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1. THE FOUR STEP SECTION 106 PROCESS: STEP THREETENNESSEE STATE HISTORIC PRESERVATION OFFICEREVIEW AND COMPLIANCE SECTION All reproduction rights reserved

2. What follows is a presentation text in PowerPoint format. It is being presented that way because the staff of the Tennessee State Historic Preservation Office’s Review and Compliance Section believes you will be able to absorb more of the message of the presentation in this format than if it were presented as a printed text. As such, this presentation lacks much of the “punch” of a normal PowerPoint presentation. But since we are not there to narrate all the needed information for you, this is the best way to transmit the information you need to complete Section 106 review swiftly and successfully.

3. INTRODUCTION

4. The Federal Agency Official should apply the Criteria of Adverse Effect (800.5(a)(1) and 800.5(a)(2)) in seeking to decide the type and nature of project effect upon identified Historic Properties located within the undertaking’s APE.

5. Step Three Assess Project Effects Upon Historic Properties

6. Questions You Should Answer Before Beginning Consultation:

7. Step Three: Assess Project Effects: • What is the result of applying the Criteria of Adverse Effect to the project under review? • Which specific Criteria of Adverse Effect apply to this project?

8. IS THERE A PUBLIC INTEREST IMPERATIVE IN IMPLEMENTING THIS SPECIFIC UNDERTAKING?

9. Public Interest Imperative Funded Federal undertakings located on Federal land or associated with Federal buildings are, by definition, in the public interest, because they are the product of specific Federal statute.

10. However…

11. Public Interest Imperative Undertakings that are associated with specific Federal grants or loans to non-Federal applicants, or Federal licenses, permits, or approvals are not necessarily in the public interest, because they are not specifically the product of Federal statute.

12. Public Interest Imperative Furthermore, activities for which non-Federal applicants must duly seek a Federal license, permit, or approval are clearly not necessarily in the public interest. Otherwise, no Federal license, permit, or approval for such activities would be necessary in the first place.

13. Public Interest Imperative That means for these undertakings, when faced with an adverse effect determination, Federal agencies and applicants must devote extra time to exploring alternatives that avoid or minimize adverse effects in consultation with other participants.

14. Public Interest Imperative Because, for these undertakings, the Section 106 “General Welfare” mission trumps the mission of the Federal agency or applicant. It is not necessarily in the public interest for a specific applicant for Federal assistance to receive that specific assistance.

15. Public Interest Imperative Therefore, it is the responsibility of the agency or applicant to demonstrate a genuine and defendable purpose and need for that undertaking. Doing so will increase agency and applicant positive influence over the other participants in Section 106 review.

16. How Do You… …assess the effects of your undertaking upon Historic Properties?

17. Undertakings may have both direct and indirect effects. That is, effects may be both cumulative over time as well as a direct and immediate consequence of the federal undertaking. Under the 36 CFR 800 regulation, federal agencies must apply the “if but for” rule as they determine a particular undertaking’s ultimate and foreseeable Area of Potential Effects.

18. For example, an agency receives an application for a permit to construct a marina on the edge of a watercourse in conjunction with the construction of an adjacent condominium development. The agency is obliged, in establishing the undertaking’s foreseeable APE, to determine whether the marina is essential to the condominium development. A standard operating procedure for making such a determination involves reviewing the condominium development site plan to determine whether the marina is among its programmatic elements. If the agency determines after a good faith analysis that the condominium development is directly dependent upon the construction of the marina, then the APE of the undertaking should include both the marina and the condominium development. The marina has the potential directly to affect cultural resources along the watercourse and indirectly to affect cultural resources disturbed during the construction of the condominium development. If the condominium development does not directly depend upon the marina, the APE includes only the marina footprint.

19. Here is another example. An agency receives a request for funding of an underground water line stretching from the community water treatment plant to a proposed industrial park. In defining the project APE, the agency shall test the proposed industrial park against the “if but for” rule. If the industrial park is dependent upon the water line, then the project’s APE includes both the route of the water line and the site of the industrial park. If the industrial park could function without the water line (most unlikely), then the APE would only include the route of the line.

20. The “if but for” rule is a direct concomitant of the concept of cumulative and foreseeable project effect. Since the 36 CFR 800 regulation states very clearly that any federal undertaking may have both direct and indirect (cumulative and foreseeable) effects, then federal agencies must apply the “if but for” rule as a matter of course. Agencies that do not take both direct and indirect effects into account when delineating their APEs risk charges of noncompliance and subsequent litigation.

21. SECTION 106 CHECKLIST

22. Questions: Assess the possible direct, and indirect, and cumulative effects of the undertaking upon identified historic properties and any alternatives you may have explored, thus defining the historic preservation issues and providing a clear basis for choice among options by the consulting parties and the public. Yes_________ No_________

23. Questions: 40 CFR Part 1508.8 lists various kinds of Effects that include: (a) Direct effects, which are caused by the action and occur at the same time and place, and,

24. Questions: (b) Indirect effects, which are caused by the undertaking and are later in time or farther removed in distance, but are still reasonably foreseeable.

25. Questions: Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.

26. Questions: 40 CFR Part 1508.7 defines "Cumulative impact" as “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions.”

27. Questions: “Cumulative impacts” can result from individually minor but collectively significant actions taking place over a period of time.”

