129.9 Section 106 and Tribal Consultation

Section 106 of the National Historic Preservation Act requires that the public be offered the opportunity to receive information about and comment on the project's effect on historic properties. Section 106 also requires a federal agency to notify the public of proposed projects and offer the public an opportunity to provide input in a timely manner. The project's impacts on historic properties should be identified and discussed at public meetings. Documentation of public input or knowledge regarding these impacts is required in eProjects or the RES. A member of the public with a demonstrated interest in an undertaking may request and receive consulting party status from the federal agency. The district should work with the Historic Preservation Section to coordinate HP involvement in public meetings when there are historic properties present on a project.

Below is the guidance provided by the Advisory Council on Historic Preservation on what are the minimum standards for public involvement, public notice and information standard (36 CFR PART 800 2(d) & 6(a)(4)):

“At a minimum, the Agency Official has to provide an opportunity for the public to examine the results of the agency's effort to identify historic properties, evaluate their significance and assess the undertaking's effects upon them. When adverse effects are found, the Agency Official must also make information available to the public about the undertaking, its effects on historic properties and alternatives to resolve the adverse effects and must provide the public an opportunity to express their views on resolving adverse effects. The precise method of meeting these standards is left up to the Agency Official and may be guided by other applicable agency public involvement procedures. The agency can adjust the level and method based on the circumstances of the undertaking, as provided for in Sections 800.2(d) and 800.6(a)(4).”

“At a minimum, public notice should be designed to effectively inform the public about the nature of the undertaking, its effects and the public's likely interest in it. As for information, the documentation standards of Section 800.11 set requirements for the record at various steps in the process. These materials should be available to the public, unless constrained by legitimate confidentiality concerns. Other than Section 800.11's documentation standards, there is no special prescribed public notice and information standard for Section 106. Efforts to inform the public for other planning and environmental review purposes should be a guide to adequate efforts to meet Section 106 needs.”

Besides the public, Section 106 also requires federal agencies to consult on a “government-to-government” basis with federally-recognized tribes and nations with ancestral, historic, and ceded land connections to Missouri to facilitate avoiding or minimizing project impacts to cultural resources that a tribe considers of historical or religious significance. Consultation means the process of seeking, discussing, and considering the views of others, and where feasible, seeking agreement with them on how historic properties should be identified, considered, and managed. The federal government's unique relationship with tribes is derived from the U.S. Constitution, treaties, Supreme Court decisions, federal statutes, and executive orders. The Federal Highway Administration cannot delegate its government-to-government responsibility and overall consultation and coordination duties. However, if a tribe agrees in advance, FHWA may rely on MoDOT to carry out day-to-day, project-specific coordination and consultation. FHWA remains legally responsible for all findings and determinations.