Chapter 2 - Cultural Resources Procedures

It is Caltrans policy that all persons carrying out these procedures, whether Caltrans staff or consultants, must meet the appropriate federal and state professional qualifications standards, as established by the Secretary of the Interior, the State Personnel Board, and Caltrans (see Chapter 1 Section 1-3.4 of this volume). Furthermore, any studies submitted under the Section 106 PA (discussed below) must be prepared by or under the supervision of appropriate Professionally Qualified Staff (PQS) as described in Section 106 PA Attachment 1. Caltrans PQS are responsible for ensuring that all approvals, determinations, and findings for all Section 106 documents meet the requirements of the Section 106 PA. The CCSO Chief is responsible for certifying Caltrans staff, and will also review consultants’ qualifications on request. Questions on certification should be addressed to the Chief, Section 106/PA Coordination Branch (Section 106 Branch) in CCSO.

PQS are certified to work under the Section 106 PA in the course of their duties related to federal undertakings under Section 106 of the National Historic Preservation Act. This certification applies only to responsibilities and activities conducted under the direction of Caltrans District or Headquarters Environmental offices. It does not apply to any other work that may be conducted on behalf of any other office, agency, entity, or individual. This certification applies to Caltrans employees only, and it terminates upon leaving Caltrans employment.

Section 106 of NHPA, as amended, requires federal agencies to take into account the effect of their undertakings on historic properties and to afford the Advisory Council on Historic Preservation (Council) a reasonable opportunity to comment. Federal agencies are responsible for complying with Section 106, although they may authorize others to perform specific tasks. The term “agency” as used in describing the Section 106 process may mean either the federal agency itself or any party acting on its behalf, but the ultimate responsibility for complying with the law remains with the federal agency. For most Caltrans projects, the Federal Highway Administration (FHWA) is the lead federal agency involved. On occasion, other federal agencies are involved or may act as the lead federal agency on a Caltrans project. When FHWA is the lead agency (funding and/or approval authority) other federal agencies may assume the lead on Section 106 only if FHWA has agreed to an alternate process in advance.

The regulations implementing Section 106 are published at 36 CFR §800. Those regulations allow the Council and the federal agency to negotiate a programmatic agreement (Section 106 PA) to govern implementation of a particular program. FHWA has negotiated such an agreement with Council, the State Historic Preservation Officer (SHPO), and Caltrans to implement the Federal-Aid Highway Program in California. Under the provisions of the Section 106 PA, FHWA authorized Caltrans to perform many of the Section 106 steps, yet retained direct involvement for those aspects of Section 106 that are more complex, relate to other FHWA legislative responsibilities such as 4(f), and that involve financial decisions. It is anticipated implementation of the Section 106 PA will result in timesavings in project delivery. The Section 106 PA specifically requires all Section 106 compliance work to be performed by or under the supervision of Caltrans PQS. A copy of the Section 106 PA is attached as Exhibit 1.1. Exhibit 2.1 contains a Section 106 PA flowchart that may be useful for working with the Section 106 PA. Exhibit 2.2 contains a concordance between the Section 106 PA and the regulations at 36 CFR 800.

The following guidance on Section 106 compliance incorporates changes in the regulatory process prescribed by the Section 106 PA.

Where the undertaking occurs on or affects tribal lands, the Section 106 PA does not apply and FHWA shall follow the procedures at 36 CFR §800. On tribal lands where the tribe has assumed the Section 106 responsibilities of the SHPO, FHWA consults with the Tribal Historic Preservation Officer (THPO). In the absence of a THPO, FHWA consults with the tribal representative and SHPO. Chapter 3 provides details on THPO involvement and consultation with Indian tribes.

For projects involving seismic retrofits to bridges, Caltrans, FHWA, SHPO, and Council entered into a programmatic agreement in 1995 that streamlined much of the Section 106 compliance work. That agreement is still in effect, even though it was under a previous version of the regulations at 36 CFR §800. Chapter 7 contains guidance on how to comply with Section 106 for seismic retrofit bridge projects. Note that a project must involve work only on the bridge for it to fall under the Seismic Retrofit Programmatic Agreement.

Under the Section 106 PA, the Section 106 process, briefly, is as follows:

The Project Development Team (PDT), defined in the Project Development Procedures Manual, identifies any federal involvement on a project and determines the existence of an undertaking subject to Section 106.

Undertaking, as defined by the 1992 amendments to NHPA, means any project, program, or activity with federal funding or under the direct or indirect jurisdiction of a federal agency, including federal license, permit, or approval, or administered pursuant to federal agency delegation or approval. Not all undertakings are subject to Section 106.

