Consideration of Indirect and Cumulative Effects in the Section 106 ...

Consideration of Indirect and
Cumulative Effects in the
Section 106 Process
Carol Legard
Advisory Council on Historic Preservation

What Does Section 106 Require
Federal Agencies MUST:
• [T]ake into account the effect of [an]
undertaking on any district, site, building,
structure, or object that is included in or
eligible for inclusion in the National Register”
AND
• “[A]fford the Advisory Council on Historic
Preservation…a reasonable opportunity to
comment with regard to such undertaking.”

Section 106 – Adverse Effect
“An adverse effect is found when an
undertaking may alter, directly or
indirectly, any of the characteristics of a
historic property that qualify the property for
inclusion in the National Register in a
manner that would diminish the integrity
of the property’s location, design, setting,
materials, workmanship, feeling, or
association…”
36 CFR 800.5(a)(1)

Section 106 – Adverse Effect (cont.)
“Adverse effects may include
reasonably forseeable effects caused
by the undertaking that may occur later
in time, be farther removed in distance,
or be cumulative.”
36 CFR 800.5(a)(1)

Executive Order 13274
Work Group Baseline Report
• Legal requirements
Relevant laws, regulations, and
Executive Orders
Case law
• Available guidance and training
• State of the practice
Based on literature review and
practitioner interviews
• Lessons learned and opportunities
• Case studies
• Recommendations
http://www.dot.gov/execorder/13274

What Are Indirect Effects
• Effects caused by the action…occurring later in
time or farther removed in distance, but still
reasonably foreseeable
Includes effects of induced growth and changes in land
use patterns or growth
Synonymous with secondary impacts
Proposed Action
Direct
Impacts
Related Actions
Indirect
Impacts

What Are Cumulative Impacts
• Result from incremental impacts of the action when
added to other past, present, and reasonably
foreseeable future actions (regardless
of who undertakes those actions)
Can result from individually minor
but collectively significant actions
Proposed Action
Past Actions
Other Present
Actions
Future Actions
Impacts
Impacts
Impacts
Cumulative
Impact on
Individual
Resource
Impacts

Sources of Interagency Disagreements
• Methodological and analytic issues
Area of potential effects
Level of detail
Information availability
Documentation of significance

Sources of Interagency Disagreements
(cont’d)
• Questions about causality
Cause of land use change, or
response to planned growth
• Disagreements about the
role of transportation
agencies in mitigation
Who should be responsible
How appropriate is use of
transportation funding
Transportation
Action
Land Use
Development
The most contentious
issues often relate to
“induced” land use
changes

Central City-Black Hawk Gaming Area
Access EIS

Gaming Area Access Project Map

Historic Central City, Colorado

Historic Black Hawk, Colorado

Black Hawk Colorado Today

Central City Today

Central City Parkway, Southern Access

State Highway 119

Gaming Area Access – Section 106
• Broadly Drawn Area of Potential Effects
• Consulting Parties: FHWA, CDOT, NPS,
ACHP, SHPO, City of Black Hawk and City of
Central.
• No direct effect on the NHL District, but
• Improved Access contributes incrementally to
increased traffic levels, noise, and other
audible elements in the NHL that are
incompatible with its historic character.

Gaming Area Access - Mitigation
• Mitigation is commensurate with effects
• Measures agreed on through consultation:
Archival documentation of entrance to Black Hawk
showing both historic and present appearance
Interpretive signage
Brochure
• Will be incorporated into a Memorandum of
Agreement signed by all consulting parties.

Kentucky Transpark Project- Phase I

Interstate 65 to US 31 West Connector
Highway Project

Kentucky Transpark Phase II Project

Andrew C. Warden House

Kentucky Interstate 65 to US Highway 31
West Connector Highway
Consulting parties include:
Sierra Club
City of Oakland
National Trust for Historic Preservation
Kentucky Transportation Cabinet (KYTC)
Karst Environmental Education and Protection
Intermodal Transportation Authority (ITA),
State Historic Preservation Officer (SHPO) and
Advisory Council on Historic Preservation

I-65 to USH35 West Connector Road
• Agreed upon mitigation measures will be
included in an MOA:
All identified effects are indirect impacts related to
Phase II development of the Transpark
Two historic homes and one cemetery will be
preserved in place by the developer (ITA)
Archaeological Surveys for all Phase II parcels
prior to development
Further consultation re: treatment for eligible
archaeological properties.

Addressing Cumulative Effects in
NEPA & Section 106 is Hard
• Agencies are reluctant to acknowledge a
project’s contribution to Cumulative Effects
• It can be expensive and time consuming to
accurately measure indirect and cumulative
impacts to historic properties
• Not many good examples to draw on
• Disagreements about who’s responsible for
mitigation

Addressing Cumulative Effects is Not
THAT Hard
• Talk to people & listen to their concerns
• Invite affected stakeholders to be Section 106
consulting parties
• Try to redesign the project to avoid impacts
• Be creative
in identifying mitigation measures and funding
them
• Best results during transportation planning
Not in Project Development

Success is possible when you:
• Identify all POTENTIAL Indirect and Cumulative
Effects
• Collaborate with consulting parties to resolve issues
of concern
• Form partnerships to accomplish mitigation
• Require monitoring to ensure noise and vibration
impacts are avoided
• Coordinate 106 and NEPA review, and
• Document commitments in a Memorandum of
Agreement.