Section 106 Processes

A Guide to the Ideals and Reals of CRM

What is Section 106 review?

This term refers to the federal review process designed to ensure that historic properties are considered during federal project planning and execution.

The review process is administered by the Advisory Council on Historic Preservation, an independent federal agency, with assistance from the State Historic Preservation Office.

Who established Section 106?

The Congress did, as part of the National Historic Preservation Act of 1966 (NHPA).

NHPA, strengthened and expanded by several subsequent amendments, today has become the cornerstone of this country's historic preservation policy.

Why was Section 106 created?

•NHPA was enacted because of public concern that so many of our nation's historic resources were not receiving adequate attention as the government sponsored much needed public works projects.

•In the 1960s, federal preservation law applied only to a handful of nationally significant properties, and Congress recognized that new legislation was needed to protect the many other historic properties that were being harmed by federal activities.

What does NHPA say?

Section 106 of NHPA requires that every federal agency "take into account" how each of its undertakings could affect historic properties. An agency must also afford the Advisory Council a reasonable opportunity to comment on the agency's project.

What is a federal "undertaking"?

Pursuant to the October 1992 Amendments to the National Historic Preservation Act, an "undertaking" means a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a federal agency, including (A) those carried out by or on behalf of the agency; (B) those carried out with federal financial assistance; (C) those requiring a federal permit, license, or approval; and (D) those subject to state or local regulation administered pursuant to a delegation or approval by a federal agency.

What is an historic property?

•For purposes of Section 106, any property listed in or eligible for the National Register of Historic Places is considered historic.

•The National Register is this country's basic inventory of historic resources and is maintained by the Secretary of the Interior.

•The list includes buildings, structures, objects, sites, districts, and archaeological resources.

•The listed properties are not just of nationwide importance; most are significant primarily at the state or local level.

•The protections of Section 106 extend to properties that possess significance but have not yet been listed or formally determined eligible for listing.

Who initiates Section 106 review?

•The federal agency involved in the proposed project or activity is responsible for initiating and completing the Section 106 review process. •Under certain circumstances, local governmental bodies may act as the responsible agency. The agency works with the State Historic Preservation Officer (an official appointed in each state or territory to administer the national historic preservation program) and the Advisory Council to do so.

•There can be other participants in the Section 106 process as well. At times, local governments, representatives of Indian tribes, applicants for federal grants, licenses, or permits, and others may join in the review process when it affects their interests or activities.

How long does Section 106 review take?

By law, the State Historic Preservation Office has a maximum of 30 days to respond to most types of reviews

What is the National Register of Historic Places?

The National Register is maintained by the National Park Service (NPS), Department of Interior.

It is the nation’s official list of districts, buildings, sites, structures, and objects documented as significant in American history, architecture, archaeology, engineering, and culture which possess integrity of location, setting, design materials, workmanship, feeling and association.

What are the National Register Criteria for Evaluation?

The evaluation criteria are designed to guide State and local governments, Federal agencies, and others in evaluating potential entries in the National Register. The quality of significance in American history, architecture, archeology, engineering, and culture is present in districts, sites, buildings, structures, and objects that possess integrity of location, design, setting, materials, workmanship, feeling, and association, and:

A. That are associated with events that have made a significant contribution to the broad patterns of our history; or

B. That are associated with the lives of significant persons in our past; orC. That embody the distinctive characteristics of a type, period, or

method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction; or

D. That have yielded, or may be likely to yield, information important in history or prehistory.

Criteria Considerations

Ordinarily the following shall not be considered eligible for the National Register:

•Cemeteries•Graves of historical figures•Structures that have been moved from their original locations •Properties primarily commemorative in nature•Birthplaces•Properties owned by religious institutions or properties used for religious purposes•Reconstructed historic buildings •Properties that have achieved significance within the last 50 years

