Difference between revisions of "Category:135 The Section 106 Process"

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|[http://www.dnr.mo.gov/forms/780-1718_inst.pdf Guide to the Completion of the SHPO Section 106 Survey Memo]
 
|[http://www.dnr.mo.gov/forms/780-1718_inst.pdf Guide to the Completion of the SHPO Section 106 Survey Memo]
 
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|'''Easily Printable Version of EPG 135.1'''
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|'''Figure'''
 
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|[[media:135 Section 106 Procedures.pdf|Section 106 Procedures for LPAs]]
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|[[media:135.doc|Fig. 135, Generalized Flowchart of the Section 106 Process for LPAs]]
 
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|'''Easily Printable Version of EPG 135.2'''
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|'''Quick Guide for EPG 135.2'''
 
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|[[media:135.2.pdf|Section 106 Procedures for MoDOT Projects]]
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|[[media:135.2 quick 2014.pdf|Section 106 (Cultural Resources) Compliance]]
 
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Section 106 Process guidance for Local Public Agencies is presented in [[#135.1 The Section 106 Process for Local Public Agencies|EPG 136.1]] while guidance for MoDOT staff is summarized in [[#135.2 The Section 106 Process for MoDOT Projects|EPG 136.2]].
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Section 106 Process guidance for Local Public Agencies is presented in [[#135.1 The Section 106 Process for Local Public Agencies|EPG 135.1]] while guidance for MoDOT staff is summarized in [[#135.2 The Section 106 Process for MoDOT Projects|EPG 135.2]].
  
 
Section 106 of the National Historic Preservation Act of 1966 requires potential impacts to significant cultural resources from any federally funded or permitted project to be considered.  Cultural resources include archaeological sites, buildings, structures (e.g., bridges), objects or districts.  The significance of a cultural resource is evaluated by applying a specific set of criteria that are set forth by the [http://www.nationalregisterofhistoricplaces.com/ National Register of Historic Places].  Cultural resources that meet the criteria of eligibility for listing on the National Register are referred to as “historic properties.”  Failure to obtain Section 106 clearance could jeopardize federal funding and permits for a project.  Section 106 encourages, but does not mandate, the preservation of historic properties.  The goal of Section 106 is to ensure that preservation values are factored into the planning process for all federally funded or permitted projects.  
 
Section 106 of the National Historic Preservation Act of 1966 requires potential impacts to significant cultural resources from any federally funded or permitted project to be considered.  Cultural resources include archaeological sites, buildings, structures (e.g., bridges), objects or districts.  The significance of a cultural resource is evaluated by applying a specific set of criteria that are set forth by the [http://www.nationalregisterofhistoricplaces.com/ National Register of Historic Places].  Cultural resources that meet the criteria of eligibility for listing on the National Register are referred to as “historic properties.”  Failure to obtain Section 106 clearance could jeopardize federal funding and permits for a project.  Section 106 encourages, but does not mandate, the preservation of historic properties.  The goal of Section 106 is to ensure that preservation values are factored into the planning process for all federally funded or permitted projects.  
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==135.1 The Section 106 Process for [[:Category:136 Local Public Agency (LPA) Policy|Local Public Agencies]]==
 
==135.1 The Section 106 Process for [[:Category:136 Local Public Agency (LPA) Policy|Local Public Agencies]]==
Additonal information is posted on the [http://www.dnr.mo.gov/shpo/sectionrev.htm Missouri State Historic Preservation Office’s (SHPO) website].
 
  
===Step 1. Determine Need===
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Additional information on Section 106 is provided in [[136.6 Environmental and Cultural Requirements#136.6.4.1 Section 106 (Cultural Resource) Compliance|EPG 136.6.4.1 Section 106 (Cultural Resource) Compliance]].
  
'''The local agency must solicit SHPO's opinion on the need for a cultural resource survey by submitting a Section 106 Project Information Form.  The form is available on the [http://www.dnr.mo.gov/shpo/sectionrev.htm DNR web page].'''
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'''Step 1, Determine Need for Cultural Resource Investigations'''
       
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:The State Historic Preservation Office (SHPO) must be consulted on the need for a cultural resource survey.  The Federal Highway Administration (FHWA) or Missouri Department of Transportation (MoDOT) may also be consulted on an as needed basis but in almost all cases, the information for the SHPO can be prepared by local agency staff.  The following data should be provided to the SHPO:
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::'''A.''' Section 106 Project Information Form.
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If the project does not meet the criteria for a project with “No Potential to Cause an Adverse Effect” as defined by the Memorandum of Understanding between the Missouri Division of the Federal Highway Administration and MoDOT, the LPA should solicit [http://www.dnr.mo.gov/shpo/sectionrev.htm State Historic Preservation Office’s] (SHPO) opinion on the need for a cultural resource survey by submitting a Section 106 Project Information Form to SHPO. Below are the steps to follow in the Section 106 process.
  
::'''B.''' If a bridge is present, provide information on the bridge’s builder and the year built along with original 3 in. X 5 in. or larger photographs showing two views (only for truss, stone arch, and concrete arch bridges more than 50 years old). The form is not required for bridges less than or equal to 50 years old, but photos are desired.
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:'''A.''' [http://dnr.mo.gov/forms/780-1027-f.pdf Section 106 Project Information Form].  
  
::'''C.''' 7.5 minute (15 minute if 7.5 minutes unavailable) USGS topographic map showing the location of the project and borrow sites.  Realignment of roadway should be shown if applicable.
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:'''B.''' If a bridge is present, provide information on the bridge’s original builder and the year built along with 3 in. x 5 in. or larger photographs (600 dpi if digital; photocopies are not acceptable) showing two views (side and end views), Google Streetview and similar images are NOT acceptable to the SHPO. SHPO will also accept digital photos on a CD, especially if there are lots of images of both bridges and/or buildings. Be sure to include the bridge number and feature crossed on the project information form!
  
::'''D.''' Project plans if readily available.
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:'''C.''' Provide clear photographs (see "B", immediately above) of all buildings in the project area (see description in Step 2a.A. below), keyed to a project map. Include a brief history of buildings including construction dates (if known) and building uses
  
:'''Contractor Furnished Borrow'''
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:'''D.''' A relevant portion of a United States Geological Survey (USGS) 7.5’ Topographic Quadrangle Map (1:24,000 scale) showing the location of the project and borrow sites is required. Maximum project (and/or borrow) limits should be delineated on the map, along with realignment of roadway if applicable. This map should show a buffer of about one mile beyond the limits of rural projects. An additional “close-up” view map of the project area may be necessary for small projects where the details are difficult to distinguish or for urban areas to better show adjacent buildings (aerial images from websites such as [http://maps.google.com/maps?hl=en&tab=wl Google Maps] and [http://www.bing.com/maps/default.aspx?v=2&rtp=~&trfc=1 Bing Maps] can be used for this supportive information). USGS 7.5’ topographic maps can be downloads from the University of Missouri's [http://ims.missouri.edu/moims2008/ CARES Map Room].
  
:Borrow pits also need to be evaluated for possible National Register eligible archaeological resources. The local agency should obtain a 7.5 minute topographic map that shows the size and location of the borrow site. The local agency must send this map to the SHPO its review of the need to conduct a cultural resource survey.
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If there are any questions about the information that is going to be submitted, the SHPO should be called for guidance. Sending in inadequate information could result in a SHPO response of “Your submittal did not include adequate information to review your project …”, which will require a resubmittal with the correct information. The SHPO review process does not officially begin until they have an acceptable submittal. The SHPO 30-day review process starts over each time additional information is submitted.
  
===Step 2. SHPO Survey Recommendation===
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'''SHPO reviews the submitted project information and offers an opinion as to whether further cultural resource investigations are required. '''
  
'''SHPO reviews project information and offers opinion as to whether further cultural resource investigations are required.'''
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:'''A.''' SHPO reviews information and offers an opinion as to the need for a Cultural Resource Survey. SHPO has by law 30 calendar days to respond. If SHPO responds “no survey needed” or “no historic properties affected,” Section 106 requirements have been satisfied and no further Section 106 work is needed. The date of the SHPO letter would be used as the Section 106 compliance date.  
  
