ACHP FHWA Advanced Seminar

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ACHP - FHWAAdvanced Seminar

• Reaching Successful Outcomes
• in Section 106 Review

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Advanced Seminar

• This advanced seminar
• Focuses on Section 106
• Highlights tools for successful management of the
  Section 106 process
• Consultation
• Appropriate resolution of adverse effects
• Constructing Section 106 agreements
• Is a conversation not a lecture

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Logistics

• One day - 830 am to 430 pm
• Morning and afternoon breaks
• Lunch 1200 pm to 100 pm
• Please turn your cell
• phones off or to vibrate

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Participant Handbooks

• Course outline
• Course slides
• Handouts
• Course evaluation

• Guidance
• Program alternatives
• Agreements
• Templates
• Examples

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REAL Life Challenges
Lift Bridge, Stillwater, MN
Impasse stalls project 12 years!
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REAL Life Challenges
Failure to Consult Indian Tribes Nearly Derails
Project!
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REAL Life Challenges
Court Grants Injunction. Project Stopped!
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Introductions

• Please tell us
• Your name
• Your agency
• Your biggest Section 106 challenge

• Before we begin this family meeting, how about
  we go around and say our names and a little
  something about ourselves.

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Section 106 Principles

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Principle 1

• The Section 106 regulations are designed to
  provide a framework for problem solving

106
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Principle 2

• Historical values are public values, therefore
  public input is essential as agencies weigh these
  values along with mission needs

Photo, Kevin Cunningham, Delaware DOT
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Principle 3

• Section 106 encourages,
• but does not mandate, preservation

Building demolition - New Orleans, LA
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Principle 4

• Decisions are reached through consultation
• An open and active exchange of ideas
• Process of seeking, discussing and considering
  the views of other participants
• Where feasible, seek agreement

Ohio River Bridges Consultation -- KY
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Principle 5

• The federal agency official makes final decisions
  and is responsible for the success of the Section
  106 process

U.S. DOT Headquarters Washington, DC
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Section 106 Participants

• Federal agency official
• ACHP
• Consulting Parties
• By right
• By agency invitation
• The public

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Section 106 Steps

• Initiate Consultation
• Identify Historic Properties
• Assess Adverse Effects
• Resolve Adverse Effects

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Context Sensitive Solutions (CSS)

• Collaborative, interdisciplinary approach
• Involves all stakeholders
• Considers the total context
• Early and ongoing consultation
• Seeks consensus

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Opportunities for Better Coordination

• Begin early
• Plan for
• Coordination between NEPA, Section 106, 4(f), and
  CSS
• Consultation
• Public involvement

SAFETEA-LU (6002)
Section 106
Context Sensitive Solutions
Planning Environmental Linkages
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Section 106 Refresher

• ANY QUESTIONS?

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Effective Problem Solving Through Consultation
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Purpose of Consultation

• Active exchange of ideas and information
• Seek, discuss and consider others views
• Seek agreement

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Quality Consultation Begins with Quality
Information
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Engage Consulting Parties Early and Often
U.S. 35 consultation, WV
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Do project opponents have a role in consultation?
Protesting Airport Expansion Hanscom, MA
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You may be headed for trouble.

• During consultation meetings, the federal agency
  responsible for Section 106 compliance is nowhere
  to be found!

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Find the Federal Agency!
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You may be headed for trouble

• when the federal agency has failed to define the
  area of potential effect!

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Set Geographic Limits With the APE
Defining the APE is essential because it defines
the geographic scope of Section 106.
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You may be headed for trouble

• when at the first consultation meeting, the
  project consultant hands out a Section 106
  agreement that is ready for signature!

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Follow the Steps
Resolve
Assess Effects
More specific
Refine APE
Identify Historic Properties
Initiate Consultation
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You may be headed for trouble

• when the agencys first contact with a
  consulting party is to inform them that human
  remains have been discovered!

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Understand Cultural Differences
Mount Shasta, CA
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You may be headed for trouble

• when the federal agency thinks that satisfying
  Section 106 means doing whatever the SHPO says!

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The Federal Agency Decision Maker
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You may be headed for trouble

• when one or more of the consulting parties keeps
  raising the same issues over and over again!

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• The best way to persuade people is with your
  earsby listening to them.
• Dean Rusk

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You may be headed for trouble

• ...when one or more of the consulting parties
  walks out of the consultation meeting!

