Section 106 Consultation

What is the Section 106 process?
Federal laws and regulations, starting with the National Historic Preservation Act (NHPA) of 1966, drive modern cultural resource practices. Section 106 of the NHPA is the most important part. The original wording requires only that Federal agencies take cultural resources (including archeological sites) into account when planning ground-disturbing projects. Other laws and regulations have been passed in the years since, producing a detailed set of procedures that have come to be known as the “Section 106 Process.” 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?
The bottom line is: all federally funded or permitted projects must be reviewed for impacts to cultural resources.

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.

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 everything, each has a staff. At the KSHS, this staff is part of the 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 cultural_resources@kshs.org.

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 for the National Register of Historic Places.

How do I submit a project for review?
The Kansas SHPO will accept project submissions either by regular mail or in electronic form. Projects should be submitted to Review & Compliance, Kansas State Historical Society Cultural Resources Division, 6425 SW 6th Avenue, Topeka, KS 66615. If possible, communications towers or collocations should be submitted using the FCC's E-106 system.

Electronic submissions may be sent as e-mail attachments. Be aware that the KSHS servers have an upper limit of 15mb for attachments and our email system will not accept .zip files. Large files, such as multiple quad maps or project plan sheets, should be sent by regular mail. If your project involves standing structures you may submit the review to Kim Gant at kgant@kshs.org. If your project involves ground disturbance or archeology, you may submit your review to Tim Weston at tweston@kshs.org. Please note that all responses are sent via postal mail.

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.

What should be included in a request for review?
Please provide a cover letter clearly indicating the county and city within which the project will take place and a sentence stating that the letter is a "request for consultation regarding the proposed project in accordance with 36 CFR 800." Provide a project name and number (if available), along with the name, address, and telephone number of a contact person. Also indicate the name of the person or entity requesting consultation if different from the contact person, and the federal or state agency for which review is required.

A basic description of the project (housing development, water line, cell tower, etc.) should be provided, along with a map or aerial photo showing its location and extent. A United States Geological Survey (U.S.G.S.) quad map section is ideal, and a legal location (Section, Township, Range) should be included. If your project involves a building or structure, please include a photo of each structure along with a scope of work.

The Kansas SHPO accepts electronic submissions, but all replies are sent via regular mail, so a return mailing address is necessary as well.

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

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 is sent 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.

What is the outcome of a structural review?
After reviewing the photos and scope of work the SHPO 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 Rehabilitation.

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 a guide to field procedures and report standards.

Who does the archeological survey?
Find a list of consultants who have asked for inclusion by the Kansas SHPO. Consultants not listed therein may be chosen as well. 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 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?
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 sent and the process is complete.

What if something is found?
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 sent 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 testing?
As was the case with Phase II surveys, 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?
This is the key question, as not all sites are significant. Significance is determined by the four criteria (A, B, C, and D) for listing in the National Register of Historic Places, all of which have their roots in the evaluation of buildings. 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. Not surprisingly, 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. 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 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.