:'''A.''' SHPO reviews information from Step 1 and offers an opinion as to the need for a Cultural Resource Survey.  If SHPO responds “no survey needed” or “no historic properties affected,” Section 106 is complied with and no further Section 106 work is needed.
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:'''B.''' If SHPO recommends that a survey is necessary, a survey should be conducted using a cultural resource consultant or staff member (must meet the [http://www.nps.gov/history/local-law/arch_stnds_9.htm Secretary of Interior Standards]) to identify historical and/or archaeological resources that may be affected by the proposed project.  
  
:'''B.''' If the SHPO and the local agency agree that a survey is necessary, a survey should be conducted using a cultural resource consultant to identify historic and/or archaeological resources that may be affected by the proposed project.
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:'''C.''' If LPA does not agree with SHPO that a cultural resource survey is needed, FHWA shall be contacted to make a final determination on the need for a survey.  
  
:'''C.''' If local agency does not agree with the SHPO that a survey is needed, the FHWA must be contacted to make a final determination of need for a cultural resources survey.
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'''Step 2, Cultural Resource Investigations'''
  
===Step 3. Cultural Resources Survey===
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'''If the SHPO requests a Section 106 survey the LPA will need to hire a qualified [http://www.dnr.mo.gov/shpo/consultants.htm cultural resource consultant] or staff member to conduct the survey and to submit a report of their findings to the SHPO.'''
  
'''Local agency hires cultural resource consultant to conduct survey if necessary.  A report is submitted to the SHPO.'''
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:'''Step 2a, The Cultural Resource Survey'''
  
:'''A.''' Cultural resource surveys typically are limited to the proposed project right of way limits and borrow areas. Impacts to architectural resources may include a buffer outside the project right of way so indirect effects are considered.
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::'''A.''' Cultural resource surveys typically are limited to the area of potential effects (APE) (i.e., for archaeology, this is the maximum footprint of the project consisting of proposed and existing right of way, and permanent and temporary easements) and any off-site areas, if known (e.g., borrow, staging, wasting, etc.). For architectural resources, the APE may include the limits of the project plus a buffer around the project area so indirect effects of the project are considered (usually 50 ft. in urban settings and 100 ft. in rural settings). For archaeological resources, the APE is the maximum footprint of the project consisting of existing and new right-of-way, and temporary and permanent easements.
  
:'''B.''' Cultural resource survey reports should follow the SHPO “Guidelines for Contract Cultural Resource Survey Reports.”  However, surveys that do not identify cultural resources may be limited to a brief explanation of survey methodology and results, along with a 7.5 minute topographic map showing the survey area.
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::'''B.''' Reporting the results of the cultural resource survey should follow the SHPO [http://www.dnr.mo.gov/shpo/docs/MO_phase1_guide.pdf ''Guidelines for Phase I Archaeological Surveys and Reports'']. The standard method to submit the results is the [http://www.dnr.mo.gov/forms/780-1718.pdf Section 106 Survey Memo]. Directions in completing this memo are provided on [http://www.dnr.mo.gov/forms/780-1718_inst.pdf SHPO’s website]. Additional [http://dnr.mo.gov/shpo/archisurvey.htm SHPO guidance on requirements for architectural surveys] is posted on the SHPO website, including the [http://dnr.mo.gov/forms/780-2125-f.pdf Architectural/Historic Inventory Form] that should be used for buildings that are believed to be eligible for listing on the National Register of Historic Places.  
  
:'''C.''' The results of the cultural resources survey are submitted to the SHPO.
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::'''C.''' The Section 106 submittal will be reviewed and commented on by SHPO. SHPO has by law 30 calendar days to respond.  
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::1. If no cultural resources were identified, the SHPO usually will respond “no historic resources affected.”  The Section 106 process is complete and no further action is necessary.
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::2. If cultural resources were identified, their eligibility for the National Register must be determined.
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:The SHPO comments only apply to the project as submitted. Any changes to the project may require a supplemental submittal to SHPO regarding these changes (e.g., project limits, significant modifications to the nature of the project, etc.). Any subsequent communication with SHPO should include the Project Number assigned by SHPO to the original submittal.
  
::3. In some cases, additional field investigations may be required for the cultural resource consultant to determine resource eligibility.
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:'''Step 2b, Determination of Eligibility'''
  
===Step 4. Determination of Eligibility===
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:If cultural resources are present, the LPA, in consultation with SHPO and FHWA/MoDOT, determines whether a cultural resource meets the eligibility requirements of the National Register. A cultural resource professional may need to conduct additional investigations to evaluate the eligibility of some resources. The cultural resource professional will need to consult with the MoDOT Historic Preservation staff on the proposed testing plan for an archaeological site before implementing it.
  
'''If cultural resources are present, the local agency, in consultation with SHPO and FHWA, determines whether a cultural resource is eligible for the National Register of Historic Properties. A cultural resources consultant may need to conduct additional investigations to evaluate the eligibility of some resources.'''  
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::'''A.''' The SHPO is requested to concur or disagree with the National Register eligibility of a cultural resource. The cultural resource professional should provide an assessment of resource eligibility.   
  
:Readily available information should be used to determine National Register Eligibility of identified cultural resources. This information should consist of the results of the cultural resource survey, any subsequent investigations, or other available information such as pictures and available history of structures.
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::'''B.''' If SHPO, LPA, and FHWA/MoDOT agree that a cultural resource is not eligible for the National Register, the Section 106 process is complete. No further action is necessary.  
  
::'''A.''' The SHPO is requested to concur or disagree with the eligibility of a cultural resource.  The cultural resource consultant should provide an assessment of resource eligibility.  The SHPO requires the following documentation (if not previously submitted):
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::'''C.''' If SHPO, LPA, and FHWA/MoDOT agree that a cultural resource is eligible for the National Register, a determination of effect (Step 2c) is made next.
  
:::1. [http://www.dnr.mo.gov/forms/780-1718.pdf Section 106 Survey Memo].
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:'''Step 2c, Determination of Effect'''
  
:::2. For bridges, HPP Bridge Inventory Survey Form accompanied by 3 in. X 5 in. photographs, original construction date, and original builder.
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:If historically significant cultural resources are present, the LPA, FHWA/MoDOT, and SHPO will determine the effect of the project on each National Register eligible property (called a “historic property”). If the result of the survey is “adverse effect to a historic property” the LPA precedes with Steps 3 and 4. The Advisory Council on Historic Preservation (Council) must be notified of the adverse effect and be invited to participate in consultation for the development of a Memorandum of Agreement (MOA), through the submittal of an e106 form (see [http://epg.modot.org/index.php?title=136.6_Environmental_and_Cultural_Requirements#136.6.4.2_Section_4.28f.29_of_the_U.S._Department_of_Transportation_Act_of_1966_and_Section_6.28f.29_of_the_Land_and_Water_Conservation_Fund_Act_.28LWCFA.29_Properties EPG 136.6.4.1.2] for instructions and the LPA Project Checklist for Projects that have an Adverse Effect under Section 106).
  
:::3. 7.5 minute topographic map.
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:If the SHPO concurs with the results of the Section 106 Survey submittal being “no historic properties affected” or “no adverse effect to a historic property,” Section 106 compliance is completed. The date of the SHPO letter would be used as the Section 106 compliance date.  
  
:::4. Project plans if available.
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'''Step 3, Preparation of the Memorandum of Agreement'''
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:::5. Phase I and/or II archaeological report (for archaeological resources).
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::'''B.''' If SHPO, local agency, and FHWA agree that a cultural resource is eligible for the National Register, a determination of effect (Step 5) is made next.
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If historic properties will be adversely affected by the project, the LPA will coordinate with SHPO, MoDOT, FHWA and other appropriate consulting parties in preparation of a Memorandum of Agreement (MOA). Section 106 is not complete until an MOA is executed and the stipulations are completed.
  
