Better Preservation Solutions through Early Coordination of Section 106, Section 4(f) and NEPA

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1 Better Preservation Solutions through Early Coordination of Section 106, Section 4(f) and NEPA Carol Legard, FHWA Liaison TRB Environment and Energy Research Conference Raleigh, June 9, 2010 Photo credit: Vito Palmisano courtesy the Michigan Economic Development Corporation ADVISORY COUNCIL ON HISTORIC PRESERVATION PRESERVING AMERICA S HERITAGE

2 SECTION 106 OF THE NHPA The section 106 process seeks to accommodate historic preservation concerns with the needs of Federal undertakings through consultation 6/4/2010 ADVISORY COUNCIL ON HISTORIC PRESERVATION 2

3 36 CFR (f) Consultation means the process of seeking, discussing, and considering the views of other participants, and where feasible, seeking agreement with them regarding matters arising in the Section 106 process. Port Angeles (Washington) Graving Dock consultation meeting 6/4/2010 ADVISORY COUNCIL ON HISTORIC PRESERVATION 3

4 THE SECTION 106 PROCESS 1. INITIATE the process Determine undertaking Notify SHPO/THPO Identify Tribes and Other Consulting Parties Plan to involve the public No undertaking/ potential to cause effects? 2. IDENTIFY historic properties Determine APE Identify historic properties Consult with SHPO/THPO, Tribes, and Other Consulting Parties Involve the public No historic properties present/affected? 3. ASSESS adverse effects Apply criteria of adverse effect Consult with SHPO/THPO, Tribes, and Other Consulting Parties Involve the public No historic properties adversely affected? 4. RESOLVE adverse effects Avoid, minimize, or mitigate adverse effects Notify ACHP Consult with SHPO/THPO, Tribes, and Other Consulting Parties Involve the public Agreement (MOA)/PA) or Council Comment 6/4/2010 ADVISORY COUNCIL ON HISTORIC PRESERVATION 4

5 Overlapping Goals & Requirements Section 106 Consider effects on historic properties Focus on Consultation to resolve adverse effects Section 4(f) of the DOT Act Avoid unnecessary impacts to 4(f) resources: historic sites, parks, and nature preserves Requires review by agencies with jurisdiction NEPA Broad, multi-disciplinary analysis of impacts to the human environment (including historic properties) Goals are informed decision-making, public involvement and transparency

6 Divergence Section 106 Section 4(f) NEPA historic properties (listed or eligible for listing in the National Register of Historic Places publicly owned public parks, recreation areas, and wildlife or waterfowl refuges, or any publicly or privately owned historic site listed or eligible for listing on the National Register of Historic Places Human environment, including cultural - broadly defined 6/4/2010 ADVISORY COUNCIL ON HISTORIC PRESERVATION 6

7 Divergent Definitions Section 106 Consulting Parties: Role is defined by regulations (36 CFR 800.2) Federal agency may exclude those who do not meet the definition from Section 106 consultation NEPA Stakeholders: Not defined by regulations Section 6002 requires invitation to resource agencies, SHPOs, and Indian tribes to be participating agencies 6/4/2010 ADVISORY COUNCIL ON HISTORIC PRESERVATION 7

8 Overlap and Divergence Section 106 Consultation: Seeking agreement with consulting parties Consulting parties influence federal decisionmaking The public and consulting parties are the experts on historic properties NEPA Public Involvement: Provide notice to the public Inform those who may be interested or affected Comments of the public may or may not influence federal decision-making Relies on the opinion of professional experts 6/4/2010 ADVISORY COUNCIL ON HISTORIC PRESERVATION 8

9 CONSULTATION & COLLABORATION IN PROJECT DEVELOPMENT 6/4/2010 ADVISORY COUNCIL ON HISTORIC PRESERVATION 9

10 CONTEXT SENSITIVE SOLUTIONS A VIRGINIA EXAMPLE

11 Timing Section 106 and NEPA Key Timing Objectives: Initiate Section 106 consultation during NEPA scoping Make a reasonable and good faith effort to complete the identification and evaluation of historic properties and assessment of effects prior to or concurrent with identifying a preferred alternative for the undertaking Complete the Section 106 process prior to issuing a NEPA decision (CE, FONSI, or ROD) 6/4/2010 ADVISORY COUNCIL ON HISTORIC PRESERVATION 11

12 SECTION 106 AND NEPA COORDINATION Section 106 NEPA Scoping Prepare Preliminary EA/ Draft EIS Public Comment Period Prepare EA/ Final EIS Publish FONSI/ ROD INFORMATION SHARING Proceed with Action 6/4/2010 ADVISORY COUNCIL ON HISTORIC PRESERVATION 12

13 Opportunities for Efficiency

14 NEPA in lieu of Section 106 Added to the ACHP s regulations in 1999 Not widely used, although some agencies use it often Does not apply to Categorical Exclusions A CE essentially does not have a NEPA process to use in lieu of the Section 106 process.

15 NEPA IN LIEU OF SECTION CFR 800.8(c) NEPA Scoping: Notify SHPO/THPO and ACHP of intent to use NEPA for Section 106 procedures Initiate consultation with SHPO/THPO, Indian Tribes, and Consulting Parties on historic preservation concerns Preliminary EA/Draft EIS: Continue consultation on historic preservation concerns Identify and evaluate historic properties Assess adverse effects on historic properties Resolve adverse effects on historic properties Prepare EA/Draft EIS to meet standards defined at 36 CFR 800.8(c)(1) Section 106 Findings to include in NEPA documents: No undertaking/ potential to cause effects? No historic properties present/affected? No historic properties adversely affected? Public/Consulting Parties Comment Period Final EIS and ROD (including Section 106 stipulations) or Section 106 MOA/PA FONSI and Section 106 MOA/PA Agency Action 1/8/2010 ADVISORY COUNCIL ON HISTORIC PRESERVATION 1

16 Programmatic Agreements 36 CFR (b) Allows flexibility in Section 106 review To coordinate Section 106 and NEPA To streamline or broadly exempt certain types of projects from review To create standard treatments to avoid or mitigate adverse effects To document consultation protocols with SHPO, Tribes and others.

17 Coordinate Section 4(f) & 106 Use Section 4(f) analysis to document consideration of alternatives required in Section 106; Use the 106 consulting parties to improve the final (4) report.

18 Use Section 106 results to document a finding of de minimis impact under Section 4(f). 6/4/2010 ADVISORY COUNCIL ON HISTORIC PRESERVATION 18

19 Tools for Better Coordination Early: Context Sensitive Solutions Earlier: Section 6002 of SAFETEA-LU: requires involvement of resource agencies, SHPOs and Indian tribes in early stages of NEPA; Earliest: Integrated Planning