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Active Management of Consultation

• Effective management of consultation requires
• Understanding the nature of the parties
  differing interests
• Knowing when differences are leading to a dispute
  that may disrupt the project development process
• Knowing how to address disputes

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Collaborative Problem Solving

• Be an active listener
• Focus on interests, not positions
• Be open, flexible and sensitive to others
  interests
• Do your homework
• Be willing to collaborate
• Demonstrate respect

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Plan a Comprehensive Approach to Consultation

• Clarify objectives, time and resources available,
  interests and information needs
• Adopt a consultation protocol
• Identify opportunities to encourage collaborative
  problem solving
• Determine when and how to elevate disputes

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Develop a Consultation Protocol

• Clarify roles and responsibilities
• Establish a meeting protocol
• Identify milestones
• Manage time
• Establish dispute resolution procedures

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Exercise Preparing for the First Consultation
Meeting
Winkworth, Country Estates of River Road Historic
District. Photo courtesy of the Cultural
Landscape Foundation
Riverfront at Louisville, KY
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Determining Appropriate Solutions under Section
106
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Resolving Adverse Effects

• When dealing with adverse effects

Avoid
Minimize
Mitigate
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Resolution of Adverse Effects

• Seeks to redress or offset adverse effects to
  historic properties
• Should result from collaboration
• Creative approaches encouraged

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Determining Appropriate Mitigation

Bridge deck, Laurel Raceway, MD
Bridge pier near Wright-Patterson AFB, OH
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What is Appropriate and in the Public Interest?

• Significance of historic property
• Values held by others
• Cost of mitigation and project schedule
• Benefits
• Educational potential
• Indirect effects to nearby historic properties

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Context Sensitive Solutions
Designing to respect the historic setting
Going-to-the-Sun Road, MT Photo, National Park
Service
State Route 200, CT
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Progressive Approaches

• A comprehensive approach to visual effects

St. Croix River Crossing Project Stillwater, MN
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Standard Approachesto Resolution

• Documenting properties that will be lost

Historic Skyland Plan Shenandoah National Park, VA
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Archaeological DataRecovery Plans
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Progressive Approaches

• Alternatives to data recovery

Abington Plantation Washington, DC
Kingsmill Resort - Williamsburg, VA
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Progressive Approaches
Apple Barn Archaeological Site -- Blount County,
TN
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Standard Approachesto Resolution

• Providing public interpretation

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Progressive Approaches
Creative outreach opportunities
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Progressive Approaches
Innovative public archaeology
Delaware Department of Transportation
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What is appropriate and in the public interest?

• Relocating historic properties

Bottomley House University of Richmond, VA
Rettew Mill Road bridge, PA
Lighthouse - Cape Hatteras, NC
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What is appropriate and in the public interest?
Indiana Historic Bridge Marketing Program
Bridge park Calhoun County, MI
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What is appropriate and in the public interest?
Alternative uses
Walnut Street Bridge Chattanooga, TN
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What is appropriate and in the public interest?

• Preserving some historic structures while
  allowing removal of others

Washington, DC
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Progressive Approaches

• Seek solutions that
• Accommodate the needs of all parties
• Serve the public interest
• Promote protection of historic properties

Relocating buildings Ybor City, FL
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Progressive Approaches
Photo taken by Bobak Ha'Eri. February 25, 2006

• Neighborhood revitalization

Street Festival - Ybor City, FL Interstate
Highway 75 Project
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Progressive Approaches

• Resolving direct and indirect impacts

Verizon Center Washington, DC
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Progressive Approaches

• Resolving direct and indirect impacts

Historic street vistas and revitalized buildings
near the Verizon Center
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Progressive Approaches
Establishing a preservation fund
Amelia Earhart Bridge, KS-MO Photo, Historic
Bridge Foundation
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Progressive Approaches

• Targeted resolution
• Develop/implement state preservation plan
  components
• Close information gaps for better decision-making
• Resolve specific preservation problems
• Develop contexts, inventories, resource bases,
  syntheses
• Fund museums, exhibitions, historic bridge parks

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• Preparing Effective Section 106 Agreements

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Section 106 Agreements

• Govern the undertaking or program and all of its
  parts
• Record the outcome of consultation
• Obligate signatories to carry out terms
• Are legally binding and enforceable