::'''C.''' If SHPO, local agency, and FHWA agree that a cultural resource is not eligible for the National Register, the Section 106 process is complete. No further action is necessary.
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:'''A.''' The MOA process is started by the LPA’s preparation and submittal of a draft MOA and the e106 form updated to include consultation that may have occurred on the project since the Council notification occurred, and an Alternatives Analysis (for bridge projects). The documents are forwarded to MoDOT Historic Preservation for review and comment.  
  
::'''D.''' If SHPO, local agency, and FHWA disagree on the eligibility of a resource, the local agency should request the FHWA to contact the Keeper of the National Register for a definitive opinion.  This process can be lengthy (up to six months), so it should be avoided if possible. The keeper requires submittal of the following documentation:
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:'''B.''' An Alternatives Analysis must be developed.
  
:::1. Property (bridge name or number) name
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:'''C.''' When the MOA is satisfactory, MoDOT will inform the LPA, SHPO and FHWA that it is satisfactory. If the Council has responded, the LPA can begin the process of signing the MOA. The LPA should prepare a copy of the MOA for each signatory.
  
:::2. Location
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:'''D.''' If the adverse effects are to a Native American archaeological site, FHWA will provide a copy of the draft MOA and accompanying information to Indian tribes with historical interest in the project area or attach religious and cultural significance to the site to provide them the opportunity to participate in the consultation process.  
  
:::3. Classification (a highway bridge)
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:'''E.''' The LPA will send the signed MOA to the SHPO, using text similar to the sample letter and copy MoDOT and FHWA on the transmittal letter. The SHPO will sign the MOA and forward it to the FHWA for execution, copying MoDOT and the LPA on the transmittal letter.  The MOA is considered to be executed upon FHWA signature, who is the last party to sign the document (general signatory order is LPA, any other invited signatories, SHPO and then FHWA).
  
:::4. Ownership
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:'''F.''' Once the MOA is executed, MoDOT will prepare the Programmatic Section 4(f) evaluation for bridge projects and submit it to FHWA (see the LPA Project Process Checklist for Addressing Adverse Effects under Section 106 and “use” under
  
:::5. Requesting agency
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'''Step 4, Mitigation of Adverse Effect'''
  
:::6. Representation of structure or archaeological site in previous historic surveys, if any
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Following the execution of the MOA, the LPA will implement and fulfill the stipulations of the MOA. Ultimately, the SHPO must concur that the stipulations of the MOA have been satisfied.
  
:::7. Description of structure/archaeological site
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Following the execution of the MOA, the LPA will implement stipulations of the MOA to mitigate the adverse effects upon the historic property(ies). The following mitigation measures have been used on various projects:  
 
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:::8. Significance (based on SHPO eligibility determination)
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:::9. Bibliography (history of bridge or archaeological site in previous research)
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:::10. Geographical data/maps (show location)
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:::11. Photographs (attach one side view and one end view of bridge)
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:::12. Name of individual compiling documentation
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:::13. Phases I & II cultural resource report if available
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::If the Keeper finds that the resource is not eligible, the Section 106 process is complete.
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{|style="padding: 0.3em; margin-left:7px; border:2px solid #a9a9a9; text-align:left; font-size: 95%; background:#f5f5f5" width="320px" align="right"
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|-
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|align="center"|'''Affect vs. Effect'''
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|-
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|It is important to note the specific meanings of affect and effect in the Section 106 process.
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|-
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|MoDOT begins by identifying any historic properties the project may '''affect'''.  To do this, MoDOT first reviews background information and consults with the State Historic Preservation Office (SHPO) and others who may know about historic properties in the area.  Based on this review, MoDOT determines what additional surveys or other field studies may be needed, and conducts those studies.  If properties are found that may be eligible for inclusion in the National Register of Historic Places, but have not yet been listed on the Register, MoDOT evaluates them against criteria published by the National Park Service.  This evaluation is carried out in consultation with the SHPO, and if questions arise about the eligibility of a given property, MoDOT may seek a formal determination of eligibility from the Secretary of the Interior.
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|-
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|After determining which properties are affected by the project, the '''effects''' of that project on the resources are determined.  If historic properties are found, MoDOT then assesses what effect the project will have on them.  Again, MoDOT works with the SHPO, FHWA, and considers the views of others.  MoDOT makes its assessment based on criteria found in the Council's regulations and can make one of three determinations:
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|-
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|■ No effect: no historic properties are impacted and the Section 106 process is concluded;
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|-
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|■ No adverse effect: the project will affect one or more historic properties, but the effect will not be harmful.  An agreement document or Job Special Provision (JSP) may be required to ensure protection of that resource;
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|-
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|■ Adverse effect: the project will harm one or more historic properties and mitigation or preservation must be considered.
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|}
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===Step 5. Determination of Effect===
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'''If historically significant cultural resources are present, the local agency, FHWA, and SHPO determine effect of the project on a National Register eligible property.'''
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:The effects of a project on a National Register eligible property should be determined by the local agency, SHPO, and FHWA.  There will be a determination of either “no adverse effect” or “adverse effect.”  The SHPO will generally provide its opinion regarding effect along with its determination of eligibility.  This opinion should be transmitted to the FHWA.
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::'''A.''' No Adverse Effect—If the SHPO and/or FHWA find the effect is not adverse, the Section 106 process is complete. 
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::'''B.''' Adverse Effect—If the effect is adverse, the local agency should consult with the SHPO on means to avoid or mitigate the adverse effect.  It may be possible to redesign minor portions of the project to avoid adverse impacts to the resource.  In addition, interested parties such as holders of permits and owners of affected lands should be allowed to participate in the discussions <u>if they so request</u>.
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===Step 6. Preparation of MOA===
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'''If historically significant cultural resources will be adversely affected by the project, the local agency coordinates with SHPO and FHWA in preparation of a Memorandum of Agreement (MOA). Local agency signs MOA and provides to FHWA, who obtains SHPO’s signature and then sends to Advisory Counsel on Historic Preservation (ACHP) for signature (optional) or file.'''
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:If adverse effects to a resource eligible for the National Register cannot be avoided, a Memorandum of Agreement should be prepared through consultation with FHWA, the SHPO, and other appropriate interested parties.  The MOA will document mitigation measures for the eligible resource that will be followed.  The MOA is sent to the FHWA for signature.  The FHWA will forward the MOA to the SHPO and ACHP for their execution.  If the project is not controversial, the ACHP will not wish to participate in the consultation and a two-party MOA is prepared without the ACHP’s signature.
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+
::'''A.''' For the ACHP to determine whether it will be involved in an MOA, it requires that the following documentation be submitted:
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:::1. A description of the project, including photographs, maps and drawings, as necessary.
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:::2. A description of the efforts to identify historic properties.
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:::3. A description of the affected historic properties, using materials already compiled during the evaluation of significance as appropriate.
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:::4. A description of the undertaking’s effects on historic properties.
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:::5. A description of any proposed mitigation measures and evaluation of alternatives that were considered to remove or lessen the undertaking’s effect.
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:::6. A summary of the views of the SHPO and any interested parties.  The Information to Accompany an MOA must contain explicit documentation of public involvement and input regarding the project’s impact to significant cultural resources.
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::'''B.''' The ACHP will comment on the MOA, indicate it does not require further involvement on the project, or indicate its concurrence with the MOA and desire to be a signatory to the document.
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::'''C.''' If the adverse effects are to a Native American archaeological site, American Indian tribes with historical interest in the project area may wish to be consulting parties in the preparation and execution of the MOA.  FHWA can provide a list of tribes that may wish to be involved.  In these cases, the tribes should be provided with the same information that was forwarded to the ACHP.
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===Step 7. Mitigation===
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'''The local agency implements stipulations of the MOA.  Ultimately the SHPO must concur that the stipulations of the MOA have been satisfied.'''
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:Following signature of the FHWA, SHPO, and ACHP (if the ACHP has decided to participate), the local agency will implement the MOA to mitigate the impact on eligible cultural resources. The following mitigation has been used on selected projects:
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:'''A.''' ''Bridges and Architectural Resources:'' The LPA and FHWA consult with the SHPO to determine the level and kind of documentation required for the historic property: Historic American Engineering Record (HAER) documentation, Historic American Building Survey (HABS) standards, or a less formal state-level documentation. For most of these historic properties the state-level documentation is selected as the preferred method for recordation. By this point, public involvement has already been initiated to provide the public the opportunity to review and comment on project alternatives that involve a historic bridge. Generally bridges are advertised for availability and offered to interested parties for reuse in place or at an alternate location, or demolished if no one expresses interest. The transfer of ownership or demolition of the bridge occurs after the consultation on the level of documentation.
  
