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Section 106 Consultation

Section 106 of the National Historic Preservation Act (NHPA) of 1966, as amended, requires federal agencies take cultural resources into account when planning projects. A summary of Section 106 regulations and how to use them may be found on the web site of the Advisory Council on Historic Preservation(ACHP).

What is the Section 106 bottom line?
All federally funded or permitted projects must be reviewed for impacts to cultural resources including historic buildings, structures, landscapes, sites, and archeological sites.

What sorts of projects are federally funded?
Federally funded projects include levees developed by the U.S. Army Corps of Engineers and highways funded by the Federal Highway Administration through the Kansas Department of Transportation (KDOT). Federal funding can also include less obvious projects such as those developed with money provided by the U.S. Department of Housing and Urban Development (HUD) through Community Development Block Grants (CDBG). These grants are administered through the Kansas Department of Commerce (KDOC), but since the source of funding is federal, Section 106 regulations apply. Communities often find that projects such as waste water treatment improvements fall under Section 106 due to the original origin of the funding.

Borrow Areas
Certain KDOT projects require the construction contractor to borrow fill dirt from other locations. That activity too must be reviewed for any impact on possible archeological sites. Contractors involved in such projects should use the following form to submit their project information.
Borrow Area Request form (PDF)
Borrow Area Request completed form example (PDF)

How about federally permitted projects?
The most commonly encountered permits are those issued by the U.S. Army Corps of Engineers (COE), the Environmental Protection Agency (EPA), the Federal Energy Regulatory Commission (FERC) and the Federal Communications Commission (FCC). COE permits generally involve projects such as bridges, pipeline crossings over streams, and projects that involve changes to stream channels or flood plains. FERC permits are required for natural gas pipelines and related facilities, while FCC permits are issued for cell towers. Housing and Urban Development (HUD), Rural Development Agency (RDA), and Federal Deposit Insurance Commission (FDIC) often issue loans and permits for housing rehabilitation.

Who reviews the projects?
Each state has a State Historic Preservation Officer or SHPO. The Kansas SHPO is Jennie Chinn, Executive Director of the Kansas State Historical Society (KSHS). As no SHPO is an expert in every subject, each has a staff. At the KSHS, this staff is known as the State Historic Preservation Office, which is part of the Cultural Resources Division.  Staff may be reached by calling 785-272-8681 ext. 240 or by emailing kshs.shpo@ks.gov.

When should I contact the Kansas SHPO?
The Kansas SHPO should be contacted as early as possible in the project development process. SHPO staff can offer guidance and help to avoid known archeological sites or areas likely to contain sites. Also, contacting us early will allow us to determine if the building you are working on is listed or eligible for listing in the National Register of Historic Places.

Should I contact anyone else?
The Section 106 regulations require federal agencies or their designees to plan for involving the public in the process. Steps should be taken early in the project to identify as many individuals, organizations, local governments, and American Indian tribes as possible who may have an interest in the project’s impact on historic and cultural resources. See 36 CFR Part 800 for further guidance on public involvement. American Indian tribes with potential consultation interests in Kansas are listed here.

How do I submit a project for review?
The Kansas SHPO accepts requests for review under Section 106 only via the Kansas Review & Compliance online submission system. To submit a request, click the “Submit Your Project” button in the left sidebar.

If possible, communications towers or collocations should be submitted using the FCC's E-106 system instead.

Who submits the project for review?
In most cases, the design/engineering firm or grant administrator charged with project oversight submits documentation for review.  Some federal agencies, most notably the Army Corps of Engineers (COE), the Bureau of Reclamation (BOR), and the Department of Defense (DOD) submit their own projects directly to SHPO.

What should be included in a request for review?
The person submitting the request for review should access the Kansas Review & Compliance online submission system at review.kshs.org/Account/Login to create an account and/or login to the system. Start the request by selecting “Create New Project” from the left tool bar. The system will ask for basic project data including project name, description, type, and location. Included questions also ask about the property’s Register-listing status, the nature of the project, and the involvement of either federal, state, or local governmental entities. You will need to know the name of the federal agency providing the funding or requiring the permit. There is also space for the applicant to add contact information for any additional people working with the request. The system will allow you to upload multiple documents, maps, plans, drawings, specifications, historical documents, and photographs to further illustrate and explain the project. Projects involving ground-disturbing work must include an aerial or quadrangle map of the project area. Projects involving above-ground resources such as buildings or structures must include photos of those resources.

How long does a review take?
By law, the Kansas SHPO is allowed 30 days for review. In practice, most reviews are completed in less than two weeks. Projects are reviewed in the order that they arrive. Within reason, requests for expedited reviews are considered.

