106pub - M WORKING WITH SECTION 106 PUBLIC PARTICIPATION IN...

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Unformatted text preview: M WORKING WITH SECTION 106 PUBLIC PARTICIPATION IN SECTION 106 REVIEW: A Guide for Agency Officials ISSUED BY Advisory Council on Historic Preservation FEBRUARY, 1989 _—-—-—_ Cover photos: Council members toured the Big Five Tunnel in Idaho Springs, Colorado, an EPA Superfund cleanup site subject to Section 106 review. (Brit A. Storey, photographer.) A member of the Kootenai tribe spoke to the Council about the protection of historic properties on tribal lands and Native Americans’ participation in the Section 106 review process. (Robert Fink, photographer.) Interested property owners, State and Federal officials met to discuss plans for a Maryland highway project subject to Section 106 review. (Candace Clif- ford, photographer.) [9 Working with Section 106 PUBLIC PARTICIPATION IN SECTION 106 REVIEW Table of Contents I.Introduction 5 II.Planningforpublicparticipation 5 III.Publicparticipationprinciples 8 A. Public participation in Section 106 review should support historic preservation objectives and help the Federal agency meet its program responsibilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 B. Both Federal agencies and members of the public have responsibilities in a public participation program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 C. Public participation objectives should be approached with flexibility. . . . . . . 10 D. The level and type of public participation should be appropriate to the scale and type of undertaking and to the likelihood that historic properties may be present and subject to effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 IV. Evaluating an existing public participation program . . . . . . . . . . . . . . . . . . . . . . . . 11 V. Methods of public participation through programmatic coordination . . . . . . . . . . 12 VI. Methods of public participation on an individual undertaking . . . . . . . . . . . . . . . 13 A. Determine the extent of public participation needed. . . . . . . . . . . . . . . . . . . . 13 B. Identify potential participants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 C. Seek information from parties with knowledge or concerns. . . . . . . . . . . . . . . 14 D. Determine whether “interested persons“ exist . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 E. Coordinate identification and evaluation with interested persons. . . . . . . . . . 15 F. Coordinate effect determination with interested persons. . . . . . . . . . . . . . . . . 15 G. Consult with interested persons about adverse effects. . . . . . . . . . . . . . . . . . . 17 H. Report the conclusion of Section 106 review to interested persons . . . . . . . . . 18 Working with Section 106 3 h PUBLIC PARTICIPATION IN SECTION 106 REVIEW W VII. Documenting public participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 i W I VIII. Approaches to situations involving numerous interested persons . . . . . . . . . . . . 19 ‘ IX. Public participation in Programmatic Agreement development . . . . . . . . . . . . . . 20 ; X.Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . ......21 Table of Figures Figure 1: A brief look at Section 106 review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Figure 2: Who are "interested persons”? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Figure 3: Public participation principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Figure 4: Methods of public participation on an individual undertaking . . . . . . 13 Figure 5: Making documentation available to the public . . . . . . . . . . . . . . . . . . . 16 Working with Section 106 I — PUBLIC PARTICIPATION IN SECTION 106 REVIEW: A Guide for Agency Officials I. Introduction What Section 106 requires of Federal agencies The National Historic Preservation Act (NHPA) and other Federal authorities, and a growing number of State and local laws, ordinances, and policies, require or encourage the consideration of historic properties in the planning and im- plementation of land use and development projects. Section 106 of NHPA requires Federal agencies to take into account the effects of their undertakings on historic properties, and to afford the Advisory Council on Historic Preservation a reasonable opportunity to comment on such undertak- ings. The Council’s regulations, "Protection of Historic Properties" [36 CFR Part 800, 1986], guide implementation of Section 106. The resulting system is referred to as the Section 106 review process. Figure 1 gives a brief overview of Section 106 review. The Section 106 review process provides for active participation by the public. The general public must be notified of agency actions under the regulations, and organizations and individuals concerned with the effects of an undertaking on his- toric properties (defined in the regulations as "interested persons") are to be in- volved in the review process in various ways, depending on their particular interests. The purpose of this publication is to help agencies involve the public effectively, with minimum burden to agency missions. A separate publication will provide ad- vice to the public about participation in the review process. For general information on the Section 106 review process or on the regulations themselves, the Council’s publication, Section 106, Step-by—Step, and other litera- ture concerning the process and related historic preservation requirements are available from the Council. — 11. Planning for public participation Systematic planning for public participation in Section 106 review will help agen- cies ensure that such participation takes place in an orderly and productive man- ner. Identifying and addressing the public’s concerns about historic preservation issues should be a regular part of each agency’s overall planning system, whether the activities planned are specific projects or the ongoing management of land or structures. Working with Section 106 PUBLIC PARTICIPATION IN SECTION 106 REVIEW ‘Flg‘ure'ié’A briefjlook at Seasonv'apmvtew I Step: enamel: in [it How doésSecfion 106 review‘WOrk? The , " ‘ 3 _. ‘ ' ;.slendard ray/law process is spelled out in ‘ _ j {31‘ may“; pfopgmes, mat is, pmpemgs In. 9' “era! “Emmi?” issued by the M‘ i bladed ln'o? ellg‘lblelof‘lncluslon hi the _‘ I visory Council °n “39’3" P’ese’vafim- 17' “National Register, are iound,_,lfia egeticy ' Entitled “Protection of Historic; Proper- r HI,me ms Mm we“ “findemki’ng = .