::'''A.''' Historic Bridges—Generally bridges have been advertised for availability and given to interested parties for reuse at another location or demolished if no one is interested. Prior to transfer of ownership or demolition, the Missouri Historic Preservation Program (HPP) is contacted to determine what level and kind of documentation is required for the bridge. If Historic American Engineering Record (HAER) documentation is required, the following information should be sent to the National Park Service to determine specific documentation requirements:
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:The specific HAER/HABS guidelines can be found at [http://www.nps.gov/history/hdp/standards/guidelines.htm National Park Service’s Heritage Documentation Programs] (also, see [[136.6 Environmental and Cultural Requirements|EPG 136.6 Environmental and Cultural Requirements]]).
  
:::1. A description of the project, including photographs, maps, and drawings as necessary.
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:If the SHPO recommends that the historic property be documented to the state level of documentation, the information required is available at [[136.6 Environmental and Cultural Requirements|EPG 136.6 Environmental and Cultural Requirements]].
  
:::2. A description of the affected historic properties using materials already compiled during the evaluation of significance as appropriate.
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:'''B.''' ''Archaeological Sites:'' If the adverse impacts to a National Register eligible archaeological site cannot be avoided (e.g., changes in roadway alignment, fencing, and burial under roadway fill) the usual mitigation measure is data recovery (i.e. site excavation). Excavation activities are typically limited to within the project limits. If a site is excavated, a qualified archaeologist must conduct the field investigations, analyze the remains, and prepare a Phase III data recovery report. Artifacts from excavations are the property of the LPA and must be curated at an archaeological curation facility. If human remains are encountered during the excavation, SHPO must be contacted and the state burial law ([http://www.moga.mo.gov/STATUTES/C194.HTM RSMO 194]) will need to be followed. Notification of the human remains should also be provided to FHWA and may need to be provided to consulting Indian Tribes.
  
:::3. A description of the undertaking’s effects on historic properties.
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If Steps 3 and 4 are required, then the date that FHWA signed the MOA is used as the Section 106 compliance date.
 
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:::4. Draft Memorandum of Agreement.
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:::More commonly, the SHPO determines the bridges should be documented to a less formal level, with the documentation being sent to the SHPO.
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::'''B.''' Historic Buildings—The mitigation of historic buildings generally parallels that of historic bridges.  Building documentation is done to either Historic American Building Survey (HABS) standards or a less formal level with the information being sent to the SHPO.
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::'''C.''' Archaeological Sites—Adverse impacts to National Register eligible sites have been avoided through changes in roadway alignment, fencing, and burial under roadway fill.  Mitigation of impacts is through excavation.  If a site is excavated, a qualified archaeologist must conduct the field investigations, analyze the remains, and prepare a Phase III mitigation report.  Artifacts from mitigation excavations are the property of the local agency and must be curated at an archaeological curation facility.  If prehistoric human remains are believed to be present, FHWA will require compliance with state burial laws and consultation with appropriate American Indian tribes.
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::''NOTE:'' One additional copy of the documentation required by the Keeper of the National Register, the Advisory Council on Historic Preservation, and the Historic American Engineering Record or Historic American Building Survey will be transmitted for the Federal Highway Administration files.
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+
===Section 106 Process for LPAs Flowchart===
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[[image:Section 106 Process April 2011.jpg|center|thumb|785px|<center>'''This flowchart is general guidance for interaction with the State Historical Preservation Office (SHPO).  It is not inclusive of the entire Section 106 Process.'''</center>
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{| align="center"
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|-
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|'''Link to: [http://www.dnr.mo.gov/forms/780-1027-f.pdf Section 106 Project Information Form]'''
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|}]]
+
  
 
==135.2 The Section 106 Process for MoDOT Projects==
 
==135.2 The Section 106 Process for MoDOT Projects==
  
This article is a brief guide to Section 106 (Cultural Resources) compliance.
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This article is a brief guide to [[127.2 Historic Preservation and Cultural Resources|Section 106]] (cultural resources/historical preservation) compliance.
  
 
A ''cultural resource'' is any archaeological site, building, structure (e.g., bridge), object or district. Not all cultural resources are historically significant, but all have to be considered.
 
A ''cultural resource'' is any archaeological site, building, structure (e.g., bridge), object or district. Not all cultural resources are historically significant, but all have to be considered.
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MoDOT conducts cultural resource investigations to comply with federal and state laws. Failure to obtain Section 106 clearance may jeopardize federal funding and result in stoppage of the project by Federal Highway Administration (FHWA). The primary legislation that requires cultural resources investigations is Section 106 of the National Historic Preservation Act of 1966. Compliance with this law requires three things:
 
MoDOT conducts cultural resource investigations to comply with federal and state laws. Failure to obtain Section 106 clearance may jeopardize federal funding and result in stoppage of the project by Federal Highway Administration (FHWA). The primary legislation that requires cultural resources investigations is Section 106 of the National Historic Preservation Act of 1966. Compliance with this law requires three things:
  
'''1)''' ''Identify Historic Properties'' – Determine scope of effect, identify historic properties (i.e., a property or site that is eligible for listing on the [http://www.nationalregisterofhistoricplaces.com/ National Register of Historic Places], or National Register), and evaluate historic significance;
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'''1)''' ''Identify Historic Properties'' – Determine project’s area of potential effects (APE), identify cultural resources  within the APE, and evaluate historic significance of these cultural resources to determine if any are historic properties. That is, a cultural resource that is eligible for listing on the [http://www.nationalregisterofhistoricplaces.com/ National Register of Historic Places(NRHP)];  
  
 
'''2)''' ''Assess Adverse Effects'' – Assess if the project will have an adverse effect on historic properties; and
 
'''2)''' ''Assess Adverse Effects'' – Assess if the project will have an adverse effect on historic properties; and
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'''3)''' ''Resolve Adverse Effects'' – Avoidance, minimization, and/or mitigation of the adverse effect on historic properties.
 
'''3)''' ''Resolve Adverse Effects'' – Avoidance, minimization, and/or mitigation of the adverse effect on historic properties.
  
===Jobs requiring cultural resources work===
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===Jobs requiring Section 106 compliance===
MoDOT projects that require cultural resource work are jobs that involve:
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MoDOT projects that require Section 106 compliance are jobs that receive federal funds and permits and involve:
  
 
'''1)''' ground disturbance within existing or proposed MoDOT right of way or easements;
 
'''1)''' ground disturbance within existing or proposed MoDOT right of way or easements;
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'''2)''' modifications to a bridge or culvert; and/or
 
'''2)''' modifications to a bridge or culvert; and/or
  
'''3)''' destroys, relocates or encroaches upon a building(s).
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'''3)''' destroys, relocates, or encroaches upon a building(s) or other features on a property, including sidewalks, fences, gateposts, entrance gates, and walls that may be contemporary with the building.
  
If a job does not meet this criteria in the design stage, but later the contractor or maintenance has tasks that would meet one of these criteria the job can become a Section 106 undertaking.
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If a job does not meet this criteria in the design stage, but during construction or maintenance there is an activity that would meet one of these criteria the job can become a Section 106 undertaking.
  
