Creating a Handbook for Successful No-Effect and No-Adverse-Effect Section 106 Determinations (2025)
Chapter: Practitioner Interviews: Practices and Experiences
PRACTITIONER INTERVIEWS: PRACTICES AND EXPERIENCES
This chapter provides some additional insight as to how practitioners such as agencies, state DOTs and SHPOs make and review findings of No Effect and No Adverse Effect. This additional insight is drawn from interviews conducted in the summer of 2023. The interview results, presented below, are organized by the topics and issues that served as the focus of the interviews.
INTERVIEWING PRACTITIONERS
The project team interviewed 13 state DOTs, eight SHPOs, one private consultant, FHWA Headquarters staff (including the FHWA FPO), FRA Deputy FPOs, NPS FPO, ACHP, and a representative of NATHPO. Of the state agency interviews, five states participated in joint interviews with state DOT and SHPO staff.
Resources Used for Making Findings of No Effect and No Adverse Effect
Statewide Delegation Programmatic Agreements
State DOTs and SHPOs from states with statewide delegation PAs that include stipulations on making findings of No Historic Properties Affected and No Adverse Effect were asked if the implementation of those stipulations was working well. Generally, state DOTs and SHPOs stated that their PAs are working well, citing the use of a streamlined review process for minor projects that have minimal potential to affect historic properties as providing a great benefit. These minor projects, which are listed in the PAs, do not require review and consultation with SHPOs and other CPs, and generally are not documented as a formal Section 106 effects finding, such as No Historic Properties Affected. Although the majority of state PAs include this streamlined review process for projects that have minimal potential to affect historic properties, none of the interviewees discussing their PAs noted the inclusion of alternative approaches for findings of No Historic Properties Affected and No Adverse Effect that differ from the standard effects assessment process laid out in the Section 106 regulations.
Elements of a Well-Reasoned and Defensible Finding of No Effect and No Adverse Effect
State DOTs and SHPOs were asked why certain elements are important in making well-reasoned and defensible findings of No Effect and No Adverse Effect. The key elements identified by the respondents are presented below.
Well-defined Historic Property Boundaries
Interviewees agreed that well-defined and carefully chosen historic property boundaries were important. They noted that one cannot come to a finding of No Adverse Effect if the boundaries of a historic property are not known and accurately mapped. It is important that the boundaries be defined early in the process, since, as one interviewee noted. “if it is consistent, it is easier to defend.” Interviewees also considered it important to understand property boundaries to assess the nature of a project’s impact on a property in the context of Section 4(f) of the Department of Transportation Act. If a project extends, for example, into a small portion of a property boundary and as a result would have only a minor impact to the property (resulting in a finding of No Adverse Effect under Section 106), then the project, in relation to this property, might be processed under Section 4(f) as a de minimus impact finding. This Section 4(f) approval option requires the least documentation and fewest steps of the three Section 4(f) approval
options when a project takes land from a protected Section 4(f) resource, such as a historic property (FHWA 2012, 2024b).
Interviewees provided additional specific reasons why well-defined historic property boundaries were important.
- “We have scope creep and project actions change from original investigations, so we created a well-defined boundary…so we can have a good determination [if the project changes].” State DOT Representative
- “As an example, for farmsteads, do you include the acreage with the fields or just the buildings and then include the field as contributing to the setting. We have seen it both ways, but it is important to define to accurately determine effects depending on what exactly the project is impacting.” SHPO Representative
- “Those project boundaries tend to be where the rubber meets the road in terms of finding of No Adverse Effect.” State DOT Representative
Explicit Identification of Historic Property Significance and Essential Physical Features
As one interviewee noted, if a project involves destroying a resource, the details of the windows do not matter. In such cases, devoting effort to establishing the CDFs would be a waste. However, there are cases in which features such as “fencing, vegetation, columns, and retaining walls” might or might not contribute to property significance. These types of features are often along the edges of properties adjacent to a road/highway. In an urban context, interviewees noted that sidewalks are features that can be particularly difficult to determine as to whether they contribute to a historic property or larger historic district (see section on Historic Districts, below). Understanding the contributing status of these features is critical to assessing the effects of many transportation projects. A finding of No Adverse Effect cannot be reached in many circumstances unless there is agreement among the agencies and CPs as to which features contribute to NRHP eligibility and which do not. Two interviewees noted that this issue often comes up with historic bridges. One interviewee noted that since properties have changed over the decades, establishing the period of significance is key.
Another identified challenge involved indirect effects to a property’s setting. Older documentation for historic properties often does not explicitly discuss physical essential features such as setting, requiring a re-assessment of what makes a property significant. To address effects to setting, one state DOT is experimenting with visual simulations and use of environmental visual impact analysis studies to help understand how a property, with setting as an essential physical feature, may be affected by a project.