What is the outcome of a review involving buildings or structures?
After reviewing the description of work, plans, and photos submitted by the applicant, SHPO staff will determine the following:
1. The National Register eligibility of the building or structure
2. If found to be eligible, the effect of the project on the building or structure.
If the structure is found to be not eligible for the National Register, the project may proceed without further review. If the structure is found to be eligible, the project must meet the Secretary of the Interior's Standards for the Treatment of Historic Properties. If the project does not meet the Standards, the process proceeds to consultation about ways to avoid the adverse impact to the historic property. If the project cannot be avoided, consultation begins to hopefully minimize and mitigate the effect of the project. Mitigation can take many forms including detailed documentation of the historic property, moving a historic building or structure, nomination of another similar property to the National Register of Historic Places, and even setting aside funds to help preserve other historic properties in the area.

What is the outcome of an archeological review?
The SHPO Archeologist performs a Phase I investigation, examining archeological site files, maps, and other background information for the project area. If in his/her judgment, the proposed project area has low potential for containing archeological sites, a clearance letter issued via the Kansas Review & Compliance online submission system and the process is complete. If, on the other hand, the area has good potential for containing sites or if recorded sites are present, a letter requesting an archeological survey is sent. Since staff time is limited, review of particularly large projects such a major pipelines cannot always be accommodated. In such cases, a letter will be sent recommending that a consultant be hired to perform the Phase I investigation. Once the consultant has completed an examination of background information, the results are submitted to the SHPO Archeologist who will then decide whether or not a survey is necessary.

Access archeological site and survey GIS data.

What does an archeological survey involve?
In most cases, an archeological survey (referred to as a Phase II investigation) is conducted by systematically walking over the project area, looking for prehistoric and/or historic artifacts. If surface visibility is poor, shovel testing may be employed. Using this technique, holes are excavated at regular intervals in order to examine the subsurface. In river/stream valley settings, deep testing for buried archeological sites is sometimes necessary. This type of testing in most cases is conducted using a backhoe to examine subsurface areas beneath the reach of shovel testing. Find more information in a guide to field procedures and report standards.

Who does the archeological survey?
Qualified consultants who have asked for inclusion may be found on this list compiled by SHPO staff. Surveys may be conducted by consultants not found on that list, but if that course of action is chosen, the Kansas SHPO staff should be consulted prior to beginning fieldwork to ensure that the consultant is qualified. In fairness to all, Kansas SHPO staff cannot recommend one consultant over another, nor can they comment on cost estimates.

Who pays for the archeological survey?
In the case of federally funded projects, the responsible federal agency pays for the survey and for any additional investigations that ultimately might be necessary. Cultural resource costs associated with federally permitted projects are the responsibility of the developer.

What if no sites are found during archeological survey?
If the consultant finds no evidence of archeological sites, a report describing the Phase II investigation is submitted for review. If the fieldwork and report are judged by the SHPO Archeologist to be adequate, a clearance letter is issued and the process is complete.

What if something is found during the archeological survey?
If the consultant finds an archeological site (or sites) within the project area, a recommendation will be made for systematic archeological testing (referred to as a Phase III investigation). Testing generally involves controlled excavation of several (usually small) test units with the objective of determining if the site is significant. At the conclusion of Phase III testing, two outcomes are possible. If the site is not considered to be significant and the testing procedures and report are judged by the SHPO Archeologist to be adequate, a clearance letter is issued and the process is complete. If the site is judged to be significant, then the process moves to mitigation (referred to as a Phase IV investigation). At any stage, consideration can be given to altering the proposed project to avoid archeological sites.

Who pays for the Phase III testing?
As was the case with Phase II surveys, Phase III testing for federally funded projects are paid for by the responsible federal agency. In the case of federally permitted projects, Phase III testing costs are the responsibility of the developer.

What makes a site significant?
Not all sites are significant. Significance is determined by the four criteria for listing in the National Register of Historic Places. They are Criterion A: association with an important historical event; Criterion B: association with an important historical person; Criterion C: historically important design/construction; and Criterion D: potential to yield important historical or archeological information. Most archeological sites that are found to be significant fall under Criterion D because, with a few notable exceptions, it is very difficult to associate archeological sites with specific events, persons, or types of design/construction. 

What happens if a site is found to be significant?
If a site is determined to be significant, it is said to be an “eligible" property, meaning that it is eligible for listing in the National Register of Historic Places. If the project cannot be modified to avoid the site, then the damage caused by construction must be mitigated per the requirements of the Section 106 process. This is usually accomplished through major (Phase IV) salvage excavations, which are designed to recover the information contained in the site prior to its destruction. Plans for excavation are coordinated through the Kansas SHPO and the funding/permitting federal agency through development of a Memorandum of Agreement (MOA).

Who pays for the Phase IV salvage excavations?
As was the case with Phase II surveys and Phase III testing projects, federally funded projects are paid for by the responsible federal agency. In the case of federally permitted projects, Phase IV mitigation/salvage excavation costs are the responsibility of the developer.