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MOAs and PAs

• PAs are appropriate for
• Programs
• Delegation of authority
• Multiple or complex undertakings
• Undetermined effects
• Tailored Section 106 process
• Routine management

• MOAs are appropriate to
• Record agreed upon resolution for a specific
  undertaking

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The Four Parts of aSection 106 Agreement

• Title
• Preamble (whereas clauses)
• Stipulations
• Execution clause and signatures

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The Federal Agencyand Consulting Parties

• Required Signatories
• execute
• amend
• terminate

• Invited Signatories
• amend
• terminate
• Concurring Parties

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Ensuring Successful Agreement Documents

• Get the support of agency leadership
• Keep it simple
• Draft the agreement as consultation proceeds
• Use a cold reader for review

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Section 106 AgreementPreparation Checklist

• Is the entire undertaking and the nature of the
  federal involvement described?

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Section 106 AgreementPreparation Checklist

• Have the historic properties affected by the
  undertaking been identified?

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Section 106 AgreementPreparation Checklist

• Are the agreement stipulations preceded by a
  clear statement that the federal agency shall
  ensure that these terms will be carried out?
• FHWA shall ensure that the following stipulations
  are carried out

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Section 106 AgreementPreparation Checklist

• Are all of the provisions agreed upon during
  consultation included in the agreement?

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Section 106 AgreementPreparation Checklist

• Are the roles and responsibilities of Section 106
  participants identified?
• Identify the responsible federal agency
• Identify lead agency and the role of delegating
  agencies
• Identify the roles of consulting parties
• AVOID USING THE PASSIVE VOICE
• Parties assigned duties must sign the agreement

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Whats Wrong withthis Stipulation?

• An adequate number of professional quality black
  and white 35 mm photographs to show all exterior
  elevations, streetscape photograph, detailed
  photographs of all areas to be impacted by the
  adverse effect (including architectural
  trim/decorations) shall be submitted. A similar
  number of 35 mm color slides shall also be
  submitted. All prints, negatives and slides
  shall be labeled and submitted in archivally
  stable protective storage pages.

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Section 106 AgreementPreparation Checklist

• Have time frames for initiation and
  implementation been established and coordinated?
• The Regional Water Authority (RWA) shall
  coordinate with the Eli Whitney Museum concerning
  the salvage of pertinent equipment and materials
  from the Lake Whitney Water Treatment Plant for
  potential educational and/or exhibit related
  purposes.

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Section 106 AgreementPreparation Checklist

• Have all terms and references been used correctly
  and accurately?

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Whats Wrong withthis Stipulation?

• Report Contents and Format. Upon completion of
  the Class II inventory field work, a professional
  quality report will be prepared. The report
  should consist of the general categories outlined
  below. Flexibility is provided to ensure that the
  report focuses on the pertinent results and
  addresses current needs and interests.

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Section 106 AgreementPreparation Checklist

• Has the entire undertaking and all of its effects
  been addressed?

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Section 106 AgreementPreparation Checklist

• Is the process for decision-making described in a
  complete, logically organized way?

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Whats Wrong withthis Stipulation?

• At any time during the implementation of the
  measures stipulated herein should an objection to
  any such measure or manner of implementation be
  raised, the agency shall take the objection
  into account and consult as needed with the SHPO
  and the ACHP to resolve the objection.

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Section 106 AgreementPreparation Checklist
Are all needed administrative provisions included,
and are they sufficient to cover
all contingencies?

• Must Include
• Duration
• Amendment
• Termination

• Should Include
• Monitoring reporting
• Discoveries
• Emergencies
• Dispute resolution
• Professional qualifications and applicable
  standards

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ACHP - FHWAAdvanced Seminar

• Return to the Section 106 challenge that you
  identified this morning.

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Managing the Section 106 Process

• Timing
• Changing the status quo
• Communicating across cultures and disciplines
• Reaching consensus on what is reasonable and in
  the public interest
• Appreciating established roles and
  responsibilities

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Where to go for help

• FHWA
• MaryAnn Naber
• Federal Preservation Officer
• FHWA
• 1200 New Jersey Ave. SE
• Washington, DC 20590
• 202-366-2060
• http//www.environment.fhwa.dot.gov/histpres/index
  .asp

• ACHP
• Office of Federal Agency Programs
• 1100 Pennsylvania Ave., NW, 803
• Washington, DC 20004
• 202-606-8505
• www.achp.gov
• CD Reference Guide