • Are we going to put some restrictions.
    • For us, I don’t feel like it had a profound effect on our day-to-day business.
    • We apply No Adverse Effect generously.
    • Continue to define indirect as audible, visual, atmospheric.
• Have you applied cumulative effects to your determinations of No Effect or No Adverse Effect?
  • If so, how?
    • Yes. Big one is 4(f) for us.
    • We work really hard to avoid something and it goes unmitigated because we avoided it, but there can be times, where we avoid and then landowner takes something down.
      • Was the loss a direct effect of the transportation facility? No, but after the project we could see that the property wouldn’t be used anymore.
    • Divided highway and interstate interchanges – what does progressing development look like here in 5-10 years?
    • SHPO wants to know about cumulative effects and development in a certain area.
      • DOT will share what they know.
      • It does make the case for a larger APE if we know of future plans.
  • So, your project would have a minimal or no affect, but by adding your project to what’s going on in the area may have a cumulative effect or lead to another finding?
    • Yes

• What challenges, if any, have you experienced in making or reviewing direct vs. indirect and cumulative effects?
  • What were the challenges?
    • Always speculation.
  • How were you able to address the challenges? If you were not able to address the challenges why was this the case?
    • No substitute for having some example experience that you can pull out of your back pocket. Can say this is a similar project.
    • Rock blast projects where there have been concerns about audible or vibration, we try to address them with data. No substitute for data to show potential or No Effects.
    • We’ve been able to argue successfully for direct vs. indirect and cumulative that there are temporary effects based on experience, knowledge and data and similar project types.

• 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)?
  • What were the challenges?
    • Not had much of knock-down drag out of No Effect to No Adverse Effect.
    • Rock-blasting.

• • • Drill-shafts.
    • No Effect corner of state have increased levels of vibration – landowners will feel that in their historic buildings.
    • Has to do with geography as it does with anything else.
    • ADA – for us has not been the issue it has been with other DOTs.
      • Half-dome ADA ramps that others have big arguments, our SHPO says no it’s a safety issue and we want to meet people where they are and allow them to see the resources.
  • How were you able to address the challenges? If you were not able to address the challenges why was this the case?
    • Best to be proactive and get ahead of potential vibration issues.
      • Brick pavers in typical HD. Remnants might be listed in nomination but not contributing because integrity is diminished. But have number of projects where we encounter these and city wants to reuse, that’s not an unusual condition to put on a project. Before any commitment we clearly define whether they are contributing or not.
      • A few historic trolleys with similar issues – the tracks.
        • 12-block trolley route with most raised out. The city suspects there may be some remnants, so in terms of a property the
          significance is there but integrity gone. But that’s not to say that we don’t identify some significance and do some interpretation. Not 106 Adverse Effect but it is a fragment of local history and best for us to make that call ahead of time.
    • So, because you may have partial block with pieces of the rails, because the system is not there it’s not considered eligible?
      • We’ve already made the call on eligibility before project.
      • Technically not 106 but we still work with community to salvage history.

• What challenges have you experienced in making or reviewing No Effect and No Adverse Effect findings for certain categories of historic properties, such as historic bridges, traditional cultural properties, and linear historic properties?
  • What were the challenges?
    • Where we know burials are present.
      • SHPO Tribes are going to want check plans and robust list of questions.
      • We go No Adverse Effect to account for feelings from CPs.
  • How were you able to address the challenges? If you were not able to address the challenges why was this the case?
    • For our stakeholders that know there is a resource, I want them to know what’s going on way before they see that and ask questions. If best to make the determination No Adverse Effect and make sure they are very informed particularly when the pyramid of cultural resources is at its pinnacle – burials.

• Have you had experience applying findings of No Effect or No Adverse Effect to archaeological sites? If you do not have this experience, what is the reason for not having made these types of findings in the context of archaeological sites? If you have had this experience, did you experience any challenges in making or reviewing these findings?
  • What were the challenges?
    • Human remains are on the archaeology side.
    • When part of conversation we elevate to No Adverse Effect typically even if we don’t really have concerns.
      • We may put something in plans for contractor or make a field review.
      • We want to make sure our stakeholders know we care and so that they don’t have to ask.
    • Non-burial sites we tend to shift towards a No Historic Properties Affected. Need to show negative space between site and margins of site. Need good boundary.
  • How were you able to address the challenges? If you were not able to address the challenges why was this the case?
    • Address concern before it becomes an issue.
    • Need good boundaries.

• What experience have you had with disagreements or disputes on No Effect and No Adverse Effect findings?
  • Not seen the value in sacrificing or taking a bruise to our collective relationships (FHWA< SHPO< TRIBES, ETC) over a dispute between a NHPA and a No Adverse Effect.
    • It’s not going to change our ability to issue a clearance or stay on a timeline for project delivery.
    • If we need to put in a plan note or restricted area it doesn’t really affect our timelines.
  • In last ten years no disputes sent to keeper or ACHP.
  • The dispute is what tends to hamper our ability to delivery a project, it’s not a condition or something we would put into a plan.
• What is your experience with making or reviewing assessments of No Adverse Effect with conditions, following 36 CFR 800.5(b)?
  • Can you please describe by providing a project example?
    • Project notes, stipulations documented first in the consultation.
    • Bringing on a new online system (AURGIO-MASTERWORKS) with internal environmental commitment piece of project scheduling software–hoping to go live in July.
      
      
    • Lettings have plan notes.
      • SHPO may ask for check plans.
    • Post review with a monitoring report.
    • Tell them, show them, and follow-up and tell them how (Paper archive).

• Question only for State DOTs and FHWA: Have you had to make findings of No Effect and No Adverse Effect for projects that use alternative approaches to project delivery, such as

• design- build, Construction Manager/General Contractor (CM/GC) or Public Private Partnerships?
  • If yes, did you have to apply these effects finding in ways that were different from applying these findings to a standard design-bid-build approach to project delivery (e.g., different in terms of the timing of these effects findings, the consultation process associated with making these findings)?
    • Our legislature has not allowed DB, we are design-bid-build.
    • Not much room for alternatives.

• Considering some of the challenges of working with private consultants, community groups, and other entities that provide resource identification and effects documentation to your agency, what measures would you suggest for addressing those challenges or what measures have worked or not worked in the past?
  • Proactively caution consultants that determination is responsibility of the agency. Recommendations should not bleed into a determination unless specifically asked for by the agency.
    • Comes back to the APE. When we assign an area for a consultant to work, but projects changes, APEs change and that’s where we can get into hot water with consultants making determinations.
    • Not much of an issue though.
  • Number one challenge that bleeds into relationship with consultants is landowner access. We have very little public property in Iowa, so we have to negotiate often.

• What is your experience with consulting with CPs in making findings of No Effect and No Adverse Effect?
  • What specific successes have you had?
  • What specific challenges have you had?
    • We’ve had few issues over the years.
      • Consultant party leaning on SHPO to elevate to an Adverse Effect and in both cases, there was no new ROW. SHPO was best ally, SHPO pushed back and said they aren’t even taking new ROW all they need to do is avoidance and minimization and taken proactive steps that other undertakings that wouldn’t be federal funded wouldn’t have built into them, such as vibration monitoring.
    • There is no better ally than a SHPO when it comes to a conflict about an adverse effect.
      • Consulting party-SHPO relationship
  • What measures would you suggest for addressing those challenges or what measures have worked or not worked in the past?
    • When we give in the relationship to SHPO and Tribes, they become our strongest allies.

• What successes have you experienced in documenting and communicating No Effect and No Adverse Effect findings to the public?
  • Can you please describe some specific examples of successes and describe why they were successful?

• • • Re-pave reconstruction in small commercial HD.
      • When we put conditions on projects that where the public often times, the avenue for dissemination is through a preservation commission or historical society.
        • Holding up a robust standard of early communication and consultation when we have an undertaking and occurs consistently up to project letting.
        • Use public project management system to communicate these things.
          • Takes care of public facing by addressing questions but it doesn’t substitute for formal Section 106 system.
      • Want to avoid any inadvertent disturbance through project delivery and construction.

• Question for State DOTs only: When one of your projects crosses lands managed by a federal agency, such as the BLM, U.S. Forest Service (USFS), or NPS, how do you handle making findings of No Effect and No Adverse Effect? Does your agency make the effects determination and then obtains concurrence/agreement from the federal agency? Does the federal agency make the determination and then provides you documentation on their determination? Do you follow some other approach in making these findings? Do you have a different process for different federal land- managing agencies?
  • Two park service properties: we try to be very proactive in both.
    • We want them at meetings as a partner.
  • No USFS or BLM.

