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The purpose of these procedures is to provide guidance to the Indiana Department of Transportation (INDOT), Local Public Agencies (LPAs) and their consultants on how the Indiana Division will accomplish FHWA's responsibilities under the revised Section 106 Regulations (36 CFR 800, effective January 11, 2001) for FHWA projects under development in the INDOT Scheduling Project Monitoring System (SPMS).
These procedures are not intended to be used as a substitute for the Section 106 regulations or the Section 106 guidance issued by the ACHP. Applicants, consultants, and others responsible for preparing Section 106 documentation for FHWA review should carefully review not only these procedures but also the Section 106 regulations themselves and the related guidance materials on the ACHP's web site. In particular, when questions arise concerning the meaning of particular provisions in the Section 106 regulations, it is important to review the "Section-by-Section Questions and Answers" in the ACHP's Section 106 User's Guide. The User's Guide is available on the ACHP's web site at http://www.achp.gov/usersguide.html. In the event of any inconsistency between these procedures and the Section 106 regulations or the ACHP's guidance, the Section 106 regulations and ACHP guidance will take precedence.
These procedures are intended to be flexible and adaptable. They may be revised from time to time by FHWA to achieve further improvements in the Section 106 process. In addition, FHWA may choose to adopt different procedures, in the context of a particular project, without modifying this document. These procedures are intended only as a general guide; they are not intended to create any new binding legal requirements, nor are they intended to create enforceable legal rights or obligations on the part of FHWA, INDOT, MPOs, or any other party.
All FHWA Federal-aid construction projects that are located partly or entirely in Indiana and that require early coordination qualify as "undertakings" as defined in 36 CFR 800.16(y) and are subject to these Section 106 consultation procedures. Such projects are referred to in these procedures as "FHWA-IN projects."
FHWA will be the lead Federal agency for purposes of Section 106 consultation for all FHWA-IN projects, unless the FHWA Indiana Division Office specifically approves alternative arrangements.
Per 36 CFR 800.2(c)(4), FHWA will oversee the work performed by the applicant and will remain legally responsible for all findings and determinations required by federal law. The level of involvement by FHWA will reflect the complexity of the historic preservation issues involved in a project, and will be determined on a case-by-case basis, taking into account any views expressed by the applicant, the SHPO, the ACHP, and/or consulting parties. Once the Section 106 consultation is concluded along with all other environmental requirements, the FHWA will finalize the National Environmental Policy Act (NEPA) process for the project so the project can be advanced to final design, right-of-way acquisition, and construction.
For purposes of these procedures, the "applicant" is defined as the owner of the roadway/bridge (INDOT or LPA). FHWA hereby authorizes applicants for all FHWA-IN projects to initiate Section 106 consultation on behalf of FHWA in accordance with these procedures to the fullest extent allowed under 36 CFR 800.2(c)(4), unless otherwise directed by the FHWA Indiana Division Office.
Applicants, their designees, and their consultants may prepare information, analyses, and recommendations as part of the Section 106 process, in accordance with 36 CFR 800.2(a)(3). To clarify the scope of this activity, the following guidance is provided:
Where deemed appropriate by FHWA, the applicant or their consultant will organize a Section 106 Consultation Meeting and invite consulting parties. If a Section 106 Consultation Meeting is held, the following procedures apply:
Section 106 Consultation Meetings will allow FHWA to consult with the applicant, the State Historic Preservation Officer (SHPO), and consulting parties regarding issues that may arise in the Section 106 process. This consultation will facilitate consideration of all reasonable alternatives, encourage preservation where appropriate, and result in timely decisions.
Unless otherwise directed by FHWA, Section 106 documentation that is prepared by an applicant, designee, or consultant may be distributed to the SHPO and consulting parties (or otherwise made publicly available) in draft form, provided that such documentation is clearly identified as "draft" documentation that has not yet been approved by FHWA.