Interviewees also found linear resources such as historic roads, irrigation systems, and railroads to be particularly challenging in terms of assessing significance and essential physical features, and in turn project effects, because these resources often extend well outside the APE. The scale of some linear resources poses a particular challenge if no previous survey or evaluation of the resource has been done. This can, in some cases, result in turning a relatively small transportation project into a larger effort than anticipated. Rather than surveying the entire extent of a linear resource network, some states such as Colorado have developed methodologies to assess significance of segments of linear resources. The Colorado SHPO has published a white paper, Walking The Line: Guidance For Identification, Evaluation, And Field Recordation of Historic Linear Sites In Colorado (Horn and Norton 2021), which provides guidance on identification and evaluation of fences, roads/trails, canals and ditches, water pipelines, oil and gas pipelines, and utility lines. Colorado DOT has also developed a Non-Significant Linear Resource Checklist that assists agency staff in assessing whether a segment of a linear resource has sufficient
significance to warrant completion of a state survey form. The form is then submitted to SHPO with the project information for their review.
Interviewees provided some additional ways to address the challenges that linear resources pose.
- Complete NRHP evaluation of all highways in their entirety. For example, a regional historic highways context is being developed for Idaho, Oregon, and Washington to assist in evaluating highways in that region. Interstate linear resources can pose additional problems when each state has differing criteria for assessing eligibility. Regional studies alleviate these issues to some degree.
- Consider the historically significant boundary for linear resources—the historic boundary may be smaller than the actual ROW. In addition, the historic boundary may change within segments of the linear resource.
Explicit Identification of Associated Aspects of Integrity
Most interviewees had no or minimal response to the question dealing with the aspects of integrity. A few interviewees did note that the aspects of integrity are important in assessing whether an impact should be considered an Adverse Effect. One interviewee stressed that it was important to identify changes to a historic property over time, particularly in relation to large linear historic properties such as roads, irrigations systems, etc., to determine how a project might diminish the linear property’s current integrity (see section on Linear Resources, below)
Clear and Comprehensive List of Project Activities and Their Locations
Interviewees agreed that a clear and comprehensive list of project activities and an accurate project map are essential. One interview called this the “most important” requirement for effects determinations. Another said, “If the project activities are not clear, or certain activities are missing, you can’t make an accurate effects determination.” Some interviews described a multi-step process, beginning with a broad initial APE that is refined over time as project design is advanced. Interviewees noted that project plans evolve over time, and their importance to the process depends on their being advanced enough to provide sufficient information to make a formal effect finding.
Other Elements and Information
Asked about other elements and information that they consider important, interviewees gave a variety of responses.
- Project schedules.
- “Better details on CDFs, integrity, and significance.”
- Adequate consultation with potentially affected communities.
- Complete land use history, because of its importance for archaeological resources.
Three interviewees said that, in effect, everything is important, because if anything is missing, that can delay the process. Submissions must be complete. There must be supporting documentation for all effects findings.
Indirect and Cumulative Effects
Questions were directed to agencies regarding the application of indirect and cumulative effects. Most SHPOs and state DOTs were well versed in the application of indirect effects (e.g., audible, visual, atmospheric); however, the interviews revealed a wide range of experiences in the application of cumulative effects. Fourteen of 15 interviewed state DOTs and SHPOs have experience applying
cumulative effects to determinations of No Effect or No Adverse Effect; but many still found the consideration of cumulative effects challenging. Some found it challenging when there was so much development in/near a project area, they did not know how to take into account this past development in assessing a cumulative effect. Others found it challenging when projects involved linear resources such as roads and irrigation ditches/canals, where the project intersected only small sections of the resource.
One common theme among the responses was the importance of understanding what people in a community value in order to assess indirect effects. The engineer and other professionals working on the project will move on after it is completed, but the community will end up living with the project’s effects. As one interviewee put it, “It’s about trying to get into the heads of the community.” It is also important, interviewees emphasized, to think about the long term and imagine what the area will look like five or 10 years after a project is built.
The following are a some of the interviewees’ comments and challenges related to cumulative effects.