• Question for State DOTs only: When one of your projects requires a permit from the U.S. Army Corps of Engineers (USACE). how do you handle making findings of No Effect and No Adverse Effect? Does your agency make the effects determination and then obtains concurrence/agreement from the USACE? Does the USACE make the determination and then provides you documentation on their determination? Do you follow some other approach in making these findings? Do you have a different process for different USACE Districts in your state?
  • With USACE permit – USACE district takes DOT consultation and put in their decision particularly with historic bridges.
    • On occasion we will sign MOAs together, but of one is done we don’t reopen it.
  • SHPO very collaborative and ask if DOT is okay with deferring to USACE on occasion.

CONSIDERATION OF EFFECTS DURING PROJECT PLANNING AND EARLY PROJECT DEVELOPMENT (ONLY DIRECTED TO FHWA DIVISION OFFICES AND STATE DOTS)

• Has your agency taken into account potential effects to historic properties during planning, such as during long-range planning, planning efforts with 10- or five-year planning horizons, or projects in your STIPs?
  • We do try to provide some advising to our STIP.

• • • Environmental Geographic Information Systems that planners look at.
    • When we know big corridors are coming in, we have pre-NEPA studies that advise.
    • Done some modeling on bigger corridors.

• If you have, did these efforts improve project planning and in turn subsequent Section 106 reviews of specific projects? If so, how? If they did not, why not?
  • Yes

• If you have considered potential effects to historic properties during planning, does your agency’s historic preservation staff participate in these planning efforts? Or do only your planning and other non-historic preservation staff participate in these efforts? What is behind the decision on who within your agency participates in these planning efforts?
  • Cultural staff gets involved directly.

• If you have considered potential effects to historic properties during planning, did you engage potential Section 106 CPs in these efforts, including SHPOs and Tribes?
  • We’ve had discussions with tribal reps in early consultations.
    • Looking at constraints, red flags, sensitive areas.

• After project initiation, have you worked with transportation engineers, designers and others in order to come up with project designs that avoid or minimize effects to historic properties, resulting in finding of No Effect and No Adverse Effect? If yes, can you describe how and when this was done during project development? Did you encounter any challenges in working with these agency staff in order to avoid or minimize effects, and if so, how did you address these challenges?
  • Yes, extensively. they are very amenable.
    • Pre-lim. all the way through final extensively.
    • Standard operating procedure.
  • Just had a data recovery effort where in the MOA we identified three sites and by final design we kept two to avoid.
    • Applaud efforts of design teams when they delivery.

• Have you had to revisit findings of No Effect and No Adverse Effect as a result of changes in a project (such as a design change or addition of a new project element)? If you have, how did you handle these changes in terms of assessing effects?
  • We have a formal event in our scheduling system for a reevaluation paired with NEPA reevaluation.
  • Sometimes we have to change our determination.
  • Often times it concludes that the previously provided project determination remains valid.

TRIBAL CONSULTATION AND ENGAGEMENT

• Have you had experience applying findings of No Effect or No Adverse Effect to Traditional Cultural Properties?
  • If yes, can you please discuss how you made these findings.
    • Yes,
    • I feel like our Tribes give a lot of grace when it comes to an Adverse Effect.
    • Rarely do we talk abut the need for a transportation system.
    • If we can show narrowly that we employed a design exception or pulled design changes in - they are on board.

• When making findings of No Adverse Effect on archaeological sites of value to Tribes and places of religious and cultural significance to Tribes, what specific types of effects are most commonly considered in the finding—direct effects or indirect effects? Or both equally?
  • Mostly direct when it comes with archaeology. If there is some use of a TCP, we’ve had a little discussion about indirect effects. but most Tribes are gracious with assessment that most will be temporary effects.
  • When it comes to discussion of TCPs, most of that discussion is yes, we all agree this is likely a TCP, did the Tribes want us to designate? If already an archaeological site, usually they don’t request further documentation. They don’t want anymore done than is necessary for us to work it into our process.

• Have Tribes ever raised concerns about reasonably foreseeable or cumulative effects, and, if yes, how did these concerns affect your agency’s decisions about making findings of No Effect or No Adverse Effect?
  • We had a bank stabilization a few years ago with extensive human remains – wasn’t a surprise.
    • We did talk cumulative effects because we were trying to control a river.
    • In project development we talked about what bank stabilization structure type will provide highest level of success – is that bent way rear, repeat tie-in structures or is its full-blown bank armoring with really substantive key structures?
      • Tribes led stakeholder discussion – they want “Cadillac” of stabilization efforts because they didn’t want more work down the line wanted long-term success.
      • Same preferred alternative as DOT.
    • Probably adopted an alternative that had slightly larger effects in the moment but probably the least in terms of cumulative.

• When your agency is making findings of No Effect or No Adverse Effect on archaeological sites of value to Tribes and places of religious and cultural significance to Tribes, has your consultation with the Tribes generally been a positive and constructive experience?
  • If yes, what made it a positive and constructive experience?

• • They can be. Big picture is we focus on the relationship. don’t want individual details of a project to trip us up.

• Does your agency consider tribal expertise in making No Effect and No Adverse Effect determinations involving archaeological sites or places of religious and cultural significance to Tribes? If you do, can you provide some examples of how this is accomplished? If you do not do this, is there a reason why you do not? Are there barriers or challenges to using tribal expertise in making these effects findings?
  • Yes. We see it as a resource unique in and of itself. We may have an archaeology team doing a survey and a Tribe doing their own survey.
  • Favorite when we do a partner survey.
  • Yes, we pay Tribes for that, and we enjoy it.
  • Try to facilitate that to the best of our ability, even Brennan going out into the field with the Tribes.
  • One place we have not gone is to ask a cultural resource consultant to cover the responsibility of the Tribes and we don’t ask the Tribe to share anything they don’t want to share.

• Have you had experiences with disagreements or disputes with Tribes on No Effect or No Adverse Effect findings?
  • No

NCHRP Project 25-65

PREPARING SUCCESSFUL NO EFFECT AND NO ADVERSE EFFECT
SECTION 106 DETERMINATIONS: A HANDBOOK FOR
TRANSPORTATION CULTURAL RESOURCE PRACTITIONERS

INTERVIEW QUESTIONS

STATE DOT AND SHPO

Date of Interview: June 1, 2023

Present on Call:

Text in red indicates previous responses to the online survey.

Text in blue indicates interviewee’s response to online survey.

Text in green indicates interviewer’s follow-up or off-script questions.

Interviewee 1: Uncomfortable with “writing convincing No Effect and No Adverse Effect findings” – don’t like it being framed as how do you convince everybody. It should be how can we be more consistent technically and more guidance on these findings.

Interviewer: Research is about how do you make a supportable argument and discussion based on good information in consultation with all of the parties. Making sure we have the right information to make the right decision and being consistent. Asking what do you need to know and what are the challenges…issue with indirect effects…

RESOURCES

The following questions ask about the resources commonly used by your agency when conducting an assessment of effects.

• What specific resources, procedures, or policies does your agency have that assist in making findings of No Effect or No Adverse Effect? Can you share these with us?
  • Procedures for communicating these findings with SHPOs/THPOs/NHOs and other CPs – may not be able to provide.
    • No document that we can share. In process of updated our “policy manual” that is more accessible and can communicate better with CPs.
    • Letter coordinated project is shared with consulting parties with CPs; PA for in-house determinations for certain classes of historic properties.

• • • Appendix 1 projects go to SHPO in annual report.
    • Higher threshold that goes to CPs quarterly.
  • SHPO Website
    • Don’t really provide guidance on website in terms of making effects findings - that is really more the agency role. Just have general guidance on how to do submittals.

• Do you have a statewide delegation PA that includes stipulations on making findings of No Effect (in the context of No Historic Properties Affected findings) and No Adverse Effect?
  • If yes, do these stipulations use the same wording (or approximately the same wording) that is in the Section 106 regulations (i.e., 36 CFR 800.4(d)(1) for No Historic Properties Affected and §800.5(b) for No Adverse Effect) or do they simply refer to these two sections of the regulations?
    • Anything that doesn’t fit exemptions is per the regulations.
  • Or does your PA provide for an alternative approach to making these two effects findings that is different than the standard approach in the regulations (e.g., making a finding of No Historic Properties Affected without SHPO consultation)?
    • Yes, some categories.

• If you have a statewide delegation PA that includes stipulations on making findings of No Historic Properties Affected and No Adverse Effect, is the implementation of these stipulations working well?
  • If they are not working well what changes would you like to make to these stipulations, if you could make change?. If they are working well, would you still want to modify the stipulations if you could in order to improve their implementation?
    • PA updated in 2019.
    • Interviewee 2: PA generally works; added in local programs that can now be covered internally with DOT being the lead.