===Different levels of cultural resources investigations that the district may require===
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===How the district initiates cultural resources work===
'''1)''' ''Screening/Recon'' – Background research that identifies known cultural resources in a proposed job area, usually conducted during the Conceptual/Location study stage. MoDOT should identify historic properties that will require a Section 4(f) Evaluation before Preliminary Plans are approved;
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The cultural resources investigations are initiated through the [[127.1 Request for Environmental Services|Request for Environmental Services (RES)]].  Early involvement by MoDOT’s Historic Preservation (HP) staff provides an opportunity to identify and attempt to avoid significant cultural resources, which will minimize the time and cost of addressing Section 106 concerns during the design process. 
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===Different levels of cultural resources investigations===
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|colspan="2" align="center"|'''<sup>1</sup>Section 4(f) Evaluation'''
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|colspan="2"|''Section 4(f) of the Department of Transportation Act of 1966'' states that a transportation project requiring the use of publicly owned land of a public park, recreation area, wildlife and waterfowl refuge, or a publicly or privately owned <u>historic site</u> (i.e., “historic property” as defined by Section 106) may be approved only if:
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|-
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|width="10"| ||1) There is no prudent and feasible alternative to using that land; and<br/>
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2) The program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from its use.
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|-
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|colspan="2"|HP staff will develop the Section 4(f) Evaluation document, with sections created by the districts.  The district design staff needs to provide design alternatives that avoid the Section 4(f) property and the cost of each alternative.  It takes approximately 6 to 12 months to complete the Section 4(f) Evaluation process.
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'''1)''' ''Screening/Recon'' – Background research that identifies known cultural resources in a proposed job area, which is usually conducted during the conceptual/location project development stage. MoDOT should identify historic properties that will require a [[127.10 Section 4(f) Public Lands|Section 4(f)]] Evaluation<sup>'''1'''</sup> before the Preliminary Plans are approved.  If the district has concerns about a property possibly being historically significant, they should make the Historic Preservation Section aware of the property as early as possible.
  
 
'''2)''' ''Investigation for Section 106 clearance'' (should begin before preliminary plans are approved):
 
'''2)''' ''Investigation for Section 106 clearance'' (should begin before preliminary plans are approved):
  
:a) A Phase I survey (an intensive, systematic investigation to identify all cultural resources that may be affected by the proposed job) of the right-of-way and easement limits will be required. A Phase II site testing will be needed if any potential National Register eligible archaeological sites are encountered. The Phase II is a limited archaeological excavation of a site to determine its significance and whether it meets National Register eligibility standards. A Phase II investigation takes approximately 1-2 weeks per site.
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:a) A Phase I survey (an intensive, systematic investigation to identify all cultural resources that may be affected by the proposed job) of the right of way and easement limits will be required. District staff will need to acquire landowner permission to allow MoDOT HP crews’ access to their portion of their property in the proposed project limits, and to photograph buildings on the property (''Note:''  After the district has obtained the initial landowner agreement, HP staff can make follow-up calls if a property owner has specific questions, requests, or concerns).  A Phase II site testing will be needed if any potential NRHP eligible archaeological sites are encountered. The Phase II is a limited archaeological excavation of a site to determine its significance and whether it meets NRHP eligibility criteria. A Phase II investigation takes approximately 1-2 weeks per site.
  
:b) If National Register eligible resources are identified and will be adversely affected by the proposed job, a Memorandum of Agreement (MOA) spelling out mitigation measures and responsibilities is required. The MOA will be prepared by Historic Preservation (HP) staff and signed by the FHWA, MoDOT, and the State Historic Preservation Officer (SHPO) at the Missouri Department of Natural Resources. Indian tribes may participate in the development of the MOA and could be a signatory of the MOA. Tribal participation is initiated by FHWA. It can take several months to negotiate a MOA; and
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:b) If NRHP eligible resources are identified and will be adversely affected by the proposed job, a Memorandum of Agreement (MOA) spelling out mitigation measures and responsibilities is required. The MOA will be prepared by the HP staff and signed by the Federal Highway Administration (FHWA), MoDOT, and the State Historic Preservation Officer (SHPO) at the Missouri Department of Natural Resources. Indian tribes and other interested parties may participate in the development of the MOA. Tribal participation is initiated by FHWA. It will take several months to negotiate a MOA.
  
:c) The mitigation of the adverse effects to National Register eligible resources (a Phase III excavation for archaeological sites) may take several weeks or months to complete the fieldwork. Job construction can proceed following the completion of the mitigation fieldwork.
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:If the adversely affected resource is architectural or a bridge, a Section 4(f) evaluation will need to be prepared. Information for an alternatives analysis will need to be provided by the district. A Section 4(f) Evaluation can take 6-12 months to complete for non-bridge resources.
  
'''3)''' ''Special Provisions'' – Some jobs may require special provisions to the construction contract to address cultural resources concerns. These provisions may guarantee that the stipulations agreed to in the MOA will be completed before the National Register eligible resources is adversely affected by construction, or to protect cultural resources from collateral damage that may occur during construction (e.g., monitoring construction or avoidance of certain areas within the job boundaries). The HP staff will draft the special provisions.
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:c) The mitigation of the adverse effects to NRHP eligible resources (e.g., a Phase III excavation for archaeological sites) may take several weeks or months to complete the fieldwork. If the adversely affected resource is an architectural resource, the building will need to be photographed (interior and exterior) after it has been acquired by MoDOT, and it must be acquired with architectural features intact.  The photographs must be approved by the SHPO before the letting date; a measured floor plan may also need to be prepared for the building.  Job construction can proceed following the completion of the mitigation fieldwork.
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'''3)''' ''Special Provisions'' – Some jobs may require special provisions to the construction contract to address cultural resources concerns. These provisions may guarantee that the stipulations agreed to in the MOA will be completed before the NRHP eligible resource(s) is/are adversely affected by construction, or to protect cultural resources from collateral damage that may occur during construction (e.g., monitoring construction or avoidance of certain areas within the job boundaries). The HP staff will draft the special provisions.
  
 
===How the district initiates cultural resources work===
 
===How the district initiates cultural resources work===
 
The cultural resources investigations can be initiated through a Request for Environmental Services (RES) submitted to the HP Section of the Central Office. Early involvement by MoDOT’s HP staff provides an opportunity to identify and attempt to avoid significant cultural resources, which will minimize the time and cost of addressing Section 106 concerns during the design process.
 
The cultural resources investigations can be initiated through a Request for Environmental Services (RES) submitted to the HP Section of the Central Office. Early involvement by MoDOT’s HP staff provides an opportunity to identify and attempt to avoid significant cultural resources, which will minimize the time and cost of addressing Section 106 concerns during the design process.
  
===A RES for cultural resources investigation for Section 106 clearance should contain:===
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===Timelines===
'''1)''' A simple map indicating the location of the project (this can be a topographic map or county highway map). (Note: This is usually the only additional data required for a RES requesting Screening/Recon);
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Most of the cultural resources' work should be conducted during the preliminary design stage of plan development. Upon the completion of the cultural resources investigations, a report is submitted to the SHPO summarizing MoDOT’s effort to identify historic properties and determine the effects the proposed job would have on these properties. SHPO has 30 days to comment on these findings. Below are several important cultural resources' milestones from the Right of Way and Construction Program database:
  
'''2)''' Preliminary plans that indicate the maximum footprint of the project (including proposed ROW and easements) and any proposed borrow pits; and
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:* During the "Conceptual/Location Study," the HP staff should be consulted to determine whether the project is a Section 106 undertaking, and if so, initiated the Section 106 process;
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:* During the Preliminary Plans stage and after the district has obtained land owner permission for the HP fieldwork, HP staff should identify any historic properties, assess the project’s affects upon them, resolve any adverse effects, and obtained SHPO’s concurrence with MoDOT’s finding (i.e., the standard Section 106 process). HP staff should also identify any historic Section 4(f) properties.
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:* By the Right of Way Plans stage, HP staff should have completed the standard Section 106 process (the preferred method) or notified FHWA and SHPO that a “Phased” Section 106 process is being used. <br/>The "Phased" Section 106 process is used when access to enough property is restricted to prevent a standard investigation to complete the Section 106 process before the ROW stage of project development.  This allows the release of federal funds for the purchase of properties with MoDOT making a commitment to complete the Section 106 process, which might lead to selling previously acquired property and the purchase of additional property in able to avoid an adverse effect to a historic property determined later in the project development process.  An A-date for property acquisition can be set upon SHPO accepting the initial Phased Section 106 submittal or by SHPO not responding within 15 days of their having received the submittal.
  