- “It’s about trying to get into the heads of the community and the property owners that are there. . . human nature for community members to think about the future effects because they will actually be dealing with it. Engineers are much more focused on just what the project is.” State DOT Representative
- “More difficult when there is an area where many resources have been identified but the area has not been looked at cumulatively.” State DOT Representative
- “Roads cause issues with cumulative effects. We have a memo for irrigation resources that if your project requires piping of an open canal and that section within your APE would become a non-contributing segment of the canal, which would be an adverse effect. We have that in place because we couldn’t wrap our heads around the cumulative effects of all the canal projects. So, we looked at it holistically and have every project that impacts the canal in a way that would be an adverse effect. You could almost apply the same concept to roads.” SHPO Representative
- “For example, 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 a 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 and there was the potential for it to be lost, which it was.” State DOT Representative
- “Divided Highway and interstate interchanges – look at what does progressing development look like here after 5-10 years following the project.” State DOT Representative
- “We will share with SHPO what we know about future projects in an area and consider whether adding the current project to what’s planned for the area may have a cumulative effect or lead to another finding.” State DOT Representative
- “We consider cumulative effects, but I can’t think of a lot of cases where we raise a cumulative effect to an adverse effect. We certainly consider traffic increases.” State DOT Representative
- “We try to consider, often in the form of long-term vibration to historic structures.
- If the effects to historic structures are during construction versus this building will be shaken every time trucks go by so nobody wants to live there.
- We would look at this as the result of a project – effects that would have a lasting impact on historic resources.
- This is in the hypothetical though.
- When we have looked at vibration, we have thought of the cumulative impacts.” State DOT Representative
Several interviewees had difficulty in speculating what potential impacts could be in the future, and gauging the severity of indirect effects, especially related to specific areas of integrity.
- “Developing cumulative effects is much more laborious on our and FHWA’s part. How far or wide do you cast the net in identifying projects? How far back in time does one go? Plus, I thought we were guided in the concept that you can’t have cumulative effects if your project does not adversely affect a resource.” State DOT Representative
One state DOT had a project where a stretch of a historic road was slated for installation of a few roundabouts. The project area was small in comparison to the entirety of the historic road; however, multiple similar projects in different segments of the road prompted them to think about the cumulative effect of the historic road.
Two other state DOTs expressed concerns regarding the construction of roundabouts and their potential to have a cumulative effect on historic roads. The challenge with assessing cumulative effects is deciding when it is appropriate to make a finding of No Adverse Effect vs. Adverse Effect. Individually, roundabouts are typically not considered an adverse effect; 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. Methods provided by interviewees to address this issue include the following.
- Use a holistic approach towards the evaluation of effects on historic roads.
- Include linear resource procedures in statewide PA updates.
- Complete statewide historic highway studies with NRHP evaluations.
Using Conditions to Achieve a Finding of No Adverse Effect
State DOTs and SHPOs were asked what experience they had with making or reviewing assessments of No Adverse Effect based on the application of conditions to a project, following 36 CFR 800.5(b). Most state DOTs noted that they did not make findings of No Adverse Effect based on imposed project conditions, as referenced in 36 CFR 800.5(b), but rather changed the design to avoid affecting a resource or imposed minimization measures within project plans or specifications. These measures were not perceived as “conditions” and these measures were used to make a finding of No Adverse Effect. However, some state DOTs considered these same actions as conditions that were the basis to a finding of No Adverse Effect. Many state DOTs use tools such as “Job Special Provisions” in construction plans to ensure that minimization and avoidance measures are met. Some state DOTs did make a finding of No Adverse Effect based on imposed conditions where design/project plans required SHPO review to comply with the Secretary of the Interior (SOI) Standards for Rehabilitation or where monitoring was required during ground disturbing activities. Two state DOTs stipulate standard conditions in their statewide PAs that are used within a specific set of project and resource parameters. One federal agency commented on the dangers of overuse of conditions, stating, “You want to make sure the conditions don’t get strung out so far like a whole line of dominos” (Federal Agency Representative).
Challenging Projects, Historic Properties, and Findings of No Effect and No Adverse Effect
Most of the property and project types that are challenging to deal with in the context of making findings of No Effect and No Adverse Effect are, as one interviewee noted, “the nexus between a historic property and a living active transportation system.” The challenge is to “maintain what’s important about this [historic] resource in the context of what [is] important to this active living system” (Federal Agency Representative). The ultimate challenge is when the “living” transportation facility is the historic resource.
Linear Resources
Given that many of the linear resources encountered on transportation projects are “active transportation systems” such as roads and railroads, it is no surprise that this resource type was a foremost topic of discussion with some interviewees. Key issues that were brought up with regard to linear resources include the following.
- Assessing integrity of long transportation networks.
- Need for state or regionwide studies of linear resources.
- Level of effect when one or a few contributing features are impacted within a long linear resource.
- Cumulative effect of improvements on a long linear resource.
Guidance developed for linear resources by the Colorado SHPO summarizes the difficulty of linear resources within the context of Section 106 reviews:
They often constitute infrastructure of a community and are conveyance systems of water, power, or even people, and are most significant in how they relate to the communities or resources they connect, often more so than their physical manifestation. Linears can also be challenging in that they can be large sites that cover an enormous area, such as a railroad, and might cross several jurisdictions or municipalities. An added difficulty for compliance related work, linears almost always have some portions that fall outside of a project APE or, at times, cross an APE multiple times, or may be the APE itself [Horn and Norton 2021].