PRACTICES, APPROACHES, AND EXPERIENCES

• In your experience, why are the following elements important in making a well-reasoned and defensible finding of No Effect and No Adverse Effect?
  • Well-defined historic property boundaries
    • Interviewee 1: typically use tax parcel boundaries, cause just too complicated to be picky about what is in and what is out. Although still all situational.
  • Explicit identification of historic property significance and CDFs
  • Explicit identification of associated aspects of integrity
  • Clear and comprehensive list of project activities and their locations
    • Interviewee 1: this is probably the most important. When on margin of an effect. The boundary is not the biggest issue at that point because you are probably talking about something indirect, like setting.
    • Interviewee 1: understanding okay this project is going to have this kind of change and need to drill down on that. Exactly where is your limit of disturbance? How high is that thing? What materials are you using?

• • Project plans
    • Interviewee 1: also critical.
    • Interviewee 2: agrees project plans and activities is important to figuring out what the effect would be.
  • Other:
    • Interviewee 2: challenging with older listings are not detailed as we would like, and we need better details on CDFs, integrity, and significance.
    • Interviewee 1: as you go from No Effect closer to No Adverse Effect that is when the CDFs and significance and integrity aspects come more into play. Particularly indirect effects.

• As defined by ACHP, indirect effects to a historic property are “…those caused by the undertaking that are later in time or farther removed in distance but are still reasonably foreseeable” (ACHP 2019b).
  • Have you applied/dealt with indirect effects in determinations of No Effect or No Adverse Effect following the ACHP’s 2019 memorandum?
  • If so, how?
    • FHWA explicitly told us that they do not agree with the ACHP interpretation of that.
    • Interviewee 1: in total gray area and just skate around it just talking about those kinds of effects, setting, feeling, etc. (like old term of indirect, not physical); ACHP interpretation is more cumulative issue.
    • Interviewee 2: For transportation projects we defer to the federal agency interpretation; don’t think it’s been a big issue in this state.

• Have you applied/dealt with cumulative effects to your determinations or in your review of No Effect or No Adverse Effect?
  • If so, how?
    • Interviewee 1: one that was a big struggle on highway project – have a historic cemetery that was adjacent to project; a sliver of the cemetery impacted by original construction of the parkway.
      • We have worked to achieve design avoidance of the property. So, no physical impacts and in terms of the eligibility of the property we are not affecting any CDFs (noise wall, setting will be improved);
      • But, CPs are really hammering the cumulative effects based on past work that has impacted the cemetery and community.
      • So, we really had to look into cumulative effects. The last impacts to that property happened prior to NRHP and NEPA.
      • So how far back to we go in considering cumulative effects?
      • We held pretty strongly that there isn’t really a cumulative effect because the current project is not causing effects and everything that happened earlier didn’t affect the property.
      • Cumulative coming into play with social justice issues.
      • Did a PA and committed to do additional studies. Technically haven’t made a determination but, in PA said there was no cumulative.

• • • • Through consultation language states no effects determination at the time but pending further study we expect a No Adverse Effect.
    • Interviewee 2: a lot of discussion about this resource, because of nature of the project, we weren’t into detail design. There was a level of discomfort that was there that we didn’t want to make a finding in the PA.
    • Interviewee 1: cumulative effects part of litigation regarding project.
    • Interviewee 1: was supposed to be a P3 (Private-Public-Partnership), but with governor change, in that context the developer decided to terminate their agreement. Now it’s back with the state and we are exploring options with how to complete it.

• 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)?
  • What were the challenges?
    • There are many – one is the classic situation of noise barriers that provides an acoustic benefit to the property, screens a non-historic viewshed, but because it is a change to setting, there is dispute over whether the effect is adverse or not adverse.
    • Assessments of effect for transportation notification systems – pole mounted cameras, gantries, etc. on updated existing highways.
      • Interviewee 2: had a PA for a project which involves work within limits of beltway immediately adjacent to historic mansion.
        • When the plans actually came in, it took a while, also challenge with pandemic with virtual work, got to the point where we could concur with a No Adverse Effect.
        • Not sufficient information initially to feel comfortable with the visual effects.
        • It was the viewshed the CP was most concerned about but felt like we worked through it with site visit.
      • Interviewee 1: agreed on language but interpretation by each agency may have been different.
        • Need more detailed NRHP guidance really comes into play.
        • Issue was a close circuit tv camera being installed on highway ROW but adjacent to National Historic Site (NHS) property within its viewshed.
        • From DOT perspective its sort of a normal highway pertinence that is all over the highway and you can see the highway from the NHS. Something we commonly call a No Potential for Effect no matter where it’s located. With all due respect to the agency, they were much more concerned about it than we were, and we felt we were in a position to minimize something that we thought was very clearly a No Effect.
        • Consultation helped clarify each perspective.
        • Getting to a No Effect or No Adverse Effect what is the scale of the change where that is appropriate?

• • • • • • What constitutes an Adverse Effect?
  • How were you able to address the challenges? If you were not able to address the challenges why was this the case?
    • Interviewee 2: Site visit – classic case of every party coming with a different perspective. Where do you draw the line. Agency thought this would open the door for more encroachment.
      • Getting out there enabled, well it was good on all levels because each party met face-to-face. FHWA brought engineer, superintendent, folks came from region.
      • The federal agency came with their own Section 106 perspective.
      • The federal agency could better articulate their concern and as a result DOT went back to engineers and change location to outside of the federal gancey considered core viewshed. So not quite as visible.
    • Interviewee 1: I would agree with that and add that if we had gone to the mat on that, if we weren’t able to do that, we would have needed more information to determine which aspect would be diminished. Where is that documented?
    • Interviewee 2: some of this gets back to the historic property, the use, the ownership – so can’t totally ignore that aspect of current use. That why you have the owners there as a CPs to share their views.
  • Have some types of projects been more challenging than others? If so, why?
    • More complex projects in more complex effect findings.
    • Installation of noise walls that may visually affect historic properties yet are needed for noise abatement.
    • Districts, sidewalks, ADA improvements
      • Interviewee 1: this is one of the reasons why we have a local programs reviewer now – HD sidewalks project. Old system project proponent directly consulting with SHPO and didn’t have good guidance. Now under PA DOT is the lead.
        • Challenging projects because you are really in the thick of things with the streetscape projects.
      • Interviewee 2: it was a big thing for a while, maybe there was just a big push where a bunch of these streetscapes were being done. Challenging with designs, bump outs, landscaping and typically a lot of public input.
        • Can be challenging but if you have good project design information and why the property is eligible and what the CDFs are.
        • Many of our Streetscape projects ended up No Adverse Effect.
    • Interviewee 2: A new project type that has become prevalent is the roundabout issue.
      • Placement in terms of historic properties.
      • Interviewee 1: that and that people hate them.

• What challenges have you experienced in making or reviewing No Effect and No Adverse Effect findings for certain categories of historic properties, such as historic bridges, traditional cultural properties, and linear historic properties?
  • What were the challenges?
    • Interviewee 1: not a particular class; don’t really have any TCPs in the state.
    • Interviewee 2: No, maybe sometimes the issue of eligible railroad lines has come up, but don’t feel like it’s a major problem.
    • Interviewee 1: marginal areas of archaeological sites. Where you have a core of the site where all the good stuff is and a smattering (non-conTributing) part of site where project impacts.
  • How were you able to address the challenges? If you were not able to address the challenges why was this the case?
    • New historic context on state railroads.

• Have you had experience applying or reviewing findings of No Effect or No Adverse Effect to archaeological sites? If you do not have this experience, what is the reason for not having made these types of findings in the context of archaeological sites? If you have had this experience, did you experience any challenges in making or reviewing these findings?
  • No–either you avoid or you go and have an adverse effect?
    • Interviewee 1: takes more data especially on the marginal areas of the site. Is that really part of the site boundary or is it not?
    • No Adverse Effect doesn’t come into play?
      • Interviewee 2: no, I don’t think that’s true. Comes into play with mitigation. Rarely monitoring, but fencing.
      • Interviewee 2: in general, most just get avoided.

• What experience have you had with disagreements or disputes on No Effect and No Adverse Effect findings?
  • What was the disagreement or dispute about?
    • Noise barrier constituting adverse effect.
    • disagreement regarding cumulative effects.
    • SHPO did not agree that a No Adverse Effect for installation of a noise wall immediately adjacent to a NHL property, we consulted with FHWA and ACHP and agreed to disagree.
      • Interviewee 2: we chose not to object with the finding but didn’t want to set precedent to agree.
      • Interviewee 2: in general, we don’t like to say with have disputes with DOT and SHPO. Found ways to creatively work around that.
      • Occasionally we have had ACHP come in.