'''3)''' Landowner permission allowing MoDOT HP crews’ access to their portion of their property in the proposed project limits. (Note: After the district has made the initial landowner contacts, HP staff can make follow-up calls if a property owner has specific questions, requests, or concerns).
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:* By the completion of the Final Design stage, the “Phased” Section 106 process should be completed if being used.
 
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'''Optional:''' Photographs of buildings and bridges in the job area can assist in the Section 106 review. Photographs of buildings should consist of an oblique view or if the buildings are recent (less than 50 year old) commercial development, a basic streetscape shots will do. Bridge shots should consist of a roadway view and a side view. Photographs should <u>not</u> be mounted or labeled on the front. Digital images are fine with electronic submittals (JPEG format).
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===Timelines===
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Most of the cultural resources' work should be conducted during the preliminary design stage of plan development. Upon the completion of the cultural resources investigations, a report is submitted to the SHPO summarizing MoDOT’s effort to identify historic properties and determine the effects the proposed job would have on these properties. SHPO has 30 days to comment on these findings. Below are several important cultural resources' milestones from the Right of Way and Construction Program database:
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:* During the "Conceptual/Location Study," the HP staff should be consulted to determine if the project requires Section 106 clearance, and if so, initiated the Section 106 investigations;
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:* By the "Preliminary Plans Approved" date, HP staff should have identified any historic property that requires a Section 4(f) Evaluation'''<sup>1</sup>''' for the FHWA and the Department of the Interior; and
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:* By "Right of Way Plans Approved" date, HP staff should have an approved final Section 4(f) Evaluation, if needed, so an A-date can be set for right of way purchase.
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By meeting these milestones, the HP staff should have opportunities to identify and attempt to avoid significant cultural resources, not delay purchase of right of way, and complete the Section 106 process well before the job's plan completion date.
 
By meeting these milestones, the HP staff should have opportunities to identify and attempt to avoid significant cultural resources, not delay purchase of right of way, and complete the Section 106 process well before the job's plan completion date.
  
:'''<sup>1</sup>''' Section 4(f) of the Department of Transportation Act of 1966 states that a transportation project requiring the use of publicly owned land of a public park, recreation area, wildlife and waterfowl refuge or a historic site (i.e., “historic property” as defined by Section 106) may be approved only if:
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[[image:135.2 flowchart.jpg|center|780px|thumb|<center>'''Section 106 Flowchart'''</center>
::1) There is no prudent and feasible alternative to using that land; and
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::2) The program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use HP staff will develop the Section 4(f) Evaluation document. The District design staff needs to provide design alternatives that avoid the Section 4(f) property and the cost of each alternative. It takes approximately 6 to 12 months to complete the Section 4(f) Evaluation process.
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[[image:135.2 Section 106 review.jpg|center|630px|thumb|<center>'''Section 106 Review Evaluation of Cultural Resources under the National Historic Preservation Act'''</center>
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[[image:135 historic bridge.jpg|center|750px]]
 
[[image:135 historic bridge.jpg|center|750px]]
 
  
 
==135.3 Borrow and Excess Material Areas==
 
==135.3 Borrow and Excess Material Areas==

Latest revision as of 09:20, 5 January 2016

135 historic.jpg
Forms
Section 106 Project Information Form
Section 106 Survey Form
Guide to the Completion of the SHPO Section 106 Survey Memo
Figure
Fig. 135, Generalized Flowchart of the Section 106 Process for LPAs
Quick Guide for EPG 135.2
Section 106 (Cultural Resources) Compliance

Section 106 Process guidance for Local Public Agencies is presented in EPG 135.1 while guidance for MoDOT staff is summarized in EPG 135.2.

Section 106 of the National Historic Preservation Act of 1966 requires potential impacts to significant cultural resources from any federally funded or permitted project to be considered. Cultural resources include archaeological sites, buildings, structures (e.g., bridges), objects or districts. The significance of a cultural resource is evaluated by applying a specific set of criteria that are set forth by the National Register of Historic Places. Cultural resources that meet the criteria of eligibility for listing on the National Register are referred to as “historic properties.” Failure to obtain Section 106 clearance could jeopardize federal funding and permits for a project. Section 106 encourages, but does not mandate, the preservation of historic properties. The goal of Section 106 is to ensure that preservation values are factored into the planning process for all federally funded or permitted projects.

The actual process for MoDOT varies from that of its off-system partners (the Local Public Agencies) because MoDOT employs qualified staff for conducting Section 106 review and has signed agreement documents with the Federal Highway Administration, the Missouri Historic Preservation Office and the Advisory Council on Historic Preservation. Even so, the Section 106 primary objectives are identical for both MoDOT and the LPAs:

1. Identify historic properties. Determine project’s area of effect, identify historic properties, and evaluate historic significance,
2. Assess adverse effects. Assess if the project will have an adverse effect on historic properties, and
3. Resolve adverse effects. Avoidance, minimization, and/or mitigation of any adverse effect on historic properties.

135.1 The Section 106 Process for Local Public Agencies

Additional information on Section 106 is provided in EPG 136.6.4.1 Section 106 (Cultural Resource) Compliance.

Step 1, Determine Need for Cultural Resource Investigations

If the project does not meet the criteria for a project with “No Potential to Cause an Adverse Effect” as defined by the Memorandum of Understanding between the Missouri Division of the Federal Highway Administration and MoDOT, the LPA should solicit State Historic Preservation Office’s (SHPO) opinion on the need for a cultural resource survey by submitting a Section 106 Project Information Form to SHPO. Below are the steps to follow in the Section 106 process.

A. Section 106 Project Information Form.
B. If a bridge is present, provide information on the bridge’s original builder and the year built along with 3 in. x 5 in. or larger photographs (600 dpi if digital; photocopies are not acceptable) showing two views (side and end views), Google Streetview and similar images are NOT acceptable to the SHPO. SHPO will also accept digital photos on a CD, especially if there are lots of images of both bridges and/or buildings. Be sure to include the bridge number and feature crossed on the project information form!
C. Provide clear photographs (see "B", immediately above) of all buildings in the project area (see description in Step 2a.A. below), keyed to a project map. Include a brief history of buildings including construction dates (if known) and building uses
D. A relevant portion of a United States Geological Survey (USGS) 7.5’ Topographic Quadrangle Map (1:24,000 scale) showing the location of the project and borrow sites is required. Maximum project (and/or borrow) limits should be delineated on the map, along with realignment of roadway if applicable. This map should show a buffer of about one mile beyond the limits of rural projects. An additional “close-up” view map of the project area may be necessary for small projects where the details are difficult to distinguish or for urban areas to better show adjacent buildings (aerial images from websites such as Google Maps and Bing Maps can be used for this supportive information). USGS 7.5’ topographic maps can be downloads from the University of Missouri's CARES Map Room.

If there are any questions about the information that is going to be submitted, the SHPO should be called for guidance. Sending in inadequate information could result in a SHPO response of “Your submittal did not include adequate information to review your project …”, which will require a resubmittal with the correct information. The SHPO review process does not officially begin until they have an acceptable submittal. The SHPO 30-day review process starts over each time additional information is submitted.

SHPO reviews the submitted project information and offers an opinion as to whether further cultural resource investigations are required.

A. SHPO reviews information and offers an opinion as to the need for a Cultural Resource Survey. SHPO has by law 30 calendar days to respond. If SHPO responds “no survey needed” or “no historic properties affected,” Section 106 requirements have been satisfied and no further Section 106 work is needed. The date of the SHPO letter would be used as the Section 106 compliance date.
B. If SHPO recommends that a survey is necessary, a survey should be conducted using a cultural resource consultant or staff member (must meet the Secretary of Interior Standards) to identify historical and/or archaeological resources that may be affected by the proposed project.
C. If LPA does not agree with SHPO that a cultural resource survey is needed, FHWA shall be contacted to make a final determination on the need for a survey.