Whenever Section 106 documentation is provided to the SHPO and consulting parties, whether in draft or final form, the following procedures should be followed:
The Indiana Division of FHWA has issued procedures to guide the development of Environmental Impact Statements (EISs) in Indiana. These procedures, titled "Indiana's Streamlined EIS Procedures," can be found on our web site at http://www.fhwa.dot.gov/indiv/procedur.htm.
They include references to the FHWA-IN Section 106 Procedures as the basis for accomplishing Section 106 consultation for EIS projects. The FHWA generally will have a higher level of day-to-day involvement in the Section 106 process for EIS projects. Due to the complexity of EIS projects, the FHWA (in consultation with the Project Coordination Team and the SHPO) may elect to adopt a phased approach to compliance with Section 106 for these complex projects, in accordance with 36 CFR 800.4(b)(2) and 800.5(a)(3). In addition, particularly in the context of EIS projects, FHWA may choose to incorporate the required Section 106 documentation into the EIS, as provided in 36 CFR 800.8.
Per Section 304 of the National Historic Preservation Act and Section 9(a) of the Archaeological Resources Protection Act, we request that specific archaeological site locations not be included in documentation made available to consulting parties and the general public. Detailed archaeological reports may only be provided to professional archaeologists and only after consultation with the SHPO. Summary documentation of any archaeological work should be included in the documentation supporting FHWA's findings. This will minimize the potential for endangerment of sites from vandalism.
FHWA has authorized applicants to initiate Section 106 consultation on behalf of FHWA. See Part II-B-3, above. This authorization includes but is not limited to the authority to invite "consulting parties" to participate in the Section 106 consultation process.
In the case of INDOT, it is acceptable for the invitation to be a consulting party be signed by the Commissioner or the Commissioner's designee; in the case of counties, it is acceptable for the invitation to be signed by two of the three county commissioners; in the case of cities and towns, it is acceptable for the invitation be signed by the mayor or their designee.
Pursuant to 36 CFR 800.2(c)(1)-(5), certain entities are entitled to participate as consulting parties. All such entities should be invited to participate as consulting parties. In addition, pursuant to 36 CFR 800.2(c)(6), individuals and organizations with a "demonstrated interest in the undertaking" may be allowed to participate as consulting parties. To facilitate the involvement of all consulting parties, under 800.2(c)(1)-(6), the following procedures should be followed (in addition to those defined in 36 CFR Section 800.3):
The applicant should include the following paragraph in all early coordination letters addressed to all affected local agencies, and other potential consulting parties (as defined below):
"Section 106 of the National Historic Preservation Act requires Federal agencies to take into account the effects of their undertakings on historic properties. In accordance with 36 CFR 800.2(c), you are hereby requested to be a consulting party to participate in the Section 106 process. This process involves efforts to identify historic properties potentially affected by the undertaking, assess its effects and seek ways to avoid, minimize or mitigate any adverse effects on historic properties.
Please return the enclosed postcard and check if you "do" or "do not" agree to be a consulting party. If you indicate on the postcard that you do not desire to be a consulting party, or if you do not return the postcard at all, you will not be included on the list of consulting parties for this project."
For purposes of this paragraph, "other potential consulting parties" include the following, as well as any other parties identified by the SHPO:
In addition, the following paragraph should be included in the early coordination letter to the SHPO:
Including this paragraph allows the SHPO to identify additional Indian tribes or potentially interested parties that are not included in the above listings.
Per 36 CFR 800.3(f)(3), others may request to be invited to be a consulting party. If the applicant agrees with the request, they shall be added to the list of consulting parties and notified accordingly. If there is disagreement, the applicant or their consultant shall forward the request and an explanation of the disagreement to FHWA for action/response.