However, such properties may qualify if they are integral parts of districts that do meet the criteria or if they fall within

the following categories:

a. A religious property deriving primary significance from architectural or artisticdistinction or historical importance; orb. A building or structure removed from its original location but which is primarily significant for architectural value, or which is the surviving structure most importantly associated with a historic person or event; orc. A birthplace or grave of a historical figure of outstanding importance if there is no other appropriate site or building associated with his or her productive life; ord. A cemetery that derives its primary importance from graves of specific persons of transcendent importance, from age, from distinctive design features, or fromrepresentation of a specific historic event; ore. A reconstructed building when accurately executed in a suitable environment andpresented in a dignified manner as part of a restoration master plan, and when no otherbuilding or structure within the same association has survived; orf. A property primarily commemorative in intent if design, age, tradition, or symbolic value has invested it with its own exceptional significance; org. A property achieving significance within the last 50 years if it is of exceptionalimportance.

How is a property nominated to the National Register? 1

The process varies slightly from state to state.

Properties are nominated to the National Register by the State Historic Preservation Office (SHPO) or by the Federal Preservation Officer (FPO) for properties under Federal ownership or control.

Registration forms are prepared by private individuals or paid consultants.

Certified Local Government Boards or Commissions with jurisdiction over the property must review and comment on the nomination before it is submitted to SHPO.

How is a property nominated to the National Register? 2

During the time the proposed nomination is reviewed by the SHPO, property owners and local officials are notified of the intent to nominate.

Local officials and property owners are given the opportunity to comment on the nomination and owners of private property are given an opportunity to object to or concur with the nomination.

If the owner of a private property, or the majority of owners for a property or district with multiple owners, objects to the nomination, the SHPO may forward the nomination to the National Park Service for a determination of eligibility.

Without formally listing the property in the National Register, the National Park Service then determines whether the property is eligible for listing.

If the property is eligible, the Advisory Council must be afforded the opportunity to comment on any Federal project that may affect it.

How is a property nominated to the National Register? 2

The registration form is then submitted to a State review board, composed of professionals in the fields of American history, architectural history, architecture, prehistoric and historic archeology, and other related disciplines.

The review board makes a recommendation to the SHPO either to approve the nomination if, in the board’s opinion, it meets the National Register criteria, or to disapprove the nomination if it does not.

If the review board and the SHPO agree on the eligibility of the property (and the owner has not objected to the nomination), then the nomination is forwarded to the National Park Service to be considered for listing.

What are the benefits and restrictions of listing? 1

In addition to honorific recognition, listing in the National Register results in the followingbenefits for historic properties:

•Consideration in planning for Federal, federally licensed, and federally assisted projects;

•Section 106 of the National Historic Preservation Act of 1966 requires that Federal agencies allow the Advisory Council on Historic Preservation an opportunity to comment on all projects affecting historic properties either listed in or determined eligible for listing in the National Register.

The Advisory Council oversees and ensures the consideration of historic properties in the Federal planning process.

Eligibility for certain tax provisions;

•Owners of properties listed in the National Register may be eligible for a 20% investment tax credit for the certified rehabilitation of income-producing certified historic structures such as commercial, industrial, or rental residential buildings.

•This credit can be combined with a straight-line depreciation period of 27.5 years for residential property and 31.5 years for nonresidential property for the depreciable basis of the rehabilitated building reduced by the amount of the tax credit claimed.

•Federal tax deductions are also available for charitable contributions forconservation purposes of partial interests in historically important land areas or structures.

•Consideration of historic values in the decision to issue a surface mining permit where coal is located in accordance with the Surface Mining Control Act of 1977.

What are the benefits and restrictions of listing? 2

(If available) qualification for Federal historic preservation grant funds* (*Historic Preservation Programs for private building owners has not been funded since approximately 1984.

If no federal money is involved in project, owners of private property listed in the National Register are free to maintain, manage, or dispose of their property as they choose according to local code and ordinance.

What are the benefits and restrictions of listing? 3

How long does the nomination process take?