• What is your experience with making or reviewing assessments of No Adverse Effect with conditions, following 36 CFR 800.5(b)?
  • Can you please describe by providing a project example?
    • Interviewee 1: we have done this, but not a huge fan unless it is a small,

• • • minor condition. Otherwise, I think it should be an agreement.
      • Sometimes we would do a monitoring or courtesy review of plans.
      • Non-controversial conditions.
    • Interviewee 2: the ACHP doesn’t really recognize No Adverse Effect with conditions formally.

• Question only for State DOTs and FHWA: Have you had to make findings of No Effect and No Adverse Effect for projects that use alternative approaches to project delivery, such as design- build, Construction Manager/General Contractor (CM/GC) or Public Private Partnerships?
  • In general these types of projects are not suitable for a project No Potential for Effect or No Adverse Effect finding. We use programmatic agreements. We have disputes on the effects to individual properties in these types of projects.
    • Interviewee 1: There’s probably something that is a little chancy with that project and more appropriate to have a PA.
    • Interviewee 2: we would want a PA because we want to continue to coordinate with the federal agency. We don’t want to deal with a third party.
      • Interviewee 1: we agree with that too.

• Considering some of the challenges of working with private consultants, community groups, and other entities that provide resource identification and effects documentation to your agency, what measures would you suggest for addressing those challenges or what measures have worked or not worked in the past?
  • Our state does quality control on all materials produced by private-sector parties on behalf of DOT and handles the coordination of the submittal with the SHPO directly.
    • Interviewee 1: For example, with our local programs, and even our own projects, we don’t just take what the consultant sends us. We review it and makes sure it has our seal of approval before it goes. local agencies didn’t have the skills to review those reports and quality could be all over the place.

• What is your experience with consulting with CPs in making findings of No Effect and No Adverse Effect?
  • What specific successes have you had?
    • No specific examples
  • What specific challenges have you had?
    • Often the disagreements are not based in the regulations or attentive application of the criteria of adverse effect, but rather the consultation gets clouded by side issues, or opinions that are not grounded in the process.
    • Sometimes CPs don’t really understand the Section 106 process, their role and the focus on historic properties rather than environmental resources.
  • What measures would you suggest for addressing those challenges or what measures have worked or not worked in the past?
    • Interviewee 1: we are doing a little Maryland version of the citizen’s guide that tries to explain roles of CPs.

• • • • Education.
      • Trying to get folks to understand but not in an overwhelming way.
      • We are working in a regulatory framework not just what your feeling is.
    • Interviewee 2: rolling out a number of virtual road shows which are recorded presentation son the website. Did one for Section 106 for CPs.
      • For more complex projects, meetings with explanation of section 106 process.
      • Commercial version rolled out this May. Longer program coming out in the coming years – on all different aspects of our SHPO programs.

• Question for State DOTs only: When one of your projects requires a permit from the U.S. Army Corps of Engineers (USACE). how do you handle making findings of No Effect and No Adverse Effect? Does your agency make the effects determination and then obtains concurrence/agreement from the USACE? Does the USACE make the determination and then provides you documentation on their determination? Do you follow some other approach in making these findings? Do you have a different process for different USACE Districts in your state?
  • Interviewee 1: State funded USACE projects feel perpetually unresolved.
    • Interviewee 2: with USACE permits, USACE is lead agency.
    • Interviewee 2: USACE defers to FHWA as lead for DOT projects with Section 106.

CONSIDERATION OF EFFECTS DURING PROJECT PLANNING AND EARLY PROJECT DEVELOPMENT (ONLY DIRECTED TO FHWA DIVISION OFFICES AND STATE DOTS)

• Has your agency taken into account potential effects to historic properties during planning, such as during long-range planning, planning efforts with 10- or five-year planning horizons, or projects in your STIPs?
  • Pre-screen in early planning stages. Internal assessment of potential screening process when a project is identified.
    • Interviewee 1: don’t get involved that early – really not until at least an inkling of a project

TRIBAL CONSULTATION AND ENGAGEMENT

Interviewee 1: we get really little Tribal concern, even archaeology, unless we have human remains issue or larger precontact. No land-holding Tribes in Maryland. Some active state recognized (non-federally recognized). Happily talking to them on a monthly basis.

CASE STUDY INTERVIEW QUESTIONS

Beltway Project

Did you end up with an agreement document?

• Interviewee 1: there was an existing PA and intended to be our template for how we handle large DB project – in that it covers a large area of the beltway. And what they are doing with the project is making capacity improvements by converting shoulders for part time use. Installing gantries, minimal traffic control devices – to add capacity on existing pavement.
  • Normally you would need to survey everything along the route. So we said here are the key known properties and the kind of activities that would be proposed. And we agreed that for the vast majority that if they are working within the existing pavement there is no potential for that to diminish a historic property for certain types of additions.
  • Really narrowed down to the mansion issue. Put in language for provision that we would let the NHS know when we had a design to show that it is consistent with the exempt activities. But federal agency and DOT interpreted it as no this is a special area.
  • Lesson learned is to make language more clear on intentions.
• Do you have documentation of these?
  • Interviewee 1: has letters for consultation; Categorical Exlusion for NEPA document; PA.
  • Avoided dispute resolution.
• Have to take into account the views of all the parties and you have to work it out.
• Interviewee 1: Also speaks to the need on more detailed guidance. Like when does encroachment on an already altered setting become an adverse effect.
  • Guidance from NPS Bulletin issue.
• Interviewee 2: Good neighbor part is important because it just gets back to keeping good relationships with the people that you will be working with. Beneficial to everyone.

NCHRP Project 25-65

PREPARING SUCCESSFUL NO EFFECT AND NO ADVERSE EFFECT
SECTION 106 DETERMINATIONS: A HANDBOOK FOR
TRANSPORTATION CULTURAL RESOURCE PRACTITIONERS

INTERVIEW QUESTIONNAIRE FOR NATIONAL ASSOCIATION OF TRIBAL HISTORIC PRESERVATION OFFICERS

NATHPO

DATE OF INTERVIEW: JUNE 13, 2023

Text in blue indicates interviewee’s response to online survey.

Text in green indicates interviewer’s follow-up or off-script questions.

• Have members of your organization discussed with you or raised issues about the challenges they have encountered for any of the following in relation to making findings of No Effect and No Adverse Effect under the Section 106 process, in the context of FHWA and/or State Departments of Transportation (state DOTs) projects?
  
  NATHPO’s advocacy is at a broader level, to increase funding, changes to regulation, etc. – no specific tribe or project has come to mind in regard to these specific challenges, but these issues are raised at annual conferences.
  
  Common challenge NATHPO hears about is a lack of thorough and consistent consultation; Tribes not getting ample notification that they need; for instance, Tribes in one state have ancestral lands in other states and they are either not getting notice or are not getting notice in a timely manner. Another issue is the lead agency has done the assessment and made a determination, or assumption, before they even consult with a Tribe.
  
  Is there one kind of property that has more challenges than another?
  
  No, all of the above types of properties have faced challenges. One project gone awry in which ancestral burials were disturbed. Worst thing that can happen is the disturbance of an ancestor. But intangible effects are most common, like putting a highway through a sacred space, which diminishes the sacred feeling or association. It’s easier to point to physical sites, like archaeology sites, than intangible spaces. Intangible associations or value is not being taken into account on effect findings. But the worst is when there’s disturbance of a known sacred site and ancestor remains/burials.

• • Effects of these projects on archaeological sites.
  • Effects of these projects on places of religious and cultural significance to Tribes.
  • Effects on other types of places on the land of value to Tribes.
• If yes, what were the challenges, and how did your members address these challenges? If they were not able to address the challenges why was this the case?
  
  Tribes go to the agencies after the fact, mitigating alterations already made; ideally the process would be pre-emptive and address issues in advance, before they even arise, rather than go into the emergency mode after the fact.

• Have members of your organization discussed with you or raised issues about these agencies using or not using tribal expertise in making these findings of effects for transportation projects? What issues did your members raise and discuss with you?
  
  Sometimes agencies are creating these challenges and sometimes not; Tribal expertise is asked for as part of the process but not actually deployed in the project as it moves forward. Tribes provide the Section 106 consultation as required by law, but their input doesn’t always have an effect on or is integrated in project design to mitigate effects.
  
  Explanations from agencies as to why projects were undertaken contrary to or without Tribal input are “overriding considerations,” “this is for the public good,” or emergency situations. Especially infrastructure projects related to the highways, like the current installation of electric vehicle infrastructure that is being fast-tracked.