__tlés,' the regulations appear in mus. I :wm haw“ them “gm” agency: 1; Code of Federal Regulations at 36 CFR. mg”, W'SHPO, and mgde}! _ "Pa" The W009“ “WO'VeS 5V9 has“ ' views of oihere; The agency makes its ‘ 3°95 §§I°"°w- ' I ' ' I ' ‘ H .;_os’ses§ment based on criteria found it: ‘ ’ ‘ "the Council's regulations, can make : One of threo‘dete‘rmlnafionsr The Councll, mawammant during step 3 ol the process, by participating inconsu‘lt wan any; siafiiw'the issumns Moe: , ptheqwi'se. glue-agency obtains Council I oommenl by submitfing the MOA to the Cannon fot review and acceptance; f The r _ ' uncll oanla‘coept the MOA. ie’queSt ' ' “changes. amp: to issue _wrl_tten__ com: ‘ 'méfitsk "vwhwliafidhjmfietmlnfiwd :the council lssdesfis’wr‘i‘tt'en'oomh‘ients. _ . dikeétly tofl'leegency head 3 the ag'em '-:;_ teric properties ; ' ’St'ép Idéntify . , ‘The Federal agency‘responsible for en ' _ .v undertaking begihs by'ldenu‘fyin'g me 'NS-_ 5; i {one pfomnies the mdefleking'may af-r ‘ ' 1", Joel, To do this. the agency firstnviews‘ backgrouhd information ahd consults. ' "with the State l-lisforic PreSewalion_ 0!. V, fioer (SHPQ) and omen wfio may'k‘n‘ow '- about hlstarlc' propenles in ma. :1 '- Based or; this review theagency deter; whines wha'i additlonal surveysor other No adverse enact: m whammy H will wool one of, more histotlc proper ties,“ the effect will not be harmful Pl '» 5&3th Of theMOA. Inithe‘jabsenoe‘ol an _ ~ moans egehcy he'a’dhqut take ‘inlo‘aq count the Councll's wrlttenoornments In ' 95‘ 9‘ ' V ' 4’ “ed e. the undertaking WI" harm or more historicpropemes. fl dope _s, that is; distrlots. alumna. legs, strudmes or objects, are found thai _ may beveligible for‘ inclusion in the Na- ‘ me: Register of Historic Places. bui ‘ have nofyet been included in sfiegiste‘rl the {money evaluates . . > I > gains: otherla published by {he Nafloml " Park Service. which maintglnemefgf' 'Be'gistey, SIMS evaluation is out In wasultaticfi‘w'ith the. SHPO. “and a: 600.3? {lions‘arise about ellgib'llltyofg qu, tummy. the agency maysb'ek I m“ : determination of ellgiblllty from the , ; .~ Safeway :he interim-Till g'p'mpény alteadyipejen IndUded : Register; “01‘ course; furthefewua'fion ls 6 ‘ Workingwith Section 106 PUBLIC PARTICIPATION IN SECTION 106 REVIEW Integrating public participation into an agency’s administrative processes "Interested persons" and the general public The regulations provide that Section 106 review, including public participation in such review, may be fully coordinated with and satisfied by the procedures car- ried out by agencies under the authority of the National Environmental Policy Act (NEPA) and other pertinent statutes. The Council encourages agencies to provide for public participation in Section 106 review through existing agency public participation procedures, and also encourages the public to use such pro- cedures fully to raise and resolve historic preservation issues. To the maximum extent possible, public participation in Section 106 review should be integrated into an agency’s normal administrative processes in such a way as to ensure that both Section 106 in general, and public participation in par- ticular, occur in a timely manner well before potentially damaging undertakings are approved. Agencies that are organized into headquarters, regional, and field offices should ensure that their procedures at all levels provide adequately for timely review and public participation. It is essential that agencies ensure that field offices have sufficient time to meet all applicable requirements of Section 106 review, and receive necessary guidance and assistance from regional and headquarters levels. The Council’s regulations distinguish between "interested persons” and other ele- ments of the public. "Interested persons" are defined as "organizations and in- dividuals that are concerned with the effects of an undertaking on historic properties" [36 CFR § 800.2(h)]. Interested persons may be, and in some cases must be, invited to participate in consultation about how to reduce the adverse ef- fects of an undertaking on historic properties. (See Figure 2.) Members of the general public who are not interested persons must be notified of planned actions and decisions, and their comments must be considered, but they need not be in- vited to be active participants in consultation. It is important that in planning public participation agencies establish mechanisms for identifying and involving interested persons, without diminishing the role of the general public. Part III, which follows, discusses general principles that should be considered in all kinds of public participation in Section 106 review. Subsequent portions of this paper discuss points to consider in evaluating an existing public participation process, offer recommendations about how to work with the public on a program- matic basis, and outline step-by-step procedures for involving the public in each activity required by the regulations. “m Working with Section 106 PUBLIC PARTICIPATION IN SECTION 106 REVIEW i5 159:“ 25 WW. at? "imeriésteibe'reénisi? Definition V define finterested persons? as "ft'liose.organrzetions and indivrduals that are concerned with the effect of en'undertaking' on historic preperties'v'BG CFR § _» 800291)]; :, V .Mandatoryvparticipation by interested persons; mum g'm' considered to be manage siesta: who ain‘in be iiiviiéd j _ ‘tieipate in consultation When persons so request [35 5 800.5(e)(1)1; in. head a". local government (for slaps; the mayor city; the ehier'sxéeuuvo' of a county government, or his/her designee) when the undertaking may afieethis-i 'ptoric prdperjtiee within the local government’s jurisdiction;ll, " . e The representative'ol'en lndien tribe (federally recognized tribe or Alaska Native Cor I paration) when an undertaking will affect Indianlands or properties of historic value - 7;: 7' p to the tribe on non-Indian lands on the former case the tribe must be invitedtoeom : , j} .. our in any agreement reached by the consulting parties) [36 CFR_§ 80071 (c),(2)0ii)]; ' :1 ,. " 9' Applicants or