Where information available during the early coordination stage indicates a significant possibility of an adverse effect, the applicant or their consultant should convene a Section 106 Consultation Meeting. The meeting should be held after consulting parties have been identified and in the early stages of the alternatives analysis. This meeting will enable FHWA to provide guidance regarding the range of alternatives to be considered, the area of potential effect, the identification and evaluation of potentially eligible properties, and other issues, and will allow FHWA to seek feedback from consulting parties regarding these issues and follow-up activities.
The Section 106 Consultation Meeting during the early coordination stage and the Section 106 Consultation Meeting on the draft Section 800.11(e) documentation will provide opportunities for FHWA to seek, discuss, and consider the views of consulting parties, and where feasible, seek agreement among them. Depending upon the complexity of the project, additional Section 106 Consultation Meetings or other informal meetings with various participants in the Section 106 process may be required to achieve this goal.
If the project involves potential impacts to or replacement of a historic bridge, FHWA will initiate efforts as early as possible to consider alternatives, such as alternatives that would involve transferring ownership to parties who are interested in preserving the structure at its existing location, or at some alternate location. A list of alternatives to be considered can be found at http://www.fhwa.dot.gov/indiv/brdgaltr.htm.
The list of alternatives posted on the web page is not all inclusive; if an alternative discovered during the development of the project is reasonable, or if the SHPO or any consulting party proposes a reasonable avoidance alternative, it too should be documented in the Section 106 analysis. The applicant or their consultant should post the historic bridge on the INDOT Historic Bridge web site, http://www.in.gov/dot/programs/bridges/
prior to the initial Section 106 Consultation Meeting for a project that would impact or replace a historic bridge. Applicants or their consultants can contact the INDOT Division of Environment, Planning, and Engineering to have a historic bridge added to the web site.
Pursuant to 36 CFR 800.2(a)(3), applicants, their designees, and their consultants may collect information and prepare documentation to assist FHWA in completing the activities required under 36 CFR 800.4, "Identification of Historic Properties." This documentation should propose a definition of the Area of Potential Effect (APE) and evaluate the eligibility of properties within the proposed APE for the National Register of Historic Places. For many projects, the FHWA determinations and findings template at http://www.fhwa.dot.gov/indiv/finding.htm may be used by the applicant or consultant to recommend to FHWA an APE definition, eligibility determination(s), and effect finding. The APE, eligibility determinations, and effect findings can be made as separate findings, or combined as adequate information is available. Where sufficient inquiry has been completed in advance of issuing the early coordination letter, the FHWA approved finding(s) may be distributed in conjunction with the early coordination letter for a 30-day comment period.
The documentation prepared under 36 CFR 800.4 should, by the end of the eligibility stage of the process, clearly reflect the conclusions of FHWA and the SHPO regarding the National Register status of the evaluated properties within the APE.
Any consulting party may object to FHWA's eligibility determination or determinations. The applicant or their consultant may analyze the objection, and if the applicant or their consultant believes the objection is valid, the applicant or their consultant should submit to FHWA a revised eligibility recommendation to incorporate the change suggested by the consulting party. The applicant or their consultant shall include the rationale for revising the previous eligibility recommendation when it is submitted to the FHWA. The revised eligibility recommendation(s) may be submitted immediately following the resolution of the consulting party's objection, or it may be incorporated into the next step in the process when FHWA makes the next Federal finding in the Section 106 process. For example, the revised eligibility recommendation may be submitted to FHWA at the same time the effect finding recommendation is submitted for approval. The revised eligibility recommendations, approved by FHWA, shall be submitted to all consulting parties for a 30-day comment period.
If after analyzing the objection the applicant or their consultant disagrees with the consulting party's objection, the applicant or their consultant should forward the relevant documentation to FHWA with a recommended eligibility determination for resolution. FHWA will review the documentation, request additional information if necessary, and obtain a determination of eligibility, if appropriate, from the Department of the Interior, pursuant to 36 CFR Part 63 (per 36 CFR 800.4(c)(2)). The FHWA review described in this paragraph is in addition to the normal FHWA review and approval of the eligibility findings at the completion of the eligibility evaluation stage of the Section 106 process.