• Have your members discussed with you or raised issues about disagreements or disputes they have experienced when consulting with FHWA or state DOTS on No Effect and No Adverse Effect findings?
  • What was the disagreement or dispute about?
  • What was the solution to the disagreement or dispute?
  • Was the Advisory Council brought in to review the disagreement or dispute? If yes, what was the outcome of the Advisory Council’s review?
  
  I don’t know about “No Adverse Effects” specifically.
• Are there any other issues associated with these two types of effects findings that you would like to discuss?
  Findings of No Effect are pretty easy and don’t cause too much controversy, but there are some egregious examples. No Adverse Effect is where problems arise between agencies and Tribes, where disputes come up, especially when the tribe asks for redesign for avoidance – redesign for avoidance is the ideal, but it’s hard to get. Agencies complain they’ve already spent too much money in the design process to undertake redesign so late in design process, but that wouldn’t be an issue if consultation happened from the very start. Some states has legislation that promotes earlier consultation, for state projects, not at the federal level.

NCHRP Project 25-65

PREPARING SUCCESSFUL NO EFFECT AND NO ADVERSE EFFECT SECTION 106 DETERMINATIONS: A HANDBOOK FOR TRANSPORTATION CULTURAL RESOURCE PRACTITIONERS

INTERVIEW QUESTIONS

STATE DOT AND SHPO

Date of Interview: June 9, 2023

Text in red indicates previous responses to the online survey.

Text in blue indicates interview responses.

Text in green indicates interviewer’s follow-up or off-script questions.

RESOURCES

The following questions ask about the resources commonly used by your agency when conducting an assessment of effects.

• What specific resources, procedures, or policies does your agency have that assist in making findings of No Effect or No Adverse Effect? Can you share these with us?
  • Certain state-specific forms are used to document and share findings, however guidance materials generally refer to existing NPS or ACHP material.
    • Interviewee 1: state does have a pretty unique situation in that the SHPO and DOT have had decades of working really closely together – monthly project meetings that are standard (virtually – used to be in person). – that type of consultation does color all of our processes in a good way.
      • When we started a decade ago, there weren’t really forms – could find some content on effects in meeting minutes.
    • Interviewee 1: Last 10 years have been working on documenting findings in a more thoughtful way.
      • At the beginning of a project, aside from project initiation; Identification uses survey forms using SHPO forms.
      • Effects findings come about during project meetings, but we have been implementing effect tables and a submission or package that goes with it – bringing it in to more projects more and more.
        • The tables use criteria and the regs and the back up information that supports those findings in those tables.
        • Coming out of those tables is an effect memo.
        • No Determination of Effect (DOE) reports, it’s really just a 1 to

• • • • • 2-page memo – really pares down specifically what is going on, what the finding is, and what the justification is. – memo is what gets signed by the various agencies.
    • Interviewee 2: SHPO gets forms from DOT (SHPO sign-off sheets) – background research.
      • Form for archaeology and the effects.
      • It’s a review request in the title – we were using very long form for archaeology.
        • So started using the effect review sheets for built environment for Interviewee 1 to sign.
      • Interviewee 3: we find them super helpful.
    • Interviewee 2: archaeological reports from DOT also get a concurrence form with all of DOT archaeology thoughts and specific information about the report.
    • Interviewee 2: a lot of the communication between SHPO and DOT is informal.
    • Interviewee 1: Effect memo template on DOT site.
    • Effect tables - example – consistency.
    • More complex projects are more likely to have a consultant on board – so they may be filling out the tables.
    • Interviewee 1: No Effect or No Adverse Effect projects more often do not have a consultant – sometimes even engineers or environmental consultants fill them out.
      • Framework to think in terms of cultural resources.
      • The more we use the effect table submission in particular and then work on filling out the effect memo to its fullest intent, the better those thought processes are no matter who is filling them out.

• Question for DOTs, SHPOs, and FHWA only: Do you have a statewide delegation PA that includes stipulations on making findings of No Effect (in the context of No Historic Properties Affected findings) and No Adverse Effect?
  • If yes, do these stipulations use the same wording (or approximately the same wording) that is in the Section 106 regulations (i.e., 36 CFR 800.4(d)(1) for No Historic Properties Affected and §800.5(b) for No Adverse Effect) or do they simply refer to these two sections of the regulations?
    • Yes.
  • Or does your PA provide for an alternative approach to making these two effects findings that is different than the standard approach in the regulations (e.g., making a finding of No Historic Properties Affected without SHPO consultation)?
    • Interviewee 3: whole gamut up to Adverse Effect. We have minor activities that SHPO doesn’t look at -screened in-house with a form.
      • For projects outside the screened activities but with No Adverse Effect – goes through Section 106 but not FHWA.
    • Interviewee 1: our earlier PA was 2014, that one was focused on minor projects. Our new one in 2018, that was when it was expanded for formal delegation of FHWA to DOT and that’s when those other type of effect projects came into the PA.

• Question for DOTs, SHPOs, and FHWA only: If you have a statewide delegation PA that includes stipulations on making findings of No Historic Properties Affected and No Adverse Effect, is the implementation of these stipulations working well?
  • If they are not working well what changes would you like to make to these stipulations, if you could make change? If they are working well, would you still want to modify the stipulations if you could in order to improve their implementation?
    • Interviewee 3: just had our PA review meeting with FHWA – there aren’t many changes to the process for screened activities just to continue review with SHPO.
    • Interviewee 3: I think the PA is going well. For the most part the activities in the screened projects work pretty well.
    • Interviewee 1: PA’s have been really good. We are constantly looking at what can be tweaked or added. Talked about, outside the PA, to have a day where we can look at a bunch of projects with FHWA, DOT, and SHPO and just talk about how some projects went.

PRACTICES, APPROACHES, AND EXPERIENCES

• In your experience, why are the following elements important in making a well-reasoned and defensible finding of No Effect and No Adverse Effect?
  • Well-defined historic property boundaries
  • Explicit identification of historic property significance and CDFs
  • Explicit identification of associated aspects of integrity
  • Clear and comprehensive list of project activities and their locations
  • Project plans
  • Other: CDFs may not be necessary, but identification of contributing and non-contributing features may be critical. For example, CDFs might be important for a bridge rehab project but overkill for another type of project’s impacts.
    • Interviewee 1: We don’t really do CDF reports too often within the process of Section 106 and effect findings. Might use them for an easement baseline situation. Bridge projects we would do CDFs – for true rehabilitation.
    • Interviewee 1: more important to determine what is contributing and non-contributing, such as this landscape feature, this building…, rather than specific CDFs.
  • At times, thinking broader than hard data is important. For example, a property only eligible for architecture can still result in effects or even adverse effects with adjacent changes, even if no physical impacts are proposed.
  • Interviewee 1: effect memo stage – challenge is lack of connection of effect to the actual resource.
  • Interviewee 3: when we do have issues putting all this together – it’s the majority of local projects.
    • When we get to effect memo stage, we have a harder time getting information from municipality managed projects. It’s easy to walk upstairs and ask engineers what’s going on with a project.
    • Try to use effect memo’s as a standalone – so really need all the information.
  • Interviewee 3: for one project, on the DOT end (DOT in-house project we were designing), there was a lot of back and forth on the adjacent cemeteries. One consulting party (CP) that was great to work with who gave information that we didn’t know.
    • One known cemetery and then some unmarked graves which the CP alerted DOT

• • • to. DOT and SHPO archaeologist actually went out to delineate it accurately. Identified even more graves than just the four the CP identified. Ended up being far outside the APE.
• As defined by ACHP, indirect effects to a historic property are “…those caused by the undertaking that are later in time or farther removed in distance but are still reasonably foreseeable” (ACHP 2019b).
  • Have you applied/dealt with indirect effects in determinations of No Effect or No Adverse Effect following the ACHP’s 2019 memorandum?
    • Using both former and these (current) definitions of direct/indirect.
      • Interviewee 1: Over time in the previous definitions, we have certainly looked at visual, atmospheric, vibrations, but with the new definitions, probably not as often, but I see sometimes the thought process of what can this project be doing to the area that might have an impact in the future.
  • If so, how?
    • Interviewee 1: we have a lot of trail projects – we have incorporated into the conversation – would the improvement of this trail and having that many more people coming through, would that impact how the property owners are using their yards, privacy issues, trespassing issues. It about trying to get into the heads of the community and the property owners that are there.
    • Interviewee 1: potential future development because of new transportation development in the area.

• What challenges, if any, have you experienced in making or reviewing direct vs. indirect and cumulative effects?
  • What were the challenges?
    • Ensuring the engineers and public understand the difference. Extremely far-removed visual effects. Past effects and how they play into current undertakings.
    • It’s harder to engage other agencies/project team members to thoroughly evaluate non-physical, reasonably foreseeable, and cumulative effects. Public input tends to recognize the potential for these more readily.
      • Interviewee 1: human nature for community members to think about the future effects because they will actually be dealing with it. Engineers are much mor focused on just what the project is.