Those undertakings that may result in changes in the character or use of historic properties, regardless of whether any such properties are located in the project’s Area of Potential Effects, are subject to Section 106. Most Caltrans projects do have federal involvement and are thus subject to Section 106. The federal action defines the undertaking, not the anticipated presence or absence of historic properties.

Next, Caltrans PQS determine and document the project’s Area of Potential Effects (APE), the area within which the undertaking could cause changes in the character or use of historic properties, if any were present.

Qualified professional staff or consultants begin cultural resources studies to identify and evaluate cultural resources within the APE. They look for the findings of any previous studies, and then conduct research, consultation, and surveys as needed to identify any resources that require consideration. Caltrans applies the National Register criteria to any properties requiring evaluation and requests SHPO’s concurrence that properties are eligible or not eligible for inclusion in the National Register, with concurrent submittal to FHWA.

If no historic properties are identified within the APE, either because:

• There are no properties present which require evaluation, or
• The properties have been evaluated and determined not eligible and SHPO concurred,

Caltrans makes a finding that no historic properties will be affected and concurrently notifies SHPO and FHWA (See Section 2-5.2).

When historic properties are present and there is a potential for effect, Caltrans, in consultation with SHPO, FHWA, and consulting parties, applies the Criteria of Adverse Effect to determine whether its proposed undertaking could affect those properties. If an effect is found, Caltrans, in consultation with SHPO and FHWA, determines whether the effect should be considered adverse.

Undertakings, unless screened and determined to be exempt from further review (see Section 2-3.2) will result in a determination of No Historic Properties Affected, No Adverse Effect, No Adverse Effect with Standard Conditions (all of which would conclude Section 106), or a determination of Adverse Effect. To conclude Section 106 compliance on undertakings having an Adverse Effect, FHWA, and SHPO will usually enter into a Memorandum of Agreement (MOA) that specifies how the adverse effect will be taken into account. Caltrans is routinely a concurring party to the MOA. Other parties may also be involved at FHWA’s discretion.

The PDT, in consultation with FHWA, determines if there will be federal involvement on a project, which will typically make it an undertaking subject to Section 106. In some cases, the decision will have been made earlier as part of developing the State Transportation Improvement Plan (STIP). The PDT makes a final decision on federal involvement as early as possible in the project development process.

An action by a federal agency, such as FHWA or the Federal Transit Administration (FTA), triggers Section 106 on Caltrans projects. Most commonly, the action would be FHWA funding. On occasion, more than one agency will be involved, and a lead agency will then be identified. When FHWA funding or approval authority is involved, other federal agencies may assume the lead on Section 106 only if FHWA has agreed to an alternate process in advance.

On projects involving a permit from the U.S. Coast Guard and a historic bridge, early coordination is essential. Such projects may require preparation of an Environmental Impact Statement (EIS), regardless of other environmental documentation needs, based on a 1985 agreement between FHWA and the U.S. Coast Guard.

Federal involvement will be found in the following cases:

• Projects modifying access to an interstate highway.
• Any project where federal aid will be used for engineering, construction, or right of way.
• Any project for which federal approvals, permits, or licenses may be required.
• Any project that relinquishes or disposes of property on right of way financed with federal funds (District Right of Way should ascertain if there is a federal interest).

FHWA or other federal agencies may also be involved in a project implemented in response to an officially declared disaster.

Federal agencies bear the responsibility for compliance with Section 106 for their undertakings, although they may authorize others to perform a portion of the actual work. Caltrans identifies, evaluates, and treats historic properties and prepares most required documents on behalf of FHWA. Caltrans, in turn, may contract some work to private consultants.

The DEA in Headquarters has specialists in Section 106 processes, Native American coordination, archaeology, architectural history, history, and mitigation measures. They are available to answer questions and to help Districts complete the requirements of the Section 106 PA. Districts are to rely upon these specialists as a first-line resource in answering project-specific questions and in developing compliance strategies for unusual or complex Section 106 compliance situations. If necessary, DEA specialists may consult with FHWA or SHPO, especially for difficult or possibly precedent-setting situations.