Assessing the effects of a project on linear resources poses a challenge on several different fronts, as discussed above. Because of the scale of these resources, identification is often done piecemeal, making assessment of the effects of an individual project difficult. Often identification of the linear resource well outside the APE is necessary to understand effects unless guidance is in place to deal with these types of resources. Some linear resources, such as irrigation systems, can often be ubiquitous, making explicit identification of significance difficult, which in turn makes assessing effects difficult and often contentious.
Oregon SHPO’s Guidance for Recording and Evaluating Linear Cultural Resources provides some guidance on assessing effects of projects on linear resources:
As with more typical historic districts, project effects to linear resource segments within project APEs should be considered within the context of the significance and integrity of the resource as a whole, that is, an effect to the segment encountered, if found to be contributing to the overall eligibility of the resource, should be considered in terms of overall effects to the entire resource (pg. 20).
It is possible that a contributing segment could be impacted such that, if the resource were composed of that segment alone, it would be an adverse effect, but when judged against the entirety of the resource, the effect could be not adverse. Pay close attention to the features that are being affected – projects that affect features that are singular or few in number across the system, such as headgates, locks, trestles, impoundment dams, etc. are more likely to translate to an adverse effect to the overall resource than are minor features that appear frequently and identically, such as slide gates, control boxes, etc. [Oregon SHPO 2013:20].
The effect of a project on a linear resource should also consider the size and nature of the impact, including indirect impacts, and especially with linear resources, cumulative impacts (pg. 20).
Adverse effects can also arise from undertakings affecting the setting of a linear resource, though,
as in any evaluation of effect, the degree to which adverse effects can arise from visual or audible intrusion is based on the proximity and visibility of the undertaking, the degree to which the historic setting may already be compromised by previous development, and the degree to which the setting is considered to be an essential physical feature of the property’s eligibility [Oregon SHPO 2013:21].
Historic Districts: Sidewalks, ADA, and Shared-Use Paths
Numerous state DOTs and SHPOs discussed challenges with small-scale transportation improvement projects such as sidewalks, ADA improvements, and shared-use paths when they occur in historic districts. In an urban context, designers and engineers often use standard designs for these elements that are not compatible with the setting and character of historic districts. This often “leads to a lot of back and forth with cultural on how to get to a NE or NAE finding” (State DOT Representative). In a rural context, introduction of these features where none have existed before can be a challenge to assessing effects, particularly in large rural historic districts where the project constitutes a small portion of the overall historic district. Often these types of projects are funded through Local Public Agency programs, which may not be routed through and reviewed by the state DOT’s cultural resource staff prior to sending the project documentation to SHPO. One state has included a provision in their recently updated PA to require a local programs reviewer at the state DOT to review these projects before they are sent to SHPO for consultation. Prior to this provision, the local project proponent was able to send documentation directly to SHPO without state DOT input. Interviewees also expressed difficulty in getting project specifics from local project proponents that was sufficient to complete an adequate assessment of effect in those cases where the state DOT cultural resource staff are involved in the review of the project.
Noise Walls
Two state DOTs identified noise walls as a particular challenge when assessing effects. Noise walls can reduce noise and provide screening from a non-historic viewshed for adjacent properties; however, the wall itself is a change in setting that can cause disputes over whether the effect to adjacent historic properties is adverse or not. In some cases, projects designed to improve safety are perceived by CPs as leading to an increase in traffic and therefore noise and vibration. The perception of a foreseeable Adverse Effect is not borne out by the data, which leads to conflicts in opinions on effects.
Archaeological Sites and Traditional Cultural Properties/Places
Archaeological Sites
State DOT and SHPO staff were asked if they had experience applying findings of No Effect or No Adverse Effect to archaeological sites. The interviewed agency staff that reported having this experience expressed the following challenges and how they were addressed.
- “We run out of time to make these determinations, especially when we find a site” State DOT Representative
- “So, we go straight to data recovery, assuming eligibility and assuming adverse effects.”
- “When human remains are on the archaeology site, we make these findings and typically elevate to an Adverse Effect finding even if we don’t really have concerns.
- We may put something in project plans for contractor or make a field review.
- We want to make sure out stakeholders know we care and so that they don’t have to ask.