• 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)?
  • What were the challenges?
    • Review within HDs. Cultural landscapes.
      • Interviewee 3: cultural landscapes and working with effects to them is fairly new to the state and how a bridge removal works in a cultural landscape when it is a very large resource. These ones are hard for engineers to understand.
        • Need to put things in “preservation talk”.
      • Interviewee 3: the size of the district versus what the impacts are is

• • • • usually a larger discussion.
    • There’s been discussion over the years over what constitutes No Adverse Effects when dealing with full replacement of non-track historic railroad infrastructure. Thus far we’ve leaned towards adverse effect findings.
      • Interviewee 1: large resource and removing a contributing part of it and so it’s that conversation of what’s little enough to be a No Adverse Effect versus what are you removing that’s contributing to that larger resource? – and how it impacts the integrity of the resource as a whole versus the segment begin worked on.
  • How were you able to address the challenges? If you were not able to address the challenges why was this the case?
    • Interviewee 3: there has not been a programmatic approach to it. It’s just building on what we have and continuing conversations.

• What challenges have you experienced in making or reviewing No Effect and No Adverse Effect findings for certain categories of historic properties, such as historic bridges, traditional cultural properties, and linear historic properties?
  • Archaeological sites
    • What were the challenges?
      • Interviewee 2: sites, just by their nature, they are not on the forefront of project design people’s minds. They tend to be overlooked. I think personally, it’s more in the mitigation end of things. It’s hard for engineers and the public to wrap their heads around a resource they can’t see.
      • Interviewee 2: hard to prepare public interpretation of sites. Without the work begin done, no one would know there was anything there to begin with.

TRIBAL CONSULTATION AND ENGAGEMENT

Interviewee 3: We don’t have any federally recognized Tribes in the state, but some in adjacent states. We have state recognized in state.

Difficult working relationship right now. Trying to treat state Tribes equally with federal recognized is not easy when they aren’t back by federal programs.

Interviewee 2: challenge is providing information on projects but also maintaining the idea that communication between the Tribes is really the federal agency responsibility, not the SHPO.

Interviewee 2: we have to remind people, a little nudge, to reach out to the Tribes. It’s not our responsibility but we do want to maintain good relationships and give Tribes the opportunity to comment on projects.

Interviewee 3: tribal consultation was a common topic at recent AASHTO meeting. The state is seeing the challenges and are a bit slow to figuring it out.

• Have you had experience applying/dealing with findings of No Effect or No Adverse Effect to Traditional Cultural Places (CPs)?
  • If yes, can you please discuss how you made these findings.

• • If not, why is this the case?
    • No, but we might have one coming up, but I think that will be on the Vermont side.
    • Interviewee 3: The Tribes may not come forward to say there is a TCP.

• Have you had experiences with disagreements or disputes with Tribes on No Effect or No Adverse Effect findings?
  • If “Yes,” what was the nature of any disagreement or dispute?
  • If “Yes,” how was the disagreement or dispute resolved?
  • Can’t think of any

CASE STUDY INTERVIEW QUESTIONS

Widening and improvements (adjacent to historic farmstead)

Farmstead was only resource where there were potential impacts.

• Can you walk us through the steps taken to reach a determination of No Effect or No Adverse Effect for this project?
  • At what stage of the project was consultation initiated on effects and why at that stage? Did this initial effort involve formal or informal consultation on effects? At what stage of project design was consultation on effects begun?
    • After it was funded – our SHPO doesn’t really see anything that isn’t funded. We have a 10-year plan that lays out all funding.
    • Initiated consultation in 2016 fairly early in the process.
    • First came as an RPR in November of 2016 to SHPO.
    • SHPO had seen it before (unique) because it was initially a larger corridor that ended up getting broken up into smaller pieces.
      • Larger project that got shelved and the reactivated.
      • Had to reevaluate previous surveys, etc.
      • Original inventory happened back in 2001.
    • Interviewee 1: in 2001 they did a project area form-planning document for larger area, types of resources, what might need survey.
      • Had inventoried properties based on this form.
      • Don’t know if they had gotten to effects on earlier project.
    • When project picked up again, we received request for project review with new project number, we had recommended an update.
      • DOT updated the project area form for a certain number, new forms were done and that took care of identification step for the current project.
  • If the consideration of effects did not begin during early planning stages, when was it done and why then?
    • We did get through the effects finding stage.

• • How and when were non-cultural resource staff (e.g., project managers, project designers, NEPA staff) included in the decision-making process associated with findings of No Effect or No Adverse Effect effects? Is the involvement of these non-cultural resource staff in accordance with existing agency procedures, manuals, or policies?
    • Interviewee 3: this project had a great design team. Engineers are really involved. Project manager spent a lot of time in the corridor.
    • Because it was such an older project to start with, with had to communicate with the town quite a bit (although outside of 106).
    • NEPA environmental manager – try to keep them involved with 106 so they know where we are at. Can communicate with them on how schedules are being managed.
    • Try to keep design staff well-involved about where the actual impacts might be – they can offer some input.

• No Adverse Effect finding
  • Interviewee 3: can send the effect memo.
  • Impacts limited, viewshed wouldn’t change – even with tree removal.
    • 400 feet of impacts.
    • Stone walls – state stone wall policy if impacting stone walls. – feasibility rating, rating system for reconstruction.
      • Adhered to the stone wall policy.
      • Stone wall policy from SHPO perspective: definitely look at that, but the policy is still kind of focused on feasibility and character of the stone wall, not so much as does it exist or not, was it a design built stone wall, even if condition isn’t great. We balance things – if nothing really there or not a lot of effort to build the wall, we look at it from the perspective of if it contributes to the resource. So even if it doesn’t meet policy ratings but it contributes to the property, then there is a challenge.
        • It does help and most often matches up with historic evaluations.
        • Recognizes that stone walls are critical to state’s landscape.
  • Also, a cemetery nearby – conditions for monitoring in vicinity of burial.
    • Some excavation may be necessary within 27 feet of site.
    • State archaeologist looking at any burial within 25 feet.
  • Interviewee 1: effect review tables.
    • Memo is comprehensive.
    • Conversations had during meetings on project got summarized into the memo.

NCHRP Project 25-65

PREPARING SUCCESSFUL NO EFFECT AND NO ADVERSE EFFECT
SECTION 106 DETERMINATIONS: A HANDBOOK FOR
TRANSPORTATION CULTURAL RESOURCE PRACTITIONERS

INTERVIEW QUESTIONNAIRE FOR NATIONAL PARK SERVICE

FEDERAL AGENCY: NPS

Date of Interview: June 7, 2023

Text in blue indicates interview responses.

Text in green indicates interviewer’s follow-up or off-script questions.

There is a nexus for our park roads, there is overlap with FHWA.

• Has the NPS encountered any challenges in relation to making findings of No Effect and No Adverse Effect under the Section 106 process for any of the following types of resources?
  • Effects on archaeological sites
  • Effects on properties of religious and cultural significance
    • Standard review always applies to Tribes and NHOs.
  • Effects on historic bridges
  • Effects on historic districts/NHLs
  • Effects on linear historic resources such as historic roads or irrigation systems

• My role at NPS is with our park programs which is different from our external program facing side of the house. So, everything you here from me, it won’t be looking through the lens of say what our National Register programs look at.
  • Mainly about what our parks experience.
• We generally don’t have too many challenges at the No Effect and No Adverse Effect level. At least I don’t hear about a disagreement where a park made a No Adverse Effect and the SHPO or Consulting Party (CP) disputed that. I don’t really hear much about those.
• May have come across our nationwide PA with the NCSHPO and ACHP – streamlined review process with requirement that the project not have anything greater than a No Adverse Effect. It also applies primarily, or really to our maintenance activities – minor repair work. But if the park is proposing a major building rehabilitation with robust changes, then that

• would not qualify for streamline review even if you are meeting the SOI standards.
  • Streamline process if pretty novel among federal agencies – I don’t know if many other feds have the same process.
  • Still have to do our tribal consultation all the same with consultation. o Have to have identification and evaluation done before undertaking in order to use streamlined review.
  • Has to qualify for one of the 16 listed activities (building, landscape, trails, and roads are addressed in streamlined review).
    • If activity goes outside of this list, then it would kick into standard review.
• Not many problems with No Adverse Effect projects other than that we continue to have a No Adverse Effect.
  • Sometimes there could be slight changes that change the effect. Or make it no longer qualify for streamline review.
• Most of our challenges are at the Adverse Effect level, typically with disagreements with tribes.
  • We try to avoid impacts to resources of tribal significance.
• With SHPO as long as we meet the spirit of Section 106, they tend not to disagree. But if they are aware of a local organization with a dispute, they will potentially challenge the review process.
• We are pretty good at avoiding adverse effects.

