The National Academies

NCHRP 25-65 [Anticipated]

Successful Approaches in Preparing Convincing Section 106 Effect Determinations

  Project Data
Source: AASHTO Committee on Environment and Sustainability
Funds: $150,000
Staff Responsibility: Ann M. Hartell
Fiscal Year: 2022

This project has been tentatively selected and a project statement (request for proposals) is expected to be available on this website in January 2022. The problem statement below will be the starting point for a panel of experts to develop the project statement.

Concluding Section 106 (of the National Historic Preservation Act of 1966) has ramifications for other environmental requirements in transportation project development including National Environmental Policy Act (NEPA), Section 4(f) analyses, and environmental permits. The outcome of the Section 106 consultation process is an effect determination, i.e., what effect will a federal action have on historic properties. Federal regulation (36 CFR 800) makes a distinction between undertakings that adversely affect historic properties and those that do not. The basis for this distinction is whether a federal action will alter or diminish those properties that make a property eligible for listing in the National Register of Historic Places. In other words, not every alteration or change constitutes an adverse effect from a Section 106 perspective. Conducting an analysis of potential effects and effectively crafting a no-effect or no-adverse effect determination requires both a detailed understanding of regulatory definitions and specialized skill in communication.

While Section 106 training is available to state department of transportation (DOT) cultural resources practitioners, it often covers the general requirements of law and regulation, focuses on the nuances of writing Memoranda of Agreement, or specialized topics like tribal consultation. Further, many Section 106 practitioners at both state DOTs and their State Historic Preservation Officer (SHPO) partners may have imprecise, colloquial understanding of the regulatory definitions involved in making effect determinations. At the same time, many skilled and experienced Section 106 practitioners are reaching the end of their careers and newer employees may not possess the knowledge, skill, and ability to develop robust effect determinations.

The objective of this research is to identify, analyze, and document examples of accurate, high-quality, no-effect, and no-adverse effect determinations. This will be accomplished by identifying the qualities and characteristics of accurate, high-quality determinations from state DOTs and synthesizing the findings in a manner that is implementable among cultural resources practitioners.
Potential tasks include to:

Define the regulatory basis and definition for effect, especially pertaining to alteration vs. diminishment of historic characteristics, tests of integrity, and any situations where a certain effect determination is prescribed.
b.       Identify and collect examples of no-effect and no-adverse-effect determinations developed by state DOTs and concurred with by the state DOT’s respective SHPO.
c.       Interview cultural resources practitioners for recommendations about making effect determinations.
d.       Synthesize the aspects of the examples, especially pertaining to the basis of the no-effect or no-adverse-effect finding.

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