holders of grants. orlieensesthet ere: the subjects 7 v Ition106review; _ V . V a . p .' j I I I . I 0 Owners inflected lands, thatis, persons ylho meet the regulationS‘ definition of V V ‘ ' terested person' and who hold title to real property within an undertaking's area of 5‘, »» 1.3;; Optimal persons V I "Hollowing are be ' . r J p ’W‘MW‘P‘WWW ismnropristé [36$ spgoo (sums-J - i E; g g a 5 O «'2 g e 5 Q L’ (I: I 3 S O. 9 3% Q ‘8 é Q (I Traditionaleultural wages; that is, indiyidu'elsin , Nativeg’rnmcsngmup or anew leis! orethnie group who are recognized by ’meriibers of the gr’o‘up as experts on the x'g'roup‘s traditional history. and cultural practices {36 CFR (e)(2)(iii)];. ' ' e :NativevArne'ri'cans; that is,_ American indiens, Native l-ieweiiane.vend"otherswho- : » I m identifiedby themselves and recognized by’others as members of a named,'na- :.tive cultural group that historically has shared linguistic, cultural, so'cial, and other tehareclerlsties. but that is not necessarily in federal ' "' nized indi ' ” ' I“NamCOIPOMONB6058§BOO~1(°)(2)IG“)1 " = ’ ' assi’maaafiaisonmn 136 cm s‘aoo.5(é)_(1)(ivil- — II. Public participation principles 4 Agencies should consider the following principles in designing systems for public participation in Section 106 review. See Figure 3 for a summary of public par- ticipation principles. 8 Working with Section 106 PUBLIC PARTICIPATION IN SECI'ION 106 REVIEW _ ’ xjpuusc’pa'riapaum samba 106 should historic plasma 55;»: f_ l ‘ so " help the Federal agency meet its program responsibilities, ’ ‘ and" embers as. public jspon'sieilities’tn a'pubflc Def-j objectives" should be'app'rba'ched mutingxibiiitygi : thpoo i " _ paragr- ‘shéuldtie'sob‘ropiiaiéié 5 g : g‘arid to the likelihood that historic properties may be present and‘subjec‘t . H undertakin A. Public participation in Section 106 review should support historic preservation ob- jectives and help the Federal agency meet its program responsibilities. Practical objectives of an agency’s An agency’s public participation effort should be designed to meet such practical public participation effort objectives as the following: I obtaining assistance from members of the public likely to have information about historic properties and the areas that may be affected by undertakings, and informing them of agency undertakings and purposes; I utilizing the applicable knowledge and expertise of professional and avocation- al practitioners of such disciplines as history, architectural history, landscape ar- chitecture, and archeology; I involving property owners, local governments, Indian tribes, neighborhood as- sociations, and others whose immediate interests may be affected, whose view- points need to be considered in decisionmaking, and who may need to participate in Section 106 review as interested persons; I considering viewpoints presented by interested persons and other members of the public, both as an aid in information gathering and as a basis for decision- making; I identifying and working toward the resolution of conflicts, if any, between program objectives and preservation objectives, based on full consideration of feasible alternatives. Working with Section 106 9 _—————I_-_—_ PUBLIC PARTICIPATION IN SECTION 106 REVIEW W B. Both Federal agencies and members of the public have responsibilities in a public participation program. Agencies have the affirmative duty to make the public aware of the opportunity to participate in Section 106 review, and to encourage the participation of interested persons. Agencies should be able to expect members of the public who are con- cerned about historic properties to pursue their opportunity to participate active- ly and cooperatively in Section 106 review. The process is designed to emphasize good-faith information sharing, consultation and exploration of alternatives, to promote agreement on measures acceptable to all involved. Such a process re- quires understanding of each party‘s rights and obligations and respect for diverse points of view. C. Public participation objectives should be approached with flexibility. The regulations may be implemented "in a flexible manner reflecting differing program requirements, as long as the purposes of Section 106...and these regula- tions are met” [36 CFR § 800.3(b)]. With reference to public participation, this means that the agency should involve the public in a flexible manner that reflects the type of undertaking under consideration, the agency’s administrative proces- ses, and the nature of known or expected public interests. D. The level and type of public participation should be appropriate to the scale and type of undertaking and to the likelihood that historic properties may be present and subject to effect. The level of agency effort to ensure public participation in Section 106 review should be appropriate to the scale and type of undertaking involved, to its poten- tial effects, to the kinds of historic properties likely to be affected, and to the kinds of possible public interest present. For example, an undertaking of small scale or in an area not likely to contain historic properties rarely requires the level of public participation that a large scale undertaking or one in an area of known or likely historical significance will warrant. Similarly, an undertaking of a kind that has little potential for adverse effect to historic properties is unlikely to require the same level of public participation as will one that is likely to have major adverse effects. Based on their mandates and On the volume and variety of their actions, Federal agencies are encouraged to define levels and methods of public participation ap propriate to the various classes of undertakings in which they participate. The levels and methods should be consistent with Council guidelines, and should take into account the potential each class of undertaking has for affecting historic properties; they should also provide alternative approaches where particular cir- cumstances warrant them. 10 Working with Section 106 PUBLIC PARTICIPATION IN SECTION 106 REVIEW For an individual case, at the time an agency initiates Section 106 review, it may not know what kinds of historic properties are subject to effect, what kinds of ef- fects will occur, and what kinds of interests may