• Has the NPS had any disagreements or disputes when consulting with SHPOs or other CPs on No Effect and No Adverse Effect findings?
  • What were the disagreements or disputes about?
    • Most on the No Adverse Effect findings than No Effect.
    • At Federal Aviation Administration (FAA) and NPS have been doing environmental review on air corps management plans (Small fixed-wing aircraft and helicopters that take tourists to fly over parks and national monuments).
      • Situation with great smokey mountains, park agreed with FAA for No Adverse Effect and SHPO really disagreed.
      • Allowing FAA to be lead agency on air corps management plans.
      • Couldn’t come to an agreement with SHPO.
      • FAA went to ACHP and ACHP supported No Adverse Effect.
    • One park across from a historic scenic river – we were going to replace asphalt shingle roofs on Civilian Conservation Corps (CCC) buildings with a new product that resembles wood shakes (like original), but its composition type material and it weathers and over time takes on the visual qualities of real wood.
      • Spoke with technical preservation services and SHPO strenuously disputed that.
        • SHPO argued the asphalt shingles were within the POS and considered them historic.
        • New manufactured product from their point of view it wasn’t a historic material.
  • What were the solutions to the disagreements or disputes?
    • Decided to let SHPO have the Adverse Effect and went with an approach for mitigation.

• • • • Instead of a rehab, did a restoration to CCC era.
      • Wayside exhibit.
      • Long-term preservation it was a win.
  • Was the Advisory Council brought in to review the disagreements or disputes? If yes, what were the outcomes of the Advisory Council’s review?
    • No

• What is your experience with findings of No Adverse Effect with conditions, following 36 CFR 800.5(b)?
  • Can you please describe by providing a project example?
    • Hear a lot about this outside of the NPS, but not so much within parks.
    • I think our database does collect information on Conditional No Adverse Effect.
    • I tend to be a little cautious. You want to make sure the conditions don’t get strung out so far like a whole line of dominos.
      • If you’re saying we are going to do all of these things to have a No Adverse Effect, you’re probably going to wind up with an adverse even though it’s not documented.
    • Changes to projects can happen suddenly or not even until a contractor is lined up and the main thing is for us to be flexible to where we can adjust accordingly.
    • If project changes from a No Adverse Effect to an Adverse Effect, and you are ready to go with construction, that will have a big impact on the project schedule.
    • If No Adverse Effect with streamline process, if it goes to Adverse Effect then you have to do the whole process with consultation with SHPO.
  • If you do not recommend findings of No Adverse Effect with conditions, what is the reason for not making such a recommendation?
    • Usually say no to conditional No Adverse Effect when in a streamlined process with the PA.

• From your national perspective, are there any other issues or challenges you would like to discuss that the NPS is experiencing around the country?
  • One of the biggest challenges relates to the implementation of the streamlined review process.
    • Identification and evaluation work has to be completed already and has to be a listed activity.
    • Some parks would like to do more with streamlined review, but their projects don’t qualify.
    • With all our deferred maintenance there are a lot of buildings way past the maintenance level. They need substantive repair work and no longer qualifies as maintenance work and no longer passes as streamlined review.
  • Really close to a PC for Mission 66.
    • Would provide a streamline approach to those substantive projects that don’t qualify as maintenance under the PA.
    • It could be projects that include adverse effects with a programmatic way of mitigating.
      • Need to reconfigure rooms to include additional bathrooms which are not always acceptable under SOI Standards.

• • • To meet Accessibility laws might mean sacrificing some spaces and could be an adverse effect.
    • Mitigation might be some kind of recordation, but probably not to the level of HABS and then an agreement on how many times you would have to do that.
  • It doesn’t happen very often, but every now and then it becomes obvious that we don’t agree with transportation planners project plans.
    • Challenging if project comes outside existing roadway.
  • Experience occasionally external threats in transportation projects.
    • Proposed toll lanes.
    • Hired a contractor, proposed two fly over ramps that weren’t part of the original design and FHWA said No Adverse Effect initially and then weren’t going to tell NPS when they added the flyovers.
      • We strongly thought an Adverse Effect.
      • When it came time to resolve the Adverse Effect, FHWA took DOT’s lead and didn’t let NPS on as an invited signatory even though NPS was doing landscaping mitigation.
      • Went to ACHP and cited regulations that if fed is doing work, they need to be an invited signatory.
        • FHWA said regulations say they “SHOULD” be not they “MUST” be.
        • ACHP said “OK.”
  • Database for conditional No Adverse Effect is internal.

NCHRP Project 25-65

PREPARING SUCCESSFUL NO EFFECT AND NO ADVERSE EFFECT
SECTION 106 DETERMINATIONS: A HANDBOOK FOR
TRANSPORTATION CULTURAL RESOURCE PRACTITIONERS

INTERVIEW QUESTIONS

STATE DOT

Date of Interview: June 14, 2023

Text in red indicates previous responses to the online survey.

Text in blue indicates interviewee’s responses.

Text in green indicates interviewer’s follow-up, non-scripted questions.

RESOURCES

The following questions ask about the resources commonly used by your agency when conducting an assessment of effects.

PRACTICES, APPROACHES, AND EXPERIENCES

• In your experience, why are the following elements important in making a well-reasoned and defensible finding of No Effect and No Adverse Effect?
  • Well-defined historic property boundaries
  • Explicit identification of historic property significance and CDFs
  • Explicit identification of associated aspects of integrity
  • Clear and comprehensive list of project activities and their locations
  • Project plans
  • Other

Those are all important, I can’t pick one as more important over another. We try to evaluate all of those when making an effects determination.

Interviewer: Do you have written guidance that you provide to your consultants?

In my experience, in projects I’ve dealt with, our consultants don’t make effects determinations. I do it mostly myself; our consultants typically just identify the historic properties; we do the effects

determination/assessment of effects in-house. Our guidance for consultants is on conducting surveys and identifying historic properties.

Interviewer: has FHWA delegated Section 106 to your DOT?

Yes, FHWA is only been involved when we make adverse effects assessments.

Interviewer: For your consultants, when you engage them, at the level of identifying historic properties, do you put guidance in the specific SOW per project basis?

No, that sort of guidance wouldn’t be in there [SOW per project]. Our guidance for consultants is on conducting surveys and identifying historic properties.

• As defined by ACHP, indirect effects to a historic property are “…those caused by the undertaking that are later in time or farther removed in distance but are still reasonably foreseeable” (ACHP 2019b).
  • Have you applied indirect effects to your determinations of No Effect or No Adverse Effect?
  • If so, how?

In as far as when we have a historic property and assessing effects, we’ve tried to use that language, but as far as looking at our APEs and trying to determine the limits of consequent effects, farther removed in time, we haven’t been expanding our APE to take that (indirect effects later in time) into account. The APE is still the limits of project construction. I’ve dealt with relatively few projects that have the potential to introduce this definition of future foreseeable indirect effects -- sidewalk projects, adding shoulders, etc. (small-scale projects).

• Have you applied cumulative effects to your determinations of No Effect or No Adverse Effect?
  • If so, how?

We do use the language of cumulative effects – our SHPO does if they determine adverse effects; but they’re talking about the accumulation of previous projects, not the multiple parts of a single proposed project.

Interviewer: is that something you see from SHPO frequently, the adverse effect determination being based on a cumulative effects?

Not frequently, but a few times. I can only speak to it two or three times and I have been here about 20 years.

Interviewer: do you have a particular example of that that you can expand on?

The one I’m thinking of most recently is a project in a downtown HD. Within the district at some point, a road was closed and turned into a pedestrian mall; we had a DOT project to emphasize the pedestrian nature (adding bollards and building sidewalks); SHPO determined closing the road was detrimental in the first place and further emphasizing that by placing bollards and building sidewalks was an adverse effect.

Interviewer: for projects where the SHPO has pushed back, in their opinion the project will have an adverse effect, has there ever been a disagreement where you have elevated it to the ACHP? And do you have an example?

There have been a few projects that we elevated to the ACHP. Both of the case studies provided went to the ACHP.

• What challenges, if any, have you experienced in making or reviewing direct vs. indirect and cumulative effects?
  • What were the challenges?
    • Not a good understanding of their definitions
  • How were you able to address the challenges? If you were not able to address the challenges why was this the case?