Federal publications provide valuable assistance in working with the Section 106 process. Many are available on-line through the Advisory Council on Historic Preservation and the National Park Service Links to the Past, and include:

• National Register Evaluation Criteria
• Archeology and Historic Preservation: Secretary of the Interior's Standards and Guidelines (National Park Service, September 29, 1983)
• Section 106 Regulations Text and Section 106 Summary
• Section 106 Flow Chart and Section 106 Explanatory Material
• Section-by-Section Questions and Answers
• Protecting Historic Properties: A Citizen's Guide to Section 106 Review
• Indian Sacred Sites and Section 106 (relationship Between E.O. 13007 and Section 106)
• Consultation on Recovery of Significant Information from Archeological Sites
• Section 106 Consultation Involving National Historic Landmarks
• Consulting with Indian Tribes in the Section 106 Review Process
• Federal Alternate Procedures for Section 106

Older Section 106 guidance that has some applicability, but is not available on-line, includes:

• Preparing Agreement Documents: How to Write Determinations of No Adverse Effect, Memoranda of Agreement, and Programmatic Agreements Under 36 CFR Part 800 (Advisory Council on Historic Preservation, September 1989)
• Public Participation in Section 106 Review: A Guide for Agency Officials (Advisory Council on Historic Preservation, February 1989)
• Identification of Historic Properties: A Decisionmaking Guide for Managers (Advisory Council on Historic Preservation, September 1988)

FHWA guidance on historic preservation issues includes:

• Section 4(f) Policy Paper (revised March 1, 2005)
• Guidance for Preparing and Processing Environmental and Section 4(f) Documents
• Section 4(f) – 23 CFR 771.135 as amended
• Technical Advisory 6640.8A.

The Project Development Team formally initiates environmental studies, including cultural resources studies, by submitting plans showing proposed project alternatives with best estimates of Right of Way requirements. The term “cultural resources studies” (formerly called historical studies) describes all research, consultation, and survey work for the full range of cultural resources.

Preliminary environmental and cultural resources studies should be started early, at the Project Initiation Document (PID) stage. Early studies involve such activities as walkovers and reconnaissance (windshield) surveys, supplemented by basic information on previously recorded cultural resources and archaeological sensitivity of the project area. Obtaining this information early in the process allows environmental consequences to be included in the factors governing identification of feasible alternatives. Early surveys can reduce project development time spent on alternatives that would obviously have unacceptable environmental consequences. In particular, early identification of consulting parties is crucial to meeting project schedules.

If information available at the PID stage indicates that historic properties could be involved, every effort should be made to develop realistic project schedules. Scheduling decisions should acknowledge the time required to complete the Section 106 process.

Compliance time can be reduced by conducting early studies to help avoid alternatives that would affect excessive numbers of properties, by scheduling cultural resources studies as early as possible in the environmental process, by communicating closely with the PDT, and by careful delineation of APEs (neither too large nor too small) for the purpose of conducting environmental and cultural resources studies that are both efficient and in compliance with applicable laws. Exhibit 2.3 provides estimates of the range of time required for certain cultural resources studies while Exhibit 2.4 suggests their sequential order.

Coordination between the District Environmental Branch Chief (DEBC) and the appropriate cultural resources staff in the District Environmental Branch, the Caltrans Project Manager, and FHWA Transportation Engineer or other federal representative is crucial throughout the process.

Informal initial strategy consultation can be useful in unusual, controversial, or complex compliance situations. These discussions or meetings may be between District and CCSO cultural resources specialists and managers or between District staff and FHWA and should be held before submitting formal documentation. If issues arise which cannot be resolved, the PDT can request the CCSO Section 106 Branch Chief to initiate a strategy meeting with SHPO staff. On rare occasions, the Council can participate, usually by phone.

Strategy consultation may be crucial under the following circumstances:

• When a project may involve particular areas of concern to Native Americans where internal negotiations have not resolved the disagreement.
• When there is disagreement among agencies over significance, effect, or treatment of historic properties.
• When a project involves substantial local controversy.

It also may be appropriate to discuss strategy with other governmental entities, particularly land-managing agencies or tribal governments that have an interest in historic properties that Caltrans projects may affect.

Caltrans should make every effort to solve issues internally or in consultation with FHWA without contacting SHPO, as SHPO staffing levels do not allow for frequent individual discussion of historic property issues. To reduce the volume of routine calls to SHPO, District staff is to contact the CCSO Section 106 Branch Chief for advice on policy, procedures, eligibility, and effect issues or project status.

The Section 106 Branch Chief will initiate SHPO consultation when such consultation is warranted. In general, contacts should be limited to situations with complex or unusual issues, projects with high public interest, and circumstances in which appropriate application of the regulations is uncertain. District staff may contact SHPO directly in critical situations, such as a late discovery or an emergency when immediate response is essential. FHWA should be notified in advance of any action for which they are responsible under Section 106.