28. HOW DO YOU ASSESS THE DIRECT AND INDIRECT EFFECTS OF THE UNDERTAKING UPON HISTORIC PROPERTIES?

29. APPLY THE CRITERIA OF ADVERSE EFFECT

30. Criteria of Adverse Effect: Apply the Criteria Of Adverse Effect: You should apply the Criteria of Adverse Effect (800.5(a)(1) and 800.5(a)(2)) in seeking to decide the type and nature of project effect upon Historic Properties.

31. Criteria of Adverse Effect:     (a) Apply criteria of adverse effect. In consultation with the SHPO/THPO and any Indian tribe that attaches religious and cultural significance to identified historic properties, the agency official shall apply the criteria of adverse effect to historic properties within the area of potential effects. The agency official shall consider any views concerning such effects which have been provided by consulting parties and the public

32. Criteria of Adverse Effect: The “Criteria of Adverse Effect” found at 36 CFR Part 800.5 contains a list of possible adverse effects to historic properties. While this list is not comprehensive, agency officials, consulting parties, and the public do well to use it to help them make informed findings about the possible adverse effects to historic properties of federal projects.

33. Criteria of Adverse Effect: Adverse Effects include, BUT ARE NOT LIMITED to the following:

34. Criteria of Adverse Effect: Any physical destruction of or damage to an Historic Property which would diminish its integrity for listing in the National Register of Historic Places currently or in the foreseeable future (the Tennessee State Historic Preservation Office will be especially mindful of effects which make a Historic Property ineligible for listing in the National Register (currently or in the foreseeable future) (this includes seismic damage)  Yes_________ No_________

35. Criteria of Adverse Effect: Any alteration to an Historic Property not in accordance with the secretary of the interior’s “standards for the treatment of historic properties”: http://www.nps.gov/history/hps/tps/standguide/ Yes_________ No_________

36. Criteria of Adverse Effect: Any removal of a Historic Property from its location when location and setting have been determined to be part of the resource’s National Register eligibility Yes_________ No_________

37. Criteria of Adverse Effect: Any changes to the Historic Property’s character or setting that diminish its integrity (the Tennessee State Historic Preservation Office will be especially mindful of effects which make a Historic Property ineligible for listing in the National Register currently or in the foreseeable future) Yes_________ No_________

38. Criteria of Adverse Effect: Any introduction of out of character elements (visual, oral, etc.) into the affective vicinity of the Historic Property which diminish its integrity (again, the Tennessee State Historic Preservation Office will be especially mindful of effects which make a Historic Property ineligible for listing in the National Register currently or in the foreseeable future)  Yes_________ No_________

39. Criteria of Adverse Effect: Any neglect that causes the Historic Property to lose integrity (unless the resource has demonstrable significance wholly as a religious or cultural property and the Consulting Party making the assertion of significance deems neglect as not adverse) Yes_________ No_________

40. Criteria of Adverse Effect: Any lease, transfer, or sale of a Historic Property out of Federal control without adequate protection in the form of a preservation covenant Yes_________ No_________

41. Criteria of Adverse Effect: Any data recovery of any archaeological Historic Property unless determined eligible wholly under National Register Criterion “D” (this adverse effect may be resolved by using the Advisory Council on Historic Preservation’s “Recommended Approaches for Consultation on Recovery of Significant Information from Archaeological Sites” 64 CFR 27085-27087) Yes_________ No_________

42. As a general rule of thumb, “adverse effect” occurs when the archaeological, architectural, or historical integrity of an Historic Property that qualifies it to be eligible for listing in the National Register of Historic Places will be diminished to such an extent by the undertaking that the future National Register eligibility of the Historic Property under any and all National Register Criteria is threatened by the undertaking. Federal agencies, therefore, should decide whether their undertaking would so diminish the integrity of a National Register eligible property as to threaten its future eligibility under any of the four National Register Criteria.

43. Properties listed in the National Register of Historic Places under less than all four criteria are still subject to evaluation of their eligibility under all four criteria. Remember, the National Register of Historic Places is not the complete roster for the Section 106 process. Eligibility for listing in the National Register, and not National Register listing itself is the deciding factor here.

44. WHAT ARE THE CLASSES OF FEDERAL UNDERTAKINGS MOST LIKELY TO AFFECT HISTORIC PROPERTIES ADVERSELY?

45. Federal undertakings most likely to affect historic properties adversely • any proposed demolition or construction work on a know historic property, • any new highway construction or widening, • any project in any way involving disturbing the ground, • and any project involving large areas of land or long land corridors.

46. Federal undertakings most likely to affect historic properties adversely Any federal licenses or permits for such projects also have a high potential to affect historic properties adversely. Agency officials who are thinking about such undertakings should begin exploring alternative proposals and alternative locations as soon as possible in their project planning process.

47. WHAT IS A USEFUL WAY OF ANALYSING THE SCOPE AND NATURE OF THE ADVERSE EFFECT?

48. ANALYSING THE SIGNIFICANCE OF THE ADVERSE EFFECT By using certain benchmarks found at 40 CFR 1508.27, Agency Officials and applicants for Federal assistance may assess the scope, nature, and severity of the impact of their undertakings upon Historic Properties quite accurately.

49. ANALYSING THE SIGNIFICANCE OF THE ADVERSE EFFECT For example, would the proposed undertaking significantly and adversely affect the unique characteristics of the geographic area bounded by the Area of Potential Effects. Such unique characteristics would include proximity to historic or cultural resources. Yes_________ No_________

50. ANALYSING THE SIGNIFICANCE OF THE ADVERSE EFFECT Or would the proposed undertaking significantly and adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or cause loss or destruction of significant cultural, or historical resources. Yes_________ No_________