Maybe I meant more a disagreement on their definitions and different understandings (of direct vs. indirect cumulative effects), between my agency and the SHPO. I can’t really speak to other people’s (in DOT) understanding of these definitions beyond the Cultural Resources program, because I’m not sure how much they are involved in making these decisions.

• 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)?
  • What were the challenges?
    • Not a good understanding of their definitions
  • How were you able to address the challenges? If you were not able to address the challenges why was this the case?
  • Have some types of projects been more challenging than others? If so, why?
    • Projects with NRHP-listed and eligible resources

Yes, here I meant that the understandings are different between my agency and the SHPO. Yes, projects with resources that are NRHP-listed are the most problematic. You’re not really assessing effects with projects that don’t abut or have historic properties.

Interviewer: do you have types of projects that tend to fall under No Potential to Effect in general?

Generally, we argue that resurfacing projects within existing pavement lines and some projects in existing ROWs in rural areas, not in a town, are those that have no effect. Sometimes sidewalk projects have no potential to effect historic properties, but that is usually only in areas where there are no historic properties or likelihood of no historic properties.

Interviewer: Does FHWA have an overarching programmatic agreement (P)A with your SHPO for exclusion projects?

No, FHWA has no PA on excluded properties. They are working on that now (work in progress).

• What is your experience with making or reviewing assessments of No Adverse Effect with conditions, following 36 CFR 800.5(b)?
  • Can you please describe by providing a project example?
  • If you do not make findings of No Adverse Effect with conditions, what is the reason for not making such a finding?

Yes, there is some back and forth [between DOT and SHPO]. Usually, if we argue a project has No Adverse Effect, sometimes the SHPO will come back to put conditions on the project to be modified to achieve the No Adverse Effect; we will modify to achieve a No Adverse Effect; if conditions can’t

be met easily, based on discussions with designer, we explain why they all can’t be met and propose new additions, and reach consensus.

Interviewer: Do you generally have decent flexibility with your designers and engineers on being willing to work on the design per what SHPO is asking for?

It varies from project to project whether our designers have flexibility to make changes per SHPO requests. It depends on the single designer, sometimes. If the projects are local government projects (by a City) where DOT is only involved in funding and oversight, sometimes those local governments can be inflexible about what they want the project design to look like.

• Question only for State DOTs and FHWA: Have you had to make findings of No Effect and No Adverse Effect for projects that use alternative approaches to project delivery, such as design- build, Construction Manager/General Contractor (CM/GC) or Public Private Partnerships?
  • If yes, did you have to apply these effects finding in ways that were different from applying these findings to a standard design-bid-build approach to project delivery (e.g., different in terms of the timing of these effects findings, the consultation process associated with making these findings)? If yes, how were they different from your standard approach to making these effect findings?

DOT contracts out most of their design work in the first place… I haven’t been heavily involved with design-building projects on the design end, so I can’t speak to that much.

We do have a Turnpike Authority, that sounds like a Public Private Partnership, but I have not been involved in reviewing those projects or in the early stages of those projects. The Turnpike Authority has been a separate entity historically, but there’s a move now to integrate it more into DOT.

• What is your experience with consulting with CPs in making findings of No Effect and No Adverse Effect?
  • What specific successes have you had?
    • They can help convince the DOT to modify a project to achieve “no adverse effect”
  • What specific challenges have you had?
    • Their recommendations on how to treat historic properties can conflict with SHPO recommendations.
  • What measures would you suggest for addressing those challenges or what measures have worked or not worked in the past?
  • Can you provide project examples that highlight a success or challenge?

We have not had that type of involvement with CPs for a very long time, and they usually do not have much influence on our effect determinations. Usually, the way their involvement works is we invite them to be CPs when we initiate consultation with SHPO and the Tribes, it’s in rare instances that they provide comments other than they support the project. Where we do get more involvement with CPs is with Route 66 and historic bridge projects. The Section 4f process has been had more involved consultants, meeting to present the preferred alternatives and determine the preferred alternative.

Interviewer: What sort of CPs are you talking to for the Route 66 projects?

For Route 66 projects, we consult with the state Route 66 Association, the NPS, a new group called Route 66 the Road Ahead Partnership, and there is also an independent scholar, Subject Matter Expert

who made a NRHP nomination and knows a lot about Route 66 alignments. We’ve had one project very recently on a particular segment of Route 66 that is unique and really well known, which has an interested subgroup within the Route 66 Association. Those are the CPs we have on those kinds of projects.

Interviewer: Do you get a lot of pushback from those groups on your projects?

On some Route 66 projects we get some pushback, like when we’re demolishing a historic bridge, but when we’re rehabilitating Route 66 bridges, we have success with these partners, making sure they are in agreement and supportive over all.

Interviewer: Do you have any sort of statewide PA with SHPO for bridge projects?

We have done historic bridge surveys, so we have an overall agreement with SHPO for determining whether a New Deal era and other historic bridges are eligible for those surveys. Our agreements don’t cover assessment of effect except they specify some prescribed mitigation measures when there will be an Adverse Effect (like HAER documentation is a standard, but there is also discussion on other types of measures as well, like public interpretation, interpretive signs, etc.)

• Question for State DOTs only: When one of your projects crosses lands managed by a federal agency, such as the BLM, U.S. Forest Service, or National Park Service, how do you handle making findings of No Effect and No Adverse Effect? Does your agency make the effects determination and then obtains concurrence/agreement from the federal agency? Does the federal agency make the determination and then provides you documentation on their determination? Do you follow some other approach in making these findings? Do you have a different process for different federal land-managing agencies?

I have not been involved in these types of projects, so I can’t speak much to that; I know we have discussions on who will be the lead federal agency… Usually, if it’s a road construction project, we are the lead agency.

• Question for State DOTs only: When one of your projects requires a permit from the U.S. Army Corps of Engineers (USACE). how do you handle making findings of No Effect and No Adverse Effect? Does your agency make the effects determination and then obtains concurrence/agreement from the USACE? Does the USACE make the determination and then provides you documentation on their determination? Do you follow some other approach in making these findings? Do you have a different process for different USACE Districts in your state?

I think the only time we’re not the lead agency is on projects where the Corps of Engineers takes over because DOTs funds shift to state funds.

Interviewer: How has your experience on those handful of projects where the Corps as the lead agency been, do they want to have more or less input than FHWA on your determination of effects assessment?

I can’t think of an example where we’ve had effects assessments in question. If we’re identifying historic resources, like a historic bridge, the Corps usually defers to our and SHPOs assessment and general mitigation processes.

Interviewer: Does your DOT have projects on Tribal lands where you deal with THPO rather than SHPO?

For all of our projects we have Tribal consultation but I can’t think of a project where we consult with THPO but not SHPO.

CONSIDERATION OF EFFECTS DURING PROJECT PLANNING AND EARLY PROJECT DEVELOPMENT (ONLY DIRECTED TO FHWA DIVISION OFFICES AND STATE DOTS)

• After project initiation, have you worked with transportation engineers, designers and others in order to come up with project designs that avoid or minimize effects to historic properties, resulting in finding of No Effect and No Adverse Effect?
  • If yes, can you describe how and when this was done during project development? Did you encounter any challenges in working with these agency staff in order to avoid or minimize effects, and if so, how did you address these challenges?
    • NEPA Scoping
    • Scoping reviews by cultural resources staff, Integration of previously identified historic properties into agency platform

We try to make that information [previously identified resources] available to the designers and through the methods I mentioned; we’re never quite sure how much they take that into account, however.

NCHRP Project 25-65

PREPARING SUCCESSFUL NO EFFECT AND NO ADVERSE EFFECT
SECTION 106 DETERMINATIONS: A HANDBOOK FOR
TRANSPORTATION CULTURAL RESOURCE PRACTITIONERS

INTERVIEW QUESTIONNAIRE

STATE DOT

Date of Interview: June 13, 2023

Text in red indicates previous responses from online survey.

Text in blue indicates interview response.

Text in green indicates interviewer’s follow-up or off-script questions.

RESOURCES FOR MAKING DETERMINATIONS OF NO EFFECT AND NO ADVERSE EFFECT

The following questions ask about the resources commonly used by your agency when conducting an assessment of effects.

• What specific resources, procedures, or policies does your agency have that assist in making findings of No Effect or No Adverse Effect? Can you share these with us?
  • Defining APE
    • Manual
  • Applying NRHP Criteria, identifying CDFs, Identifying, and assessing the aspects of integrity
    • Guidance for DOE
  • Defining boundaries of a property
    • Guidance for DOE
  • Making findings of no effect and no adverse effect and how to document
    • Manual
  • Procedures for communicating these findings with SHPOs/THPOs/NHOs, and other CPs and the public