Effective March 10, 2005, the Advisory Council on Historic Preservation issued its “Section 106 Exemption Regarding Effects to the Interstate Highway System.” (Federal Register Vol. 70, No. 46, pp. 11028-11931). The exemption “concerns solely the effects of Federal undertakings on the Interstate Highway System.”

• The exemption releases all federal agencies from the Section 106 requirements of having to take into account the effects of their undertakings on the Interstate System, except for a limited number of individual elements associated with the system.
• By June 30, 2006, FHWA Headquarters must designate those individual elements that still may be subject to Section 106 review. Designation will be made following consultation with: state DOTs, FHWA Division, SHPOs, ACHP, and the public. Questions or disagreements about National Register eligibility will be resolved in consultation with the Keeper of the National Register.
• The individual elements which may be excluded from the Exemption, and therefore considered under Section 106 are as follows:

Other caveats and requirements:

• Federal agencies must take into account effects of undertakings on other historic properties that are not components of the Interstate System, such as adjacent historic sites or archaeological sites within the right of way.
• FHWA will post on its Historic Preservation website the individual elements that are to be excluded.
• FHWA will recognize, interpret and commemorate the public history of the Interstate System, including publishing a popular publication and/or development of a website to provide information and educational material about the Interstate Highway Stem and its role in American History.

Contact the CCSO Section 106 Branch Chief for any questions concerning the applicability of the Interstate Highway Exemption.

This exemption is for federal undertakings only and does not exempt Caltrans from compliance with CEQA, PRC §5024 or other state laws and regulations. For instance, a bridge on the Interstate that is exempted from review for Section 106 undertakings would still have to be evaluated for PRC §5024 or CEQA compliance and might, for the purposes of those state laws and regulations, be found eligible for inclusion in the National Register or as a historic resource under CEQA.

The Section 106 procedures explained below follow the order laid out in 36 CFR §800, with changes prescribed by the Section 106 PA. The steps are essentially linear, although in practice they may overlap or be compressed. It is essential to be aware of where the project is in the process.

The Section 106 process may conclude at various places in the process, when resolution is reached at any one of the following steps:

• Caltrans, on behalf of FHWA, determines that the activity is not an undertaking subject to Section 106.
• Caltrans, on behalf of FHWA, determines the undertaking meets the criteria for Screened Undertakings in accordance with Section 106 PA Attachment 2 and Stipulation VII of the Section 106 PA.
• Caltrans, on behalf of FHWA, finds that the project will result in No Historic Properties Affected, and notifies FHWA and SHPO, when
  1. No properties of any kind are present,
  2. None of the properties are eligible for the National Register and SHPO has concurred, or
  3. Historic properties are present but the undertaking will have no effect on them.

• Caltrans, FHWA, and SHPO agree that the project will have No Adverse Effect on historic properties.
• On projects with an Adverse effect, Caltrans, FHWA, and SHPO, and including Council in special circumstances, sign a Memorandum of Agreement on how to take effects into account.
• On the rare occasions when no agreement is reached, FHWA takes Council’s written comments into account, decides whether and how to proceed with its proposed activity, and notifies Council of its decision.

Certain undertakings by their very nature have little potential to affect historic properties. FHWA, SHPO, and Caltrans recognize this and account for it in the Section 106 PA under Stipulation VII and Attachment 2, in an effort to streamline cultural resource compliance. The attachment lists 29 classes of undertaking that must be screened before being exempted from Section 106 review. As with all other actions under the Section 106 PA, a Caltrans PQS must conduct the screening process. Only the specific actions on the list qualify for screening, but an undertaking comprised of several actions on the list can be screened.

Screening may involve reviewing relevant documents, such as maps, photographs, previous cultural studies, and project plans. It may involve a field review of the project location or consultation with knowledgeable individuals. Personal knowledge of the project location may be important and should be included where relevant. Based on the outcome of the screening process, the Caltrans PQS may determine that individual undertakings are exempt from further review because there is no potential to affect historic properties. The CE-Section 106 Cultural Resources Checklist or a memo for the project files constitutes the documentation necessary to complete the Section 106 process for screened undertakings determined exempt from further review. The Caltrans PQS who screened the undertaking prepares a memo that includes a description of the undertaking, the screening process, and the results of screening that led to the conclusion that the undertaking qualified as exempt from further review. Exhibit 2.5 contains a sample memo to file. See Section 106 PA Attachment 2 and Chapter 4, Section 4-2.1 for further guidance.