- Need good boundaries for archaeological sites to show negative areas between the site and its marginal areas.” State DOT Representative
- “Usually, we work towards avoidance. Minimization is rarely used [with archaeological sites].” SHPO Representative
Several interviewees identified archaeological sites that extend outside a proposed project’s ROW as a particular challenge with respect to making findings of No Adverse Effect. Most DOTs do not test outside the ROW to delineate the boundary of an archaeological site that is partially within the ROW. When the results of testing within the ROW are not definitive as to eligibility under Criterion D, sometimes called marginal areas of the site, assessing eligibility can be difficult and consequently making a finding of No Adverse Effect, unless the site is avoided, can be problematic. In some cases, state DOTs will authorize testing outside the ROW to get resolution on the information potential within the ROW, and therefore be able to determine if impacts to the site within the ROW will or will not result in an Adverse Effect to a National Register-eligible property. One interviewee discussed the concept of archaeological site integrity to address archaeological deposits within the ROW. Discussing the integrity of the deposits rather than their eligibility allows the portion of the site within the ROW to be analyzed without labeling it as “not eligible” and potentially extrapolating that finding to the portion of the site outside the ROW. Some DOTs assume that the overall site is eligible and designate the tested ROW deposits as non-contributing to the larger site if the tested area has no integrity.
Traditional Cultural Properties/Places
Relatively few DOTs (25 percent) that were interviewed had experience making a finding of No Adverse Effect for projects involving TCPs within the APE. Those state DOTs that work closely with Tribes valued their expertise on TCPs and generally agreed with the Tribe’s views on effects. Several interviewees discussed concerns about visual impacts to TCPs.
- “Certainly, on the more TCP side of things, Tribes are getting much more concerned about visual impacts (from lighting or new elements to viewshed or whatnot).” State DOT Representative
- “Trying to find the line between [No Effect] and [No Adverse Effect] can be tricky with TCPs, especially if it involves viewsheds.
- We’ve had to consider—what if you have this really sharp curve with safety issues—trying to modify for safety, but it would open up a big visible scare in a [scenic] mountain range that has significance as a TCP.” State DOT Representative.
Consultation and Communication
Maintaining Positive Relationships Among Transportation Agencies and CPs
Interviewees were asked about their 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 determinations. Most state DOTs and SHPOs that had positive relationships between the two agencies pointed to frequent communication in a variety of forms: informal (usually phone calls), regular project/consultation meetings, and consistency in the information required for a successful project review. Informal communication (i.e., being able to pick up the phone and talk through an issue, whether missing information on a submittal or working through a complex affects assessment) seemed to be the most valuable approach for those agencies that had a positive relationship. In one state, the SHPO staff serving as a liaison to the FHWA and the state DOT (the position is funded by the FHWA and state DOT) communicates frequently with the transportation agencies on projects and says it “helps the process immensely” (SHPO Representative). SHPOs and state DOTs also pointed to the value of regular meetings to discuss upcoming projects, historic property concerns, and other issues. These meetings allow staff from both agencies to get ahead of any issues and work through problems before the official effects
finding was sent for review. As an example, one state DOT has standing monthly project meetings with the SHPO and CPs for project reviews.
Consistency in what each agency expects in terms of information, whether it is what the state DOT expects from their consultants or what the SHPO expects from the state DOT, is also a key in establishing and maintaining a positive relationship and conflict-free findings of No Effect and No Adverse Effect. This consistency of information was seen as key throughout the Section 106 process, including consistent property information for NRHP evaluations, consistent project information to assess impacts, and consistent analysis of effects to historic properties. Most agencies try to assure this consistency of information through guidance, and standardized forms and tools, which also provides consistency when staffing changes occur within the agencies. See Table 1 in the Literature Review chapter for guidance, forms, and tools that agencies have found useful. Although some of these may seem simple, they do provide a framework for consistent information that facilitates the Section 106 process and builds trust between the agencies. It is often the lack of sufficient and consistent information in the Section 106 process that leads to disputes over findings of No Effect and No Adverse Effect.
Working with Consultants, Community Groups, and Other CPs
State DOTs and SHPOs highlighted some of the same best practices for working with private consultants, community groups, and other entities that provide historic property identification and effects documentation to their agency. For example, state DOTs and SHPOs achieve consistency of information through survey guidelines, consultant trainings, report guidelines and sometimes templates, as well as information for community groups and other parties on their role in the Section 106 process. Some of these strategies are listed below.