Upon completion of early coordination with consulting parties and efforts to identify historic properties, if the applicant or their consultant believes that no historic properties are present or that historic properties are present but the project will have no effect on those historic properties (as defined at 36 CFR 800.16(i)), the applicant or their consultant should proceed as follows:
The SHPO may object to FHWA's "no historic properties affected" finding. The applicant or their consultant should analyze the objection to the finding. If the applicant or their consultant agrees the objection is valid, the applicant or their consultant should proceed to the "Assessment of Effects" stage of the Section 106 process. The applicant or their consultant, after assessing the effects, should submit to FHWA a recommendation to revise the "no historic properties affected" finding, and describe the rationale for revising the previous recommendation. The finding and appropriate documentation shall be provided to all consulting parties in accordance with these Section 106 procedures.
If the applicant or their consultant analyzes the objection and disagrees with the objection, the applicant or their consultant should consult with FHWA. If FHWA agrees the objection is valid, the applicant or their consultant should proceed to the "Assessment of Effects" stage of the Section 106 process. The applicant or their consultant, after assessing the project effects, should submit to FHWA a recommendation to revise the "no historic properties affected" finding. The finding and appropriate documentation shall be provided to all consulting parties in accordance with these Section 106 procedures.
If the FHWA disagrees with the objection, FHWA and the applicant or their consultant will host a Section 106 Consultation Meeting and invite consulting parties. If such a meeting is held, the following procedures should be followed:
Where appropriate, FHWA will forward the documentation with the FHWA effect finding to the Council to review the finding pursuant to 36 CFR 800.9(a). If the Council does not respond within 15 days of the receipt of the FHWA finding, FHWA may assume concurrence with FHWA's finding. After the 15 day time period expires, or after FHWA receives and considers the Council's advisory opinion on FHWA's effect finding, the FHWA will issue a letter to all consulting parties documenting FHWA's finding.
If FHWA concludes that properties eligible for inclusion in the National Register may be affected, the consultation process will proceed in accordance with 36 CFR 800.5.
FHWA encourages the use of phased identification and evaluation of National Register resources for projects involving alternatives that consist of corridors or larger land areas, pursuant to 36 CFR 800.4(b)(2). When an applicant believes such an approach is appropriate, the applicant should consult with FHWA.
Applicants, their designees, and consultants may prepare documentation to assist FHWA in completing the activities required under 36 CFR 800.5, "Assessment of Adverse Effects." This documentation typically will include reports applying the criteria of adverse effect to each National Register eligible property within the area of potential effect.
Based on the effects documentation, as well as consultation involving the FHWA, the SHPO, and consulting parties, the applicant or their consultant should recommend to FHWA a "no adverse effect" or "adverse effect" finding for each of the evaluated properties within the area of potential effects. The applicant should proceed as follows:
For "Adverse Effect" findings, a Public Notice should be issued to solicit comments from the public regarding the proposed project, the adverse effect finding, and resolution of adverse effects. The Public Notice should include the following statement:
"Per the National Historic Preservation Act, the views of the public are being sought regarding the effect of the proposed project on (**list specific historic property or properties involved**), per 36 CFR 800.2(d), 800.3(e), and 800.6(a)(4). Pursuant to 36 CFR 800.6(a)(4), the documentation specified in 36 CFR 800.11(e) is available for public inspection in the INDOT Division of Environment, Planning, and Engineering Office in Indianapolis which serves as the basis for the Federal Highway Administration's 'adverse effect' finding. The views of the public on resolving the adverse effects of the undertaking are being sought."
Under 36 CFR 800.5(c), the SHPO has 30-days from receipt of an adequately documented finding by FHWA to take exception to the finding. Under these procedures, the same 30-day time period will apply to comments from consulting parties and the public.