be affected. A major part of the Section 106 review process involves making informed determinations about precisely these matters. Initial formulation of a means for public participation thus may require some initial identification effort. (See the Council/National Park Service publication, Identification of Historic Properties: A Decisionmaking Guide for Managers.) A plan for public participation will also benefit from the ad- vice of the SHPO. Approaches may have to be adjusted as increased under- standing is gained about what effects, if any, the undertaking will have. — IV. Evaluating an existing public participation program The Council and its regulations encourage agencies to "examine'their administra- tive processes to see that they provide for participation by the State Historic Preservation Officer and others interested in historic preservation," and to con— sult with the Council to develop special procedures if impediments to such par~ ticipation are found to exist [36 CFR § 800.1(b)]. Questions to consider in evaluating an In reviewing their current processes regarding public participation to ensure that agency’s public participation process they provide adequately for participation by those interested in historic preserva- tion, in a manner consistent with these Council guidelines, agencies should con- sider such questions as the following: I Does the agency make decisions about the scope and timing of public participa- tion in a manner commensurate with the scale of the undertaking and the likelihood that historic properties and public interests in such properties will be affected? I Does the agency inform the public of potential undertakings in a timely man- ner, when the widest feasible range of alternatives is open for consideration? I In such timely public notice, does the agency explicitly request views on historic preservation issues or concerns? I Does the agency specifically invite the views of groups likely to have interests in potentially affected historic properties? I Does the agency identify interested persons early in Section 106 review, invite them to participate, and facilitate their participation? I Does the agency provide mechanisms for addressing and, if possible, resolving the concerns of interested persons? I Do agency procedures provide for information to be readily available to the public at all stages of the review process, including information on Section 106 review and the means by which the public can participate in review? Working with Section 106 11 ‘W—W PUBLIC PARTICIPATION IN SECTION 106 REVIEW I Does the procedure systematically integrate and document the results of public participation, including public views and agency responses, into the Section 106 review process? If the answers to the above questions are affirmative, the agency’s program should fully meet the purposes of public participation in Section 106 review. If not, the program may need to be modified to meet the purposes of Section 106 and Council regulations. The regulations encourage agencies to consult with the Council in making such modifications [36 CFR § 800.1(b)]. — V. Methods of public participation through programmatic coordination Definition of programmatic Programmatic coordination means establishing and maintaining relationships coordination with elements of the public on an ongoing basis with respect to an agency program, as distinguished from contacting or being contacted by the public only when particular actions are contemplated. Where an agency anticipates numerous undertakings in a general area, programmatic coordination with the public is strongly recommended as a prelude, and sometimes as an alternative, to public participation in the review of individual undertakings. Early outreach to the public to identify potentially interested persons and to establish specific means by which they will be afforded the opportunity to participate in review can greatly facilitate planning of specific undertakings. When programmatic coordination Programmatic coordination may be especially appropriate for Federal land with the public is appropriate management agencies, whose undertakings involve the ongoing administration and use of large areas of land. Since interested members of the public, like the land management agencies themselves, generally have long-term interests in the land and resources involved, groups representing various relevant interests are often known to the agencies, and arrangements can be made to ensure that public participation, where needed in specific cases, occurs in an efficient and effective manner. The Council also recommends programmatic coordination where an agency anticipates participating in numerous undertakings in a general area. Systems for programmatic coordination can be embodied in agency procedures, in memoranda of understanding with interested persons, in Programmatic Agree- ments executed in accordance with 36 CFR § 800.13, and in informal arrange- ments designed to meet specific needs. Upon request, the Council will review such systems and advise agencies of their consistency with the purposes of NHPA ‘ [Section 202(a)(6)]. Agencies should periodically review and revise their programs for coordination with the public to ensure that these programs remain effective and that they provide for participation by those who are interested in current undertakings. 12 Working with Section 106 PUBLIC PARTICIPATION IN SECTION 106 REVIEW _ VI. Methods of public participation on an individual undertaking The Council recommends that agencies use the following methods when arrang- ing for public participation in the review of individual undertakings. As noted elsewhere, arrangements for public participation should be made early in the agency’s consideration of the undertaking, when the widest feasible range of alter- natives is open for consideration [36 CFR § 800.3(c)]. Figure 4 gives a summary of these methods. :7 ' Figure 4: Methods oil'p'Ublic participation ofn' an: individual undertaking Determine the attempt public needed. , ’ c. agent;an imam knowledge 5 I]; "j Determine Whether‘finterested ’ -' Coordinate identificationandovaiuation withintere'sied persons. i F. Coordinate effect deterrnination with interested persons. " - 'L ' ' '- ~> G.»