- Partner with local history groups to conduct a survey and community outreach regarding historic resources in their community. State DOT Representative
- Develop historic property registration requirements and identification guide specific to a certain community. State DOT Representative
- Create training materials in partnership with SHPO to help teach basics of Section 106 to CPs. State DOT Representative
- During consultations, ask specific, pointed questions to CPs regarding the subject historic property resources or project. State DOT Representative
- Ask consultants to explain their recommendations better. This usually results in a change in consultant recommendations on eligibility or effects findings. State DOT Representative
- Encourage agencies to properly review consultant reports and make sure the work is accurate and complete. State DOT Representative
- Advocate for university programming to teach Section 106. State DOT Representative
- Proactively caution consultants that Section 106 determinations are the responsibility of the agency. State DOT Representative
- Consistent and frequent negotiation with landowners State DOT Representative
- Education—using a version of the ACHP’s citizen’s guide to Section 106 that tries to explain the roles of CPs in the Section 106 process. State DOT Representative
- Virtual road shows—recorded presentations on the SHPO’s website concerning the Section 106 process. SHPO Representative
- Educating CLGs and local municipalities through preservation meetings and partnering with the local history museum. SHPO Representative
- Having an Outreach Historian embedded in the SHPO to provide local groups and other CPs and the public with educational materials and resources about state history, funding mechanisms, programming such as CLGs, and main street programs. State DOT Representative
Making Determinations of No Effect and No Adverse Effect with Federal Land Management Agencies and the USACE
Especially in the West, state DOTs often find themselves working with federal land management agencies because they own the land through which many roads run. These situations create challenges because the land management agency has the final say in who will serve as the lead federal agency for Section 106. Some state DOTs indicated that the land management agencies usually allow the FHWA, with assistance from the state DOT, to serve in that role (the state DOT serves as the lead federal agency when the state has taken on NEPA assignment). Others described a procedure under which the land management agency may serve formally as the lead federal agency while allowing the state DOT to do most of the work. If the land management agency wishes to serve as the lead, then to complete the project the state DOT must coordinate with the land management agency, and maintaining a positive relationship can be critical. If they are doing the work, the state DOT must supply the land management agency with the information needed to make determinations of eligibility and effects. One state DOT noted that they always agree with the determinations made by the federal agency. These situations are another case where it is vital to establish proper boundaries for the project early on, as that will determine whether the project is confined within existing roadway easements crossing federal lands or will require the use of additional land managed by a federal agency.
Several interviewees discussed cooperation with the USACE. Generally, interviewees indicated that the USACE was not eager to serve as the lead federal agency on transportation projects. Some states have formal agreements in place that allow the FHWA, with assistance from the state DOT, to serve as the lead federal agency for projects that cross USACE controlled lands or require a USACE permit, presenting the findings to the USACE for their concurrence. Sometimes this is achieved by having the USACE as a signatory to a statewide PA for the state’s federal transportation program. These relationships and agreements simplify and reduce the steps in making effects findings, especially for bridge projects that require a USACE permit.
Tribal Consultation and Engagement
State DOTs and SHPOs noted that the nature of tribal engagement depends on the specific Tribe. Each Tribe has their own approaches and protocols for Section 106 consultation, so few generalizations are possible. One common theme noted by the agencies, however, is that Tribes want state DOTs to avoid archaeological sites of value to the Tribes. If a site can be avoided, Tribes will readily agree to a determination of No Effect, but they are reluctant to agree with a determination of No Adverse Effect if there is any impact to the site. Because avoidance is the solution preferred by most Tribes, it is essential to know the locations of sites early in the process so it will not be necessary to make design changes late in project development. Interviewees emphasized that early communication is also helpful in a more general sense; however, one representative of tribal interests explained that consultation with Tribes often does not take place early enough and is not consistent during project development, especially when a Tribe is located in a different state from the project. Another issue identified during the interviews is that sometimes lead agencies will complete an assessment of effect and make a determination of effect assumption before consultation with a Tribe occurs.
The interviewed state DOTs and SHPOs did not have extensive experience with findings of No Effect or No Adverse Effect involving TCPs, and they noted that most Tribes have even less. However, some
interviewees indicated that they had been able to make a finding of No Adverse Effect by working with the Tribes and demonstrating that they had taken steps to minimize impacts, for example, by design changes. Yet, issues can arise between agencies and Tribes, particularly when a Tribe asks for a redesign for avoidance, as agencies are hesitant to spend money on a redesign or it is too late in the design process to do so. An interviewee reiterated that if proper consultation happens early in project planning, redesign will not be an issue.
State DOTs and SHPOs were asked whether direct effects or indirect effects are the most commonly considered in a finding of No Adverse Effect to archaeological sites of value to Tribes and to TCPs. For archaeological sites, most said, only direct effects were usually considered. However, some interviewees mentioned cases in which Tribes brought up indirect effects. In addition, some Tribes consider research to be an impact in and of itself, so they wish to see archaeological or ethnographic studies curtailed as soon as sufficient information was available to guide the Section 106 process.