Step 2, Cultural Resource Investigations

If the SHPO requests a Section 106 survey the LPA will need to hire a qualified cultural resource consultant or staff member to conduct the survey and to submit a report of their findings to the SHPO.

Step 2a, The Cultural Resource Survey
A. Cultural resource surveys typically are limited to the area of potential effects (APE) (i.e., for archaeology, this is the maximum footprint of the project consisting of proposed and existing right of way, and permanent and temporary easements) and any off-site areas, if known (e.g., borrow, staging, wasting, etc.). For architectural resources, the APE may include the limits of the project plus a buffer around the project area so indirect effects of the project are considered (usually 50 ft. in urban settings and 100 ft. in rural settings). For archaeological resources, the APE is the maximum footprint of the project consisting of existing and new right-of-way, and temporary and permanent easements.
B. Reporting the results of the cultural resource survey should follow the SHPO Guidelines for Phase I Archaeological Surveys and Reports. The standard method to submit the results is the Section 106 Survey Memo. Directions in completing this memo are provided on SHPO’s website. Additional SHPO guidance on requirements for architectural surveys is posted on the SHPO website, including the Architectural/Historic Inventory Form that should be used for buildings that are believed to be eligible for listing on the National Register of Historic Places.
C. The Section 106 submittal will be reviewed and commented on by SHPO. SHPO has by law 30 calendar days to respond.
The SHPO comments only apply to the project as submitted. Any changes to the project may require a supplemental submittal to SHPO regarding these changes (e.g., project limits, significant modifications to the nature of the project, etc.). Any subsequent communication with SHPO should include the Project Number assigned by SHPO to the original submittal.
Step 2b, Determination of Eligibility
If cultural resources are present, the LPA, in consultation with SHPO and FHWA/MoDOT, determines whether a cultural resource meets the eligibility requirements of the National Register. A cultural resource professional may need to conduct additional investigations to evaluate the eligibility of some resources. The cultural resource professional will need to consult with the MoDOT Historic Preservation staff on the proposed testing plan for an archaeological site before implementing it.
A. The SHPO is requested to concur or disagree with the National Register eligibility of a cultural resource. The cultural resource professional should provide an assessment of resource eligibility.
B. If SHPO, LPA, and FHWA/MoDOT agree that a cultural resource is not eligible for the National Register, the Section 106 process is complete. No further action is necessary.
C. If SHPO, LPA, and FHWA/MoDOT agree that a cultural resource is eligible for the National Register, a determination of effect (Step 2c) is made next.
Step 2c, Determination of Effect
If historically significant cultural resources are present, the LPA, FHWA/MoDOT, and SHPO will determine the effect of the project on each National Register eligible property (called a “historic property”). If the result of the survey is “adverse effect to a historic property” the LPA precedes with Steps 3 and 4. The Advisory Council on Historic Preservation (Council) must be notified of the adverse effect and be invited to participate in consultation for the development of a Memorandum of Agreement (MOA), through the submittal of an e106 form (see EPG 136.6.4.1.2 for instructions and the LPA Project Checklist for Projects that have an Adverse Effect under Section 106).
If the SHPO concurs with the results of the Section 106 Survey submittal being “no historic properties affected” or “no adverse effect to a historic property,” Section 106 compliance is completed. The date of the SHPO letter would be used as the Section 106 compliance date.

Step 3, Preparation of the Memorandum of Agreement

If historic properties will be adversely affected by the project, the LPA will coordinate with SHPO, MoDOT, FHWA and other appropriate consulting parties in preparation of a Memorandum of Agreement (MOA). Section 106 is not complete until an MOA is executed and the stipulations are completed.

A. The MOA process is started by the LPA’s preparation and submittal of a draft MOA and the e106 form updated to include consultation that may have occurred on the project since the Council notification occurred, and an Alternatives Analysis (for bridge projects). The documents are forwarded to MoDOT Historic Preservation for review and comment.
B. An Alternatives Analysis must be developed.
C. When the MOA is satisfactory, MoDOT will inform the LPA, SHPO and FHWA that it is satisfactory. If the Council has responded, the LPA can begin the process of signing the MOA. The LPA should prepare a copy of the MOA for each signatory.
D. If the adverse effects are to a Native American archaeological site, FHWA will provide a copy of the draft MOA and accompanying information to Indian tribes with historical interest in the project area or attach religious and cultural significance to the site to provide them the opportunity to participate in the consultation process.
E. The LPA will send the signed MOA to the SHPO, using text similar to the sample letter and copy MoDOT and FHWA on the transmittal letter. The SHPO will sign the MOA and forward it to the FHWA for execution, copying MoDOT and the LPA on the transmittal letter. The MOA is considered to be executed upon FHWA signature, who is the last party to sign the document (general signatory order is LPA, any other invited signatories, SHPO and then FHWA).
F. Once the MOA is executed, MoDOT will prepare the Programmatic Section 4(f) evaluation for bridge projects and submit it to FHWA (see the LPA Project Process Checklist for Addressing Adverse Effects under Section 106 and “use” under

Step 4, Mitigation of Adverse Effect

Following the execution of the MOA, the LPA will implement and fulfill the stipulations of the MOA. Ultimately, the SHPO must concur that the stipulations of the MOA have been satisfied.

Following the execution of the MOA, the LPA will implement stipulations of the MOA to mitigate the adverse effects upon the historic property(ies). The following mitigation measures have been used on various projects:

A. Bridges and Architectural Resources: The LPA and FHWA consult with the SHPO to determine the level and kind of documentation required for the historic property: Historic American Engineering Record (HAER) documentation, Historic American Building Survey (HABS) standards, or a less formal state-level documentation. For most of these historic properties the state-level documentation is selected as the preferred method for recordation. By this point, public involvement has already been initiated to provide the public the opportunity to review and comment on project alternatives that involve a historic bridge. Generally bridges are advertised for availability and offered to interested parties for reuse in place or at an alternate location, or demolished if no one expresses interest. The transfer of ownership or demolition of the bridge occurs after the consultation on the level of documentation.
The specific HAER/HABS guidelines can be found at National Park Service’s Heritage Documentation Programs (also, see EPG 136.6 Environmental and Cultural Requirements).
If the SHPO recommends that the historic property be documented to the state level of documentation, the information required is available at EPG 136.6 Environmental and Cultural Requirements.
B. Archaeological Sites: If the adverse impacts to a National Register eligible archaeological site cannot be avoided (e.g., changes in roadway alignment, fencing, and burial under roadway fill) the usual mitigation measure is data recovery (i.e. site excavation). Excavation activities are typically limited to within the project limits. If a site is excavated, a qualified archaeologist must conduct the field investigations, analyze the remains, and prepare a Phase III data recovery report. Artifacts from excavations are the property of the LPA and must be curated at an archaeological curation facility. If human remains are encountered during the excavation, SHPO must be contacted and the state burial law (RSMO 194) will need to be followed. Notification of the human remains should also be provided to FHWA and may need to be provided to consulting Indian Tribes.

If Steps 3 and 4 are required, then the date that FHWA signed the MOA is used as the Section 106 compliance date.

135.2 The Section 106 Process for MoDOT Projects

This article is a brief guide to Section 106 (cultural resources/historical preservation) compliance.

A cultural resource is any archaeological site, building, structure (e.g., bridge), object or district. Not all cultural resources are historically significant, but all have to be considered.

Why MoDOT conducts cultural resources investigations

MoDOT conducts cultural resource investigations to comply with federal and state laws. Failure to obtain Section 106 clearance may jeopardize federal funding and result in stoppage of the project by Federal Highway Administration (FHWA). The primary legislation that requires cultural resources investigations is Section 106 of the National Historic Preservation Act of 1966. Compliance with this law requires three things:

1) Identify Historic Properties – – Determine project’s area of potential effects (APE), identify cultural resources within the APE, and evaluate historic significance of these cultural resources to determine if any are historic properties. That is, a cultural resource that is eligible for listing on the National Register of Historic Places(NRHP);

2) Assess Adverse Effects – Assess if the project will have an adverse effect on historic properties; and

3) Resolve Adverse Effects – Avoidance, minimization, and/or mitigation of the adverse effect on historic properties.