‘Consult with interested adverseoifeets; ' “ - A. Determine the extent of public participation needed. When no arrangements for public participation are needed Normally, Section 106 review begins with an assessment of information needs for identification of historic properties, as outlined in 36 CFR § 800.4(a). At this point, the responsible agency should begin to provide for public participation. In some cases, no specific public participation arrangements may be needed. This may be the case if prior programmatic coordination has shown that there are no "local governments, Indian tribes, public and private organizations, [or] other parties likely to have knowledge of or concerns with historic properties in the area [36 CFR § 800.4(a)(1)(iii)]. An example of such a circumstance might be one in which a local government has carried out programmatic coordination with respect to a neighborhood and found no interest in the neighborhood’s historic, architectural, archeological, or cultural characteristics. Specific arrangements may be unneeded, too, if the undertaking has very little potential for effect on his- toric properties, or if it has some potential for effect, but is identical with or very similar to other undertakings that have in the past generated no public interest, Working with Section 106 13 PUBLIC PARTICIPATION IN SECTION 106 REVIEW When particular pre-arranged forms of public participation are needed When general public participation is needed and there is no reason for believing that public interest now exists that did not exist previously. In other cases, the scale or nature of the undertaking may be such that only a par- ticular pre-arranged form of public participation is needed. For example, an agency undertaking rehabilitation of houses in a historic district might, through programmatic coordination, find that consultation with a neighborhood organiza- tion was the best way to ensure public participation in each of its projects, without the need for wider notification of the public. Similarly, a land managing agency whose undertakings might affect properties of cultural importance to an Indian tribe might establish specific agreements with the tribe and its traditional cultural leaders to ensure that their concerns were identified and addressed, without the need for public participation on a broader scale. In other cases general public participation in Section 106 review may be needed. The further steps outlined below are recommended for such cases; they should be carried out in the context of the agency’s overall public participation process. B. Identify potential participants. The regulations direct agencies to seek information from "local governments, In- dian tribes, public and private organizations, and other parties likely to have knowledge of or concerns with historic properties in the area" [36 CFR § 800.4(a)(1)(iii)] The SHPO should be able to assist the agency in developing an initial list of such parties, each of whom, when contacted, may be able to identify others. In addition to contacting specific groups and individuals, the agency can also notify the public that it has initiated Section 106 review, through articles in local newspapers, media releases, or other appropriate mechanisms, soliciting any information or concerns members of the public may have about potentially af- fected historic properties. C. Seek information from parties with knowledge or concerns. Ways of seeking information People identified as having particular knowledge or concerns should be asked for any information they may have about affected historic properties and for any con- cerns about the undertaking’s effects [36 CFR § 800.4(a)(1) (iii)]. Local governments, Indian tribes, and historic preservation organizations may have official points of contact through which an agency can ask for such informa- tion. Tribes and other Native American groups may also have traditional cultural leaders who are highly knowledgeable about historic properties; seeking informa- tion from such leaders may require the assistance of a trained ethnographer. Contacting small public and private organizations and knowledgeable individuals may also require special efforts. Local historical societies and neighborhood or- ganizations, for example, may not be familiar with government operating proce- dures, and may need help translating their information and concerns into terms that are meaningful to agency planning. 14 Working with Section 106 PUBLIC PARTICIPATION IN SECTION 106 REVIEW Those comacted should be made aware of Section 106 review and the way the agency’s undertaking will be reviewed. They should be asked if they wish to be notified of agency determinations. They should also be advised that the Council oversees Section 106 review and that if they question the way the process is being conducted, they can request Council review of agency findings under 36 CFR § 800.6(e). Their views should be recorded and used in carrying out further steps in the process. D. Determine whether "interested persons" exist. As discussed earlier, the regulations give special roles in Section 106 review to "in- terested persons"; that is, organizations and individuals that are concerned with the effects of an undertaking on historic properties. The agency should apply the definition of "interested persons" to each party identified as having interests in or concerns about historic properties. E. Coordinate identification and evaluation with interested persons. Notification if no historic properties exist The regulations require no specific form of coordination with interested persons during the identification and evaluation phase of Section 106 review [36 CFR §§ 800.4(b) and (c)], but the Council recommends that the agency seek their views, particularly where an interested person has jurisdiction over an area (e.g., a local government or a property owner), or has special knowledge of or interest in a property (e.g., an Indian tribe with an ancestral site, or a historical society with a historic building). If it is determined that no historic properties exist in the area affected by the un- dertaking, the regulations encourage, although they do not require, the agency to "notify interested persons and parties known to be interested in the undertaking and its possible effects on historic properties and [to] make the documentation [that no historic properties exist] available to the public" [36 CFR § 800.4(d)]. Broad dissemination of "no property" findings is encouraged, because public review may reveal historic properties inadvertently missed in the identification ef- fort and help avoid delays later in the undertaking. F. Coordinate effect determination with interested persons. If historic properties are identified, the agency must apply the criteria of effect [36 CFR § 800.9(a)] to the properties, "giving consideration to the views, if any, of interested persons" [36 CFR § 800.5(a)]. If the agency determines that the under- taking will have no effect on historic properties, it must notify the SHPO and “in- terested persons who have made their concerns known," and make the finding "available for public inspection" [36 CFR § 800.5(b)]. If the agency determines that its undertaking will have an effect on historic properties, but that the effect will not be adverse, the agency can obtain the SHPO’s concurrence and notify the Council with summary documentation, which must be made available for public Working with Section 106 PUBLIC PARTICIPATION IN SECTION 106 REVIEW inspection [36 CFR § 800.5(d)(1)(i); also see Section 106, Step-by-Step]. Alterna— tively, the agency can provide the determination to the Council together with the views of "affected local governments, Indian tribes, Federal agencies, and the public, if any were provided, as well as a description of the means employed to solicit such views" and notify the SHPO [36 CFR § 800.5(d)(1)(ii)]. Figure 5 describes methods by which this documentation can be made available to the public [36 CFR § 800.8(a)(5)]. Figures: Making documentation , _V when an agency determines that no historic properties are present. that no effect will; occuri-oh'hlstoric properties, or that an effect will butthat it will not adverse, the gulatlons require that documentation of the determination be made available to the I ublic_[36 CFR s 800.4(d): 890.5(b); 800,5(d)(1)]. This deoumentation enema identify the - __ ndertaking and include a description oi the agency’s efforts to identify historic proper ' “3'90"” (1990699 any such “099?”? 3556.035 (if file") reot'theundertaking and the extent otagenc'y reporting responsibilities ii" ' authorities rather than Section 106. EWhere environmental documents mad availab for public review’tinder NEPA. tor example, notification of agency’s determinatio V ' , canjbje included inisuch' documents. For routinejor small scale” undertakingth may be ‘ sufficient simply‘to' doctfirnentation‘ in.aoency files available forjinspection by the public. as long as such'docu'mentation is also provided to the SHPO and interested scrim required; Documentation madefavailablem meipuolic'aho‘tfld include notifica4 tioi'j toreviewers of their opportunity to request Council review of the agency's finding‘ 36 CFR § 800;‘6(e)(1)].'v :,. some cases. the historic property involved may bevu nerableto van h _ I H amage ll thelr locations or exect descriptions are revealed._ Section. 304 or thetiatlonal Historic PreserVetion Act (16.U.S.C. rim-3) directs Federal agencies;"alter consultation the secretary, lot the interior} [to] Withheld tram disclosure to the public. information - lating to the location or character of historic resou'rces' under 'suchudrcumatances. j_f 1 Procedures to iollow‘ in such cases are outlined intheDepartmentot thelnterior’s j e:.:- 'e:._ ;,e'. E; o‘ele: Ia: - ' In I‘L‘RIIQ I e > W (53 FR 4727-46; February 17, .1988). Deciding on whet er and how to ' withhold such information requires careful balance between the need to protect the _ g , ,L property'tromjdamage. and the need to provide the public with sufficient information to v ' participate aflectively in the Section 106 process." Accrnmonly used compromise ap- ' g g preach involves placing location and detailed descriptive information in confidential pendices’ to the documentation made available to the public,'fimiting the availability of " such appendices to those with a definite need to know. and providing only general infor- ‘hfiation on the location and nature of historic properties in the material openly available ' In order to consider the views of interested persons, the agency should advise them of the agency‘s initial conclusions, either orally or in writing, and request their reactions. The agency should explain the rationale for its determination, with appropriate background data. Working with Section 106 PUBLIC PARTICIPATION IN SECTION 106 REVIEW G. Consult with interested persons about adverse effects. Mandatmy and optional consulting If it is determined that the undertaking will result in adverse effects on historic parties properties, the regulations provide for interested persons to participate in con- sultation about ways to avoid or reduce such effects. Some interested persons who so request must be invited to participate, and in some cases to concur in agreements. These include a local government representative within whose juris- diction the undertaking will occur, an affected applicant for or holder of a grant, permit, or license, and the owner of affected land (see Figure 2). An Indian tribe whose lands are affected by an undertaking must be invited both to participate in consultation and to concur in any agreement. Other interested persons should be allowed to participate in consultation to the extent feasible, but their participa- tion is conditional to the agreement of the responsible Federal agency, the SHPO, and the Council (where the Council participates in consultation). Inviting interested persons to participate The agency should contact any interested persons it has identified, or who have in consultation identified themselves, and ask them if they wish to participate in the consultation. Participation can occur at a number of different levels. A participant can be a full consulting party, taking part in meetings that may take place as part of the consultation process, receiving copies of pertinent correspondence, and negotiat- ing actively with the agency, SHPO, and other parties. Consulting parties should usually be invited to concur in any agreements reached, particularly if an agree- ment specifies actions that these persons will take. At a less intensive level of