Varies from state to state, depending on when state committee meets which reviews and makes recommended changes.

Corrections or changes are the responsibility of the owner, sponsor or author.

Once the corrections or changes are complete the nomination may be considered at the next meeting.

Once a nomination has been approved the process varies but in many states, SHPO staff try to send approved and corrected nominations to Washington within 30 days of receipt.

Upon submission to the National Park Service, a decision on whether to list the property is made within 45 days of the date NPS logged it in.

Because legal issues may be involved, schedules are fairly strict.

How do you know if there are National Register Eligible Sites in an Area of Potential Effect (APE)?

Literature and Field Research

Who does the Research?Qualified individuals under Secretary of Interior Standards (36

CFR 61):

HistoryThe minimum professional qualifications in history are a graduate degree in history or closely related field; or a bachelor's degree in history or closely related field plus one of the following:1. At least two years of full-time experience in research, writing, teaching, interpretation, or other demonstrable professional activity with an academic institution, historical organization or agency, museum, or other professional institution; or2. Substantial contribution through research and publication to the body of scholarly knowledge in the field of history.

Archeology

The minimum professional qualifications in archeology are a graduate degree in archeology, anthropology, or closely related field plus:

1. At least one year of full-time professional experience or equivalent specialized training in archeological research, administration or management;

2. At least four months of supervised field and analytic experience in general North American archeology; and

3. Demonstrated ability to carry research to completion. In addition to these minimum qualifications, a professional in prehistoric

archeology shall have at least one year of full-time professional experience at a supervisory level in the study of archeological resources of the prehistoric period.

A professional in historic archeology shall have at least one year of full-time professional experience at a supervisory level in the study of archeological resources of the historic period.

Architectural History

The minimum professional qualifications in architectural history are a graduate degree in architectural history, art history, historic preservation, or closely related field, with coursework in American architectural history; or a bachelor's degree in architectural history, art history, historic preservation or closely related field plus one of the following:

1. At least two years of full-time experience in research, writing, or teaching in American architectural history or restoration architecture with an academic institution, historical organization or agency, museum, or other professional institution; or

2. Substantial contribution through research and publication to the body of scholarly knowledge in the field of American architectural history.

Architecture

The minimum professional qualifications in architecture are a professional degree in architecture plus at least two years of full-time experience in architecture; or a State license to practice architecture.

Historic Architecture

The minimum professional qualifications in historic architecture are a professional degree in architecture or a State license to practice architecture, plus one of the following:1. At least one year of graduate study in architectural preservation, American architectural history, preservation planning, or closely related field; or 2. At least one year of full-time professional experience on historic preservation projects.Such graduate study or experience shall include detailed investigations of historic structures, preparation of historic structures research reports, and preparation of plans and specifications for preservation projects.

CRM Firms: The Good, the Bad, and the Ugly

•Necessary staff to carry out the work

•Necessary facilities to carry out the work

•Necessary equipment to carry out the work

•PI in the field?

Scopes of Works, RFP/RFBs, Proposals and Contracts

SoWs outline APE, what level of work needs to be done, expectations, and limitations.

Request for Proposals or Bids are sent out by organization doing the project or their delegate

You offer what you will do to meet the SoW (RFP only), at what cost, and at what date (both RFP and RFB)

Contracts are legal documents that often outline the SoW, but may include a variety of other matters required by agency or organization.

Don’t screw up!

Scopes of Work

Who generates them?

Consultation

Stakeholders

Agency

SHPO

Negotiation with SHPO & Agency

Memoranda of Understanding (MOU) or Agreement (MoA)?

Preparing a Proposal/Bid

The most difficult and dangerous part of CRM

Ethical considerations

“But I’ve got mouths to feed” issues

Low-ball bidding

Meeting the contract specifications

Research Designs

Even the smallest project should have one.

As complex or simple as needed

Should tie into some research questions beyond inventory

Should be linked to SoW items where possible