State DOTs and SHPOs repeatedly emphasized that early and respectful consultation with Tribes is the key. Some states have regular meetings between tribal leaders and staff from SHPO and state DOT, and these were described as helpful. “The Big Picture,” said one interviewee, “is to focus on the relationship.” Some interviewees noted that since tribal expertise is needed to identify TCPs, the Tribes need to be engaged to get their input on defining TCPs and to understand what might constitute an impact to them.
Consideration of Effects to Historic Properties During Planning
State DOTs were asked a series of questions about if and when potential effects to historic properties are considered during early project planning, such as during long-range planning, planning efforts with 10- to five-year planning horizons, or projects in STIPs. Review of the answers to the questions indicate that most agencies first take potential effects to historic properties into account during project initiation and no sooner, and that consultation with SHPOs or other parties did not begin until that stage. However, with certain large, complex project studies, such as corridor studies, state DOTs reported that they did conduct early stage, pre-NEPA planning studies that consider cultural resources. Two state DOTs noted that their GIS planning tools include cultural resource information, so these tools could be used by transportation planners.
Alternative Approaches to Project Delivery
Only three state DOTs interviewed had experience with projects using alternative approaches to delivery, such as design-build, and these projects had an Adverse Effect on historic properties. One state noted that the project-specific PA for a Public Private Partnership project included stipulations on how to assess project effects as project design was advanced.
CASE STUDY SUMMARY
Online survey respondents identified 11 projects as potential case studies of successful findings of No Effect and No Adverse Effect. Some of the respondents provided information on a project, whereas others only provided the name of the project. Additional case studies were identified by the NCHRP 25-65 Project Panel. Phone interviews were solicited from the respective state DOT, SHPO, and other known CPs as applicable for each case study identified. During the interviews, online survey questions were expanded to facilitate a broader discussion regarding the steps and approaches taken to achieve findings of No Effect/No Adverse Effect for these projects. When possible, multiple staff within the state DOT and SHPO were included in the interviews to gain an interdisciplinary perspective. On the occasion that agencies were not available for an interview, they were asked to provide images and further details on the case study for the project team’s use.
Brief summaries of each case study are provided below. Complete analysis and reporting of the case studies are provided in the appendix of NCHRP Research Report 1133: Preparing Successful No-Effect and No-Adverse-Effect Section 106 Determinations: A Handbook for Transportation Cultural Resource Practitioners, which is available on the National Academies Press website (nap.nationalacademies.org).
CASE STUDY: ADA IMPROVEMENTS, US-266, CHECOTAH HISTORIC DISTRICT, Oklahoma
NO ADVERSE EFFECT (ACHP RESOLUTION OF A DISPUTE)
Project: Sidewalk improvements to US-266 to improve pedestrian safety that meets ADA standards, including new concrete sidewalks, ADA compliant ramps, and bump-outs.
Finding of Effect Overview: Project boundaries were located within a NRHP-listed commercial historic district. ACHP resolution of a disagreement on effect cites distinction that the proposed bump-outs would not alter the character-defining features of the historic district as the streetscape was not identified as such in the district nomination.
CASE STUDY: I-495 (CAPITAL BELTWAY) NEXT PROJECT, Virginia
NO ADVERSE EFFECT WITH CONDITIONS
Project: Extension of the 495 express lanes by 2.5 miles to provide congestion relief, as travel choices, improve travel reliability and enhance safety on the corridor from Dulles to the George Washington Memorial Parkway (GWMP).
Finding of Effect Overview: Given the important elements of the NPS GWMP historic property and cultural landscape, and specific signage requests by NPS, VDOT developed a Visualizations Booklet to provide design options and facilitate with consulting parties to reach a finding of NAE. Conditions were implemented concerning the protection of archaeological sites, stone wall designs, and landscape elements specified by NPS.
CASE STUDY: WISCONSIN TRIBAL AFFAIRS GROUP
GUIDANCE
Description: The Wisconsin DOT promotes and enhances government-to-government relationships between Wisconsin’s 11 federally recognized tribal governments and the state through the work of a dedicated Tribal Affairs program. The program serves the entire DOT and consists of a program manager project manager, and five regional tribal liaisons.
Tribal Notification (Cultural): In fulfillment of Section 106 and state requirements to notify consulting parties, including Native American Tribes, of a project using federal/state funding or permitting, Wisconsin DOT sends all project notification to tribes electronically. All notification letters follow guidance with suggested language for emails developed by the DOT (November 2022).
CASE STUDY: BRIDGE STREET BRIDGE REHABILITATION, New Hampshire / Vermont
NO ADVERSE EFFECT
Project: Rehabilitation of National Register-eligible 1930s steel arch bridge including replacement of the deck, select superstructure steel components, replacement rail, reconstruction of an abutment, and minor road work to approaches.