For "No Adverse Effect" findings, if no one disagrees with the finding after the 30-day consultation and public comment period, the Section 106 process is concluded.
For "Adverse Effect" findings, if no one disagrees with the finding after the 30-day consultation and public comment period, the Resolution of Adverse Effect stage of the Section 106 process may begin.
The SHPO or any consulting party may object to FHWA's "no adverse effect" finding. The applicant or their consultant should analyze the objection to the finding. If the applicant or their consultant agrees the objection is valid, the applicant or their consultant should submit to FHWA a recommendation to revise the "no adverse effect" finding, and describe the rationale for revising the previous recommendation. The finding and appropriate documentation shall be provided to all consulting parties, consistent with the Section 106 regulations, and in accordance with these Section 106 procedures.
If the applicant or their consultant analyzes the objection and does not consider the objection valid, the applicant or their consultant shall consult with FHWA. If FHWA agrees the objection is valid, the applicant or their consultant should proceed to document FHWA's finding as directed by FHWA. The applicant or their consultant shall provide all consulting parties with FHWA's finding and the appropriate documentation, consistent with the Section 106 regulations, and in accordance with these procedures.
If the FHWA does not agree with the objection to an FHWA finding of "adverse effect" or "no adverse effect" the applicant or their consultant should host a Section 106 Consultation Meeting and invite all eligible consulting parties. If such a meeting is held, the following procedures should be followed:
Where appropriate, FHWA will forward the documentation with the FHWA effect finding to the Council to review the finding pursuant to 36 CFR 800.9(a). If the Council does not respond within 15 days of the receipt of the FHWA finding, FHWA may assume concurrence with FHWA's finding. After the 15 day time period expires, or after FHWA receives and considers the Council's advisory opinion on FHWA's effect finding, the FHWA will issue a letter to all consulting parties documenting FHWA's final finding.
A Section 106 Consultation Meeting may be held at any time to discuss the evaluation of effects, even in the absence of a specific disagreement or dispute.
FHWA encourages phased application of the criteria of adverse effect for projects involving alternatives that consist of corridors or larger land areas, pursuant to 36 CFR 800.5(a)(3). When an applicant believes such an approach is appropriate, the applicant should consult with FHWA.
The FHWA and the applicant, in consultation with the SHPO and other consulting parties, should develop and evaluate alternatives or modifications to the undertaking that could avoid, minimize or mitigate adverse effects on historic properties.
If an "adverse effect" finding has been made, the applicant or their consultant should proceed as follows:
If a disagreement arises between the applicant, FHWA, and/or the SHPO regarding resolution of adverse effect, there may need to be an additional Section 106 Consultation Meeting(s) involving the Advisory Council on Historic Preservation (ACHP). If such a meeting is held, the following procedures should be followed:
The Section 106 consultation meetings will play a key role in assuring that a reasonable range of alternatives is considered and that a full range of preservation options is considered. It is hoped that face-to-face consultation with the applicant and the SHPO will result in Section 800.11(e) documentation and a draft MOA all parties agree upon. While it is desirable that such consultation occur in advance of the Public Notice, it is acceptable for this dialog to occur/continue during the public involvement process.
Upon completion of the above consultation and associated public involvement process, the next step is to complete a Memorandum of Agreement (MOA). There are three activities to complete. First, the mitigation stipulations should be negotiated and agreed upon by the signatories to the MOA. Second, a draft MOA should be prepared and circulated to the signatories for review and comment. Third, the signatures should be obtained on the MOA and distributed appropriately.
For most projects, the project sponsor, or their consultant, may coordinate the mitigation stipulations amongst the signatories. If the mitigation stipulations cannot be agreed upon informally amongst the signatories, the project sponsor or their consultant should notify FHWA and coordinate a Section 106 consultation meeting to resolve the disagreement.