in- volvement, participants may take part in consultation only with respect to particular aspects of the undertaking, or to effects of particular kinds or effects on particular properties. The agency may choose not to ask such participants to concur in agreements, or the participants themselves, once they have expressed their own views, may choose not to concur in any agreements. Those who participate as consulting parties should be provided with the documentation set forth in 36 CFR § 800.8(b) when consultation is initiated. The consultation thereafter can vary based on the nature of the undertaking and its ef- fects, the agency’s planning system, the project schedule, and other factors. The fact that a person is a consulting party does not automatically mean that he or she must be included in every telephone conversation or informal meeting. Consult- ing parties are free to discuss issues among themselves without involving other consulting parties, but must involve other consulting parties in such formal ac- tions as the conduct of public meetings, on-site inspections of areas pertinent to their interests, and the exchange of documents. All parties should approach consultation as a good-faith effort to resolve conflict between historic preservation interests and the needs of the undertaking, by ex- ploring alternatives to avoid or reduce the adverse effects of the undertaking. Consultation should be carried out with the intent of reaching an agreement ac- ceptable to all consulting parties, and of ensuring that the concerns of all other participants have been identified, thoughtfully considered, and if possible, resolved. Working with Section 106 17 PUBLIC PARTICIPATION IN SECTION 106 REVIEW If a consulting party other than the Federal agency, the SHPO, or the Council will not execute or concur in a Memorandum of Agreement (MOA), the agency, SHPO, and Council are not prohibited from executing it. Objections by inter- ested persons to MOAs in preparation, however, should be given full and careful consideration, whether or not such person are consulting parties. Participation in review by the public in The public in general must be given "an adequate opportunity...to receive infor— general mation and express their views" [36 CFR § 800.5(e)(3)] during the consultation. This can be done in a variety of ways, again depending on the scope of the project and its effects, the agency’s planning process, and other factors. Pertinent documentation should be made available for public inspection, and the status of Section 106 consultation should be reported at public hearings or meetings or in pertinent documents that are part of its projects planning or environmental review activities. Meetings with particular groups or individuals, or general public meetings, may be held by the agency, the SHPO, or the Council [36 CFR § 800.5(e)(3)]. H. Report the conclusion of Section 106 review to interested persons. The Council recommends that interested persons be notified of the conclusion of Section 106 review once the agency has completed the process and, where ap- plicable, obtained the Council’s comments. — VII. Documenting public participation The reason for documenting the agency’s public participation efforts is to permit reviewers, including Federal courts in the event of litigation, to review the record and determine whether the agency’s efforts have been adequate and reasonable. Generally, the Council has found it easiest to review documentation organized around a chronological summary that outlines the steps taken to provide for public participation and the results of these actions, along with reports, copies of written comments, summaries of meetings, and similar supporting documents at- tached where pertinent. Documentation when no historic properties are found or no effect is determined The regulations do not require that specific documentation of public participa- tion be prepared when no historic properties are found, or when the undertaking is found to have no effect on historic properties. It has been the Council’s ex- perience that it is prudent, however, to describe as appropriate public participa- tion efforts and their results, in identification reports, environmental documents, agency files, and elsewhere, as well as in the documentation provided to the SHPO and others pursuant to 36 CFR §§ 800.4(d) or 800.5(b). Where a "no adverse effect" determination is reported to the Council, specific documentation of public participation efforts is required by 36 CFR § 800.8(a)(5). Where "adverse effect" is determined and further consultation results in an MOA, the agreement when submitted to the Council must be accom- panied by "a summary of the views of. . .any interested persons" [36 CFR § Documentation when no adverse effect is determined 18 Working with Section 106 PUBLIC PARTICIPATION IN SECTION 106 REVIEW Information to include in an agency’s record of public participation 800.8(c)]. If an agreement is not reached and the Council’s comments on the un- dertaking are sought as a result, the agency must document its "efforts to obtain and consider the views of affected local governments, Indian tribes, and other in- terested persons," together with "copies 0r summaries of any written view sub- mitted" by such persons or others [36 CFR §§ 800.8(d)(8) and 800.8(d)(10)]. Generally speaking, a reviewer of an agency’s record of public participation should be able to answer the following questions from the available documents: I What general efforts did the agency make to ensure that the public was aware that the undertaking was being planned, and that Section 106 review was being carried out? I What particular elements of the public were contacted for information or to identify concerns? Why were these particular elements of the public chosen over others? I What groups and individuals, if any, were identified as interested persons? How were interested persons involved in the Section 106 review process? I What concerns were identified, and what was done about these concerns? — VIII. Approaches to situations involving numerous interested persons Developing strategies to provide for ' large numbers of interested persons Where a large undertaking is reviewed under Section 106, with widespread poten- tial effects or many alternatives, it is