The Section 106 process begins when the PDT identifies that an undertaking is subject to Section 106 compliance. See Section 2-2.2 for the definition of an undertaking. Once it has been determined that an undertaking exists, Caltrans initiates the steps to identify any historic properties that might be affected by the project.

Identifying historic properties involves six steps:

1. Determine the scope of identification efforts [36 CFR §800.4(a)].
2. Establish the APE [36 CFR §800.4(a)(1)].
3. Consult with Indian tribes, other Native Americans, local governments, local groups (e.g. historical societies, landmark commissions, historic preservation groups), and other interested parties.
4. Identify properties (which includes conducting cultural resources surveys) [36 CFR §800.4(b)].
5. Evaluate the significance of properties in the APE using the National Register criteria [36 CFR §800.4(c)].
6. Report the results of the identification and evaluation efforts [36 CFR §800.4(d)].

The first step in determining the scope of identification efforts and a critical step in conducting cultural resources studies is to establish the project’s APE.

As defined in 36 CFR §800.16(d), an APE is “the geographical area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist. The area of potential effects is influenced by the scale and nature of an undertaking and may be different for different kinds of effects caused by the undertaking.” Setting an APE is a prospective activity and the known or suspected presence or absence of actual historic properties is irrelevant at this stage.

The APE should define the boundaries of the area within which a proposed project might affect properties. It should be just large enough to include in their entirety all properties being studied (with special consideration for long linear features) that could under any reasonable circumstance be affected by the proposed undertaking. Section 106 PA Attachment 3 provides specific details on aspects to consider when delineating the APE and setting direct and indirect APEs.

The minimum APE for considering direct effects is generally the required right of way, plus areas subject to ground-disturbing activities, such as utility relocation, equipment staging areas, and designated storage, disposal, or borrow sites. If a site is identified, the APE is drawn to encompass the known or presumed boundaries of archaeological properties. If the proposed project has potential for indirect effects to archaeological sites, the APE may need to be expanded, and consultation with SHPO early in the scoping process should be considered. Consult the CCSO Section 106 Branch Chief if a question arises.

It is permissible to distinguish Direct APE and Indirect APE on project maps, but users should note that they are Caltrans terms that have no regulatory basis. The project’s vertical and horizontal extent should always be considered in establishing both the Direct and Indirect APE.

Buildings and structures can be affected by land use changes and by visual, noise, or atmospheric intrusions beyond the right of way. To consider these indirect effects, the APE for the built environment in an urban or suburban environment often includes one row of buildings beyond the proposed right of way, if warranted. The assessor’s parcel may be used to define the boundaries of a property for inclusion within the APE. When warranted by the nature of the project or other factors such as topography or property size, the APE can be substantially larger or smaller. Judgment must be exercised where assessor’s parcels are very large, as is often the case with rural properties. See Section 4-3 for additional guidance on setting the APE.

The Section 106 PA makes Caltrans PQS and Project Managers jointly responsible for setting the APE. They will sign any maps or plans that define or redefine an APE. For Local Assistance projects, the District Local Assistance Engineer will sign as the project manager. When the guidance in Section 106 PA Attachment 3 is followed, specific consultation with SHPO will not typically be necessary. If consultation on the APE is deemed necessary, it should be initiated through the CCSO Section 106 Branch Chief. While the Section 106 PA authorizes Caltrans to define the APE, SHPO and FHWA may always comment on the adequacy of that delineation.

Cultural resources specialists conduct studies within the APE to identify the presence or absence of historic properties. When studies must begin prior to establishing the APE, District Environmental Branch PQS, in consultation with the PDT, may designate a reasonable Study Area for use in conducting cultural resources studies until an APE can be delineated. The Study Area should encompass all land that might possibly be included in the final APE. Project reports would then include both the Final APE and the Study Area Map as appropriate.

If studies reveal a resource such as a large potential historic district or long linear feature that extends beyond the designated APE boundaries, the entire resource must be considered as a whole, even if the APE may or may not eventually be formally revised to encompass the entire resource. See Section 106 PA Attachment 3 for further guidance on the relationship of APE boundaries to larger historic properties.

The final APE map must be formally designated by the time the Historic Property Survey Report (HPSR) is complete because the final APE map appears as an exhibit in the HPSR that documents Section 106 compliance.