Once the mitigation stipulations are agreed to by all signatories, the project sponsor or their consultant should prepare a draft MOA. The draft MOA should follow the template at:
http://www.fhwa.dot.gov/indiv/moatempt.htm
At the bottom of each page of the MOA, include a footer that contains information about the project, including a brief project description, INDOT Designation Number, and the version date of the MOA. The version date of the MOA should reflect the date that the MOA is sent to the signatories for review and comment. Depending upon the number of revisions that are required to finalize the terms of the MOA, the version date may change several times. Once the signatories agree to the terms, the version date on the MOA should not change unless additional modifications to the terms are required and agreed to by the signatories.
Once all signatories are satisfied with the MOA, the project sponsor or their consultant must obtain signatures from all signatories. For all FHWA undertakings requiring an MOA, the required signatories include the Indiana SHPO and FHWA. The Indiana Department of Transportation must be invited to be a signatory on all MOAs. For Local Public Agency (LPA) projects, the appropriate representative(s) of the LPA must also be invited to be a signatory. If any other agency or entity has specific responsibilities under the MOA, they too should be an invited signatory. Finally, if the ACHP is involved in consultation, they will also be a required signatory.
FHWA uses a concurrent process for obtaining signatures. Therefore, the project sponsor or their consultant should prepare a separate signature sheet for each signatory. Each signature sheet must have a footer, with the information described above, on each signature page. The version date on the signature page and the MOAs must be the same. The MOA distributed for signatories must be exactly the same as the version that all signatories previously reviewed and agreed to sign. If ANY changes are made to the MOA after the signatories have already agreed upon the terms, then the revised MOA must be circulated for review and comment before signatures are obtained.
The project sponsor or their consultant should provide, in writing, each signatory with a copy of the MOA and each signature page. The MOAs provided to the signatories must be identical, they must contain the terms that the signatories agreed to previously, and they must show the same version date. The written request should ask the signatory to review and sign the signature sheet within 30-days of receiving the documents. Each signatory should only return their signed signature sheet page. FHWA encourages each signatory to retain a copy of the MOA they receive so that each signatory may compare the MOA they sign with the final MOA that contains all the signatures.
After the project sponsor receives all signature pages back from the signatories, the project sponsor must make copies of the MOA and include all completed signature pages. The project sponsor must distribute copies of the MOA and with all completed signature pages to each signatory and to all consulting parties. The project sponsor must submit a copy of the MOA with the original signatures to the FHWA, along with the documentation identified in 36 CFR 800.11(f). The FHWA will submit the MOA, along with the appropriate documentation, to the Advisory Council on Historic Preservation. The submittal of the MOA to consulting parties and to the Advisory Council concludes FHWA's procedural requirements under Section 106. The environmental document for the project may not be approved until after the FHWA has filed the MOA with the Advisory Council on Historic Preservation.
FHWA hereby requests that the applicant or their consultant forward the documentation set forth in Section 800.11(g) as soon as it is determined that the SHPO is unwilling to sign the MOA. Per 36 CFR 800.6(b)(1)(v), FHWA should request the Advisory Council to join the consultation and provide the Council with the documentation set forth in Section 800.11(g).
Per Section 800.6(b)(2), if the Advisory Council decides to participate in the consultation, FHWA will consult with the consulting parties and Advisory Council to seek ways to avoid, minimize or mitigate the adverse effects. If FHWA, SHPO, and the Council agree on how the adverse effects will be resolved, they should execute a MOA
After consulting to resolve adverse effects pursuant to Section 800.6(b)(2), FHWA, SHPO, and Advisory Council may determine that further consultation will not be productive and terminate consultation. Any party that terminates consultation should notify the other consulting parties and provide them the reasons for terminating in writing. Per 36 CFR 800.7(a)(2), if the SHPO terminates consultation, FHWA and the Advisory Council may execute a MOA. If FHWA terminates consultation, the FHWA Administrator shall request that the Council comment pursuant to 36 CFR 800.7(c)