Finding of Effect Overview: Work done in accordance with SOI standards, including bolting components rather than riveting, an ornamental balustrade rail attached to back side of new crash tested rail, and painting to match historic features.
CASE STUDY: STATE ROUTE 400, ENGLISH CENTER SUSPENSION BRIDGE, Pennsylvania
NO ADVERSE EFFECT (ACHP RESOLUTION OF A DISPUTE)
Project: Rehabilitation of National Register-listed 1891 bridge to halt deterioration, raise the permit weight limit, and provide a safe and reliable crossing.
Finding of Effect Overview: The SHPO disputed the state DOT finding of No Adverse Effect. By following the SOI standards, the ACHP agreed with the state DOT on a finding of No Adverse Effect as character-defining features of the bridge will be reused, including one-half of the eye bar suspension chains, the towers that support the chains, all the built-up vertical members, and some of the diagonals.
CASE STUDY: US HIGHWAY 12, WIDENING, Idaho
NO ADVERSE EFFECT
Project: Roadway improvements along US Highway 12 to increase safety on narrow, winding route.
Finding of Effect Overview: Following a disagreement on effects to an identified TCP, a finding of No Adverse Effect was reached by conducting an in-person site visit of the project area with Idaho Transportation Department cultural staff and the Nez Perce Tribe to discuss the extent of the project and proximity of project activities to the resource.
CASE STUDY: HIGHWAY 31, LITTLE SIOUX RIVERBANK STABILIZATION, IOWA
NO ADVERSE EFFECT
Project: Emergency stabilization of the riverbank to halt encroachment on Highway 31 including the installation of a revetment (riprap) structure to protect a significant archaeological site.
Finding of Effect Overview: A finding of No Adverse Effect was reached using design changes including reduction of contractor access points, relocation of the revetment structure, and profile of the road.
CASE STUDY: I-285 FLYOVER RAMPS, Georgia
NO ADVERSE EFFECT
Project: Mobility improvements including two new barrier-separated express lanes, elevated and at grade.
Finding of Effect Overview: To support a finding of No Adverse Effect, the state DOT provided SHPO with photographic simulations of the proposed express lanes from within an adjacent historic district as a means of analyzing potential visual effects.
CASE STUDY: I-695 (MARYLAND BELTWAY) TSMO, Maryland
NO EFFECT
Project: Installation of TSMO to reduce congestion, improve mobility and safety, and to better adapt to future transportation technology.
Finding of Effect Overview: A disagreement concerning visual effects to adjacent historic resource was resolved among the NPS, SHPO, and the state DOT through consultation and the relocation of traffic monitoring equipment to outside the viewshed of the property.
CASE STUDY: ROUTE 16, IMPROVEMENTS, New Hampshire
NO ADVERSE EFFECT
Project: Pavement rehabilitation and drainage upgrades including box reconstruction, two 12-foot travel lanes, tree clearing, and stone lining of embankment.
Finding of Effect Overview: Through robust consultation with consulting parties and alternative methods of resource identification, including the use of a state-specific policy on stone walls, the state DOT reached an agreement with SHPO on a finding of No Adverse Effect.
CASE STUDY: US-6 AUXILLIARY LANE, Colorado
NO ADVERSE EFFECT
Project: Mobility and pedestrian improvements to US-6 including addition of an auxiliary lane, realignment, and addition of curbing at driveways, filling sidewalks, drainage improvements, and new noise walls.
Finding of Effect Overview: Through a thorough noise analysis adverse impacts due to noise levels were mitigated using noise walls; however, the noise walls themselves required assessment of effect. As a result of the project and design simulations to assess visual impacts from the noise walls, the state DOT made a defensible determination of No Adverse Effect.
CASE STUDY: US-79, WIDENING AND IMPROVEMENTS, Texas
NO ADVERSE EFFECT
Project: Safety and mobility improvements to US-79 including widening, installation of a raised median, construction of an underpass and overpass, driveway modifications, and installation of a share-use path.
Finding of Effect Overview: Among other SHPO stipulations, effective consultation resulted in the relocation of a proposed clover-leaf interchange to minimize effects to an adjacent historic property.
CASE STUDY: US-93, IMPROVEMENTS, Idaho
NO ADVERSE EFFECT (ACHP RESOLUTION OF A DISPUTE)
Project: Construction of a four-lane roadway divided by a median involving alterations to a NRHP-eligible highway.
Finding of Effect Overview: The SHPO disputed the state DOT finding of No Adverse Effect. By following the Soi standards, the ACHP agreed with the state DOT on a finding of No Adverse Effect, citing design measures used to minimize impacts to setting, historic associations, and design elements of the roadway.