Jobs requiring Section 106 compliance

MoDOT projects that require Section 106 compliance are jobs that receive federal funds and permits and involve:

1) ground disturbance within existing or proposed MoDOT right of way or easements;

2) modifications to a bridge or culvert; and/or

3) destroys, relocates, or encroaches upon a building(s) or other features on a property, including sidewalks, fences, gateposts, entrance gates, and walls that may be contemporary with the building.

If a job does not meet this criteria in the design stage, but during construction or maintenance there is an activity that would meet one of these criteria the job can become a Section 106 undertaking.

How the district initiates cultural resources work

The cultural resources investigations are initiated through the Request for Environmental Services (RES). Early involvement by MoDOT’s Historic Preservation (HP) staff provides an opportunity to identify and attempt to avoid significant cultural resources, which will minimize the time and cost of addressing Section 106 concerns during the design process.

Different levels of cultural resources investigations

1Section 4(f) Evaluation
Section 4(f) of the Department of Transportation Act of 1966 states that a transportation project requiring the use of publicly owned land of a public park, recreation area, wildlife and waterfowl refuge, or a publicly or privately owned historic site (i.e., “historic property” as defined by Section 106) may be approved only if:
1) There is no prudent and feasible alternative to using that land; and

2) The program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from its use.

HP staff will develop the Section 4(f) Evaluation document, with sections created by the districts. The district design staff needs to provide design alternatives that avoid the Section 4(f) property and the cost of each alternative. It takes approximately 6 to 12 months to complete the Section 4(f) Evaluation process.

1) Screening/Recon – Background research that identifies known cultural resources in a proposed job area, which is usually conducted during the conceptual/location project development stage. MoDOT should identify historic properties that will require a Section 4(f) Evaluation1 before the Preliminary Plans are approved. If the district has concerns about a property possibly being historically significant, they should make the Historic Preservation Section aware of the property as early as possible.

2) Investigation for Section 106 clearance (should begin before preliminary plans are approved):

a) A Phase I survey (an intensive, systematic investigation to identify all cultural resources that may be affected by the proposed job) of the right of way and easement limits will be required. District staff will need to acquire landowner permission to allow MoDOT HP crews’ access to their portion of their property in the proposed project limits, and to photograph buildings on the property (Note: After the district has obtained the initial landowner agreement, HP staff can make follow-up calls if a property owner has specific questions, requests, or concerns). A Phase II site testing will be needed if any potential NRHP eligible archaeological sites are encountered. The Phase II is a limited archaeological excavation of a site to determine its significance and whether it meets NRHP eligibility criteria. A Phase II investigation takes approximately 1-2 weeks per site.
b) If NRHP eligible resources are identified and will be adversely affected by the proposed job, a Memorandum of Agreement (MOA) spelling out mitigation measures and responsibilities is required. The MOA will be prepared by the HP staff and signed by the Federal Highway Administration (FHWA), MoDOT, and the State Historic Preservation Officer (SHPO) at the Missouri Department of Natural Resources. Indian tribes and other interested parties may participate in the development of the MOA. Tribal participation is initiated by FHWA. It will take several months to negotiate a MOA.
If the adversely affected resource is architectural or a bridge, a Section 4(f) evaluation will need to be prepared. Information for an alternatives analysis will need to be provided by the district. A Section 4(f) Evaluation can take 6-12 months to complete for non-bridge resources.
c) The mitigation of the adverse effects to NRHP eligible resources (e.g., a Phase III excavation for archaeological sites) may take several weeks or months to complete the fieldwork. If the adversely affected resource is an architectural resource, the building will need to be photographed (interior and exterior) after it has been acquired by MoDOT, and it must be acquired with architectural features intact. The photographs must be approved by the SHPO before the letting date; a measured floor plan may also need to be prepared for the building. Job construction can proceed following the completion of the mitigation fieldwork.

3) Special Provisions – Some jobs may require special provisions to the construction contract to address cultural resources concerns. These provisions may guarantee that the stipulations agreed to in the MOA will be completed before the NRHP eligible resource(s) is/are adversely affected by construction, or to protect cultural resources from collateral damage that may occur during construction (e.g., monitoring construction or avoidance of certain areas within the job boundaries). The HP staff will draft the special provisions.

How the district initiates cultural resources work

The cultural resources investigations can be initiated through a Request for Environmental Services (RES) submitted to the HP Section of the Central Office. Early involvement by MoDOT’s HP staff provides an opportunity to identify and attempt to avoid significant cultural resources, which will minimize the time and cost of addressing Section 106 concerns during the design process.

Timelines

Most of the cultural resources' work should be conducted during the preliminary design stage of plan development. Upon the completion of the cultural resources investigations, a report is submitted to the SHPO summarizing MoDOT’s effort to identify historic properties and determine the effects the proposed job would have on these properties. SHPO has 30 days to comment on these findings. Below are several important cultural resources' milestones from the Right of Way and Construction Program database:

  • During the "Conceptual/Location Study," the HP staff should be consulted to determine whether the project is a Section 106 undertaking, and if so, initiated the Section 106 process;
  • During the Preliminary Plans stage and after the district has obtained land owner permission for the HP fieldwork, HP staff should identify any historic properties, assess the project’s affects upon them, resolve any adverse effects, and obtained SHPO’s concurrence with MoDOT’s finding (i.e., the standard Section 106 process). HP staff should also identify any historic Section 4(f) properties.
  • By the Right of Way Plans stage, HP staff should have completed the standard Section 106 process (the preferred method) or notified FHWA and SHPO that a “Phased” Section 106 process is being used.
    The "Phased" Section 106 process is used when access to enough property is restricted to prevent a standard investigation to complete the Section 106 process before the ROW stage of project development. This allows the release of federal funds for the purchase of properties with MoDOT making a commitment to complete the Section 106 process, which might lead to selling previously acquired property and the purchase of additional property in able to avoid an adverse effect to a historic property determined later in the project development process. An A-date for property acquisition can be set upon SHPO accepting the initial Phased Section 106 submittal or by SHPO not responding within 15 days of their having received the submittal.
  • By the completion of the Final Design stage, the “Phased” Section 106 process should be completed if being used.

By meeting these milestones, the HP staff should have opportunities to identify and attempt to avoid significant cultural resources, not delay purchase of right of way, and complete the Section 106 process well before the job's plan completion date.

Section 106 Flowchart
Detailed information regarding this flowchart can be found at the Advisory Council on Historic Preservation's website Section 106 Regulations Flow Chart.
MoDOT’s responsibilities under Section 106 are explained at EPG Historic Preservation.
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135.3 Borrow and Excess Material Areas

Most borrow and excess material areas are “contractor furnished” with the contractor responsible for attainment or disposal of the necessary materials and compliance with all environmental responsibilities. Typically, the contractor will submit the Section 106 Project Information Form to the State Historic Preservation Office (SHPO). The SHPO has a maximum of 30 days to review this information. The formal SHPO response consists of a letter indicating that no cultural resource survey is required for the identified area or that a cultural resource survey is required. If a survey is required, the contractor may engage a cultural resource firm to conduct the work. Further guidance for hiring a qualified cultural resource consultant may be found at: http://www.dnr.mo.gov/shpo/consultants.htm. Lists of firms qualified by the SHPO can be found on that web site. If asked by a contractor to provide the names of cultural resource contractors, it is important to refer them to the SHPO list and not provide the name of specific firms. For additional information, contractors needing cultural resource help can contact the MoDOT Historic Preservation Section.

In certain cases, MoDOT staff will designate preferred borrow or excess material areas. In these cases, MoDOT usually has obtained Section 106 concurrence for use of the area. For MoDOT to obtain Section 106 clearance for a borrow or excess material area, the project manager should submit an RES with the proposed areas indicated on a topographic map to Design. The time line for MoDOT to obtain Section 106 should allow enough time for MoDOT to conduct the field investigations (if needed) and the SHPO to review and comment on the recommendations (by law the SHPO has 30 days to comment).