The next steps in determining the scope of identification efforts include seeking information from consulting parties and others who might have knowledge of resources in the project area (preliminary research), and gathering information from Indian tribes regarding resources that might have cultural or religious significance to the tribe and thus might be eligible for the National Register. Section 106 regulations requires federal agencies to employ a “reasonable and good faith effort” to identify historic properties. In deciding what constitutes a reasonable and good faith effort, Caltrans PQS should consider the following factors for any particular undertaking:

• Past planning, research, and studies.
• Magnitude and nature of the undertaking.
• Degree of federal involvement.
• Nature and extent of potential effects on properties.
• Likely nature and location of properties within the APE.
• Applicable standards and guidelines.
• Confidentiality concerns.

Caltrans PQS first look for previously evaluated properties within the APE. Chapter 4 Section 4-4 discusses preliminary research in more detail. At a minimum, however, sources that are to be consulted on all projects include:

• National Register of Historic Places.
• California Register of Historical Resources.
• California Historical Landmarks.
• Points of Historical Interest.
• State and local inventories of historical resources.
• Caltrans Historic Highway Bridge Inventory, if applicable.
• The appropriate regional Information Center of the California Historical Resources Information System (CHRIS).
• Sacred Lands Inventory File, Native American Heritage Commission.

The regulations specifically call for FHWA to consult with Indian tribes about properties that may have religious or cultural significance to them. The Section 106 PA authorizes Caltrans to carry out this consultation on FHWA’s behalf; however, FHWA will honor the request of any Indian tribe for direct government-to-government consultation. Chapter 3 discusses this process and Caltrans role in government-to-government consultation. Additional contacts for information about possible resources in the project area may include local historical societies, museums, and members of the public.

Although 36 CFR §800.4 calls for agencies to request information from SHPO, the California SHPO does not have staff or facilities to provide research services. By reviewing appropriate databases, consulting historical resource listings, and requesting records searches from Information Centers and other sources, as described in Chapter 4 and documenting the results accordingly, Caltrans is deemed to have complied with this requirement.

Caltrans, FHWA, and SHPO recognize that certain cultural resources categorically appear, under ordinary circumstances, to possess little or no potential for significance. Since the federal regulations require a “reasonable and good faith effort” to identify historic properties, Caltrans, SHPO, and FHWA have agreed to concentrate efforts on properties that could be significant. Section 106 PA Attachment 4 contains a list of certain properties that are exempt from evaluation; however, it is important that Caltrans PQS determine which properties meet the requirements of Attachment 4. Further guidance on determining if resources are exempt and documenting that determination is offered in Chapter 4.

Once the scope of identification efforts has been defined, and based on information that has already been gathered about cultural resources within the APE, it should be clear whether survey work is needed.

Phased identification may be necessary when the project has a number of alternatives, involves large land areas, or includes areas to which access is restricted. The latter often occurs when archaeological sites may be affected. When considering a phased approach, FHWA must approve it and an MOA is required. Also, the process needs to allow for other consulting parties and the public to adequately express their views. See Chapter 4 for more discussion.

In order to identify resources not previously known, cultural resources specialists undertake research to develop the historic context necessary to recognize the types of resources that may be present and the locations in which they are likely to occur as well as possible areas of significance. The results of the study are presented in a historical overview of the technical reports that the cultural resources specialists prepare. The context statement presented in the historical overview leads directly to site-specific discussions of cultural resources in the APE.

Work on the historic context usually extends through the research and survey stage and is completed prior to formal evaluation of resources. The context should be developed to the extent needed to understand the resources being studied. It should be a focused and practical synthesis, providing the information needed to evaluate and compare properties within that context. Chapter 4 contains more information on historic context.

Identification of historic properties must be made in consultation with Native Americans. The Section 106 PA authorizes Caltrans to conduct consultation with Indian tribes, however FHWA retains ultimate responsibility for direct government-to-government consultation. Chapter 3 contains guidance on consultation procedures.

At the Project Study Report (PSR) stage, a walkover or a reconnaissance (windshield) survey, along with preliminary research, can provide information on the likelihood of historic properties within a given corridor for comparison among project alternatives. This preliminary work should be pursued to the extent necessary to reveal the need for specific cultural resources surveys within an APE or Project Area. See Chapter 4 Section 4-5.

In practice, an archaeological survey is always conducted unless it can be shown that natural or modern processes have destroyed any potential resources, or unless the APE previously has been surveyed to appropriate standards. See Chapters 4 and 5 for more information on when and how to conduct an archaeological survey and on how to assess the potential for buried resources.

All unevaluated buildings or structures within the APE, regardless of date of construction, will be considered. Section 106 PA Attachment 4 allows Caltrans PQS to exempt certain specific resources from