possible that large numbers of people and groups request the opportunity to participate as interested persons. The regula- ti0ns do not require that all interested persons be invited to be consulting parties, but they do require that persons falling into certain categories be invited. As a result, it is possible for the number of consulting parties to become quite large. For example, a large project with many alternatives could affect hundreds or even thousands of landowners, who must be invited to be consulting parties if they so request [36 CFR § 800.5(e)(1)(iii)]. Agency public participation processes should be designed to provide for large numbers of consulting parties, as needed in a balanced and reasonable manner. Agencies should consult with SHPOs and the Council about ways to keep consult- ation from becoming unwieldy. Some possible strategies include I distinguishing carefully between formal consulting parties and other interested persons, including in the former category only those required to be accorded consulting party status by the regulations and those whose participation clearly will advance the objectives of Section 106 [36 CFR § 800.1(c)(2)]; I requesting that consulting parties name one or a few representatives to take an active role in consultation on the parties’ behalf; Working with Section 106 I9 PUBLIC PARTICIPATION IN SECTION 106 REVIEW I using public information meetings, workshops, or similar devices to identify major interest groups and their representatives in consultation or other forms of participation; I breaking up the process of review so that it addresses different alternatives or different kinds of effects at different times, allowing participants to seek resolu tion of particular concerns without having to participate in consultation regarding the entire undertaking; and I the number of consulting parties asked to concur in agreements to those with key interests in or concerns about the undertaking. — IX. Public participation in Programmatic Agreement development The regulations permit agencies to develop "Programmatic Agreements" (PAs) with the Council, covering entire agency programs, in lieu of review of individual undertakings [36 CFR § 800.13]. PAs are appropriate where a program results in undertakings that have repetitive effects on historic properties, where effects can- not be fully determined in advance of Federal decisionmaking where non-Federal parties have major decisionmaking responsibilities, and where general land- management planning or routine Federal installation management is involved. Under 36 CFR § 800.]3(c), the Council is responsible for arranging for public in- volvement “appropriate to the subject matter and the scope of the program." Participation when a Programmatic Where a PA is national in scope, the Council may publish notice in the Federal Agreement is national in scope Register or undertake other general notification that consultation has been in- itiated. This notification must occur early in the consultation process, but not before an initial draft agreement or at least an outline of issues to be considered is developed, so that respondents to the notice will be able to receive a document on which to comment. The Council also notifies organizations and other parties known or thought to be interested in the agreement’s subject matter. Where a PA affects a smaller region or a single State, the Council uses press releases and similar devices, and direct mail contacts with potentially interested persons iden- tified by the agency, the SHPO, and others, in lieu of or to supplement Federal Register publication. Public meetings may be held, and interested persons may be invited to consult and to concur in PAs. Participation when PAs are used with PAs are sometimes used with respect to programs for the rehabilitation of programs of local governments residential, commercial and industrial areas carried out by local governments using Community Development Block Grants and other funds provided through the Department of Housing and Urban Development (HUD). In such cases, the Council will normally regard the local government‘s fulfillment of the public par- ticipation requirements set forth at 24 CFR §§ 58.55 through 66 as sufficient to ensure public participation in PA development. ‘ Including public participation Often, because of the programmatic nature of the activities covered by a PA, it provisions in PAs may be difficult to identify some segments of the public who may have concerns about them, or to identify effects with much certainty at the time the PA is 20 Working with Section 106 — “N”..- a».st t q..." PUBLIC PARTICIPATION IN SECTION 106 REVIEW developed. In such cases the PA itself must be designed to include provision for effective public participation in its implementation. The measures of adequacy for such a public participation program are generally the same as those applied to an agency public participation program under Part IV of these guidelines. — X. Conclusion The Council values the views of the public on historic preservation questions and encourages maximum public participation in the Section 106 process [36 CFR § 800.1(c)(2)(iv)]. The Council encourages full integration of public participation under Section 106 review and the regulations with other agency programs of plan- ning and public participation. Agencies should ensure that such programs make the public fully aware of historic preservation issues; fully elicit expressions of public interest, knowledge, and concern; and wherever possible resolve conflicts between agency mission requirements and the historic preservation interests held by members of the public. Members of the public are encouraged to view the op- portunities afforded them by the regulations as opportunities to work with, rather than against, Federal agencies to ensure that the pursuit of agency programs does not cause undue damage to historic properties, but rather, where possible, results in the enhancement of such properties. Working with Section 106 21 _ ...
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This note was uploaded on 06/08/2009 for the course CEE 4620 taught by Professor Gensler during the Spring '09 term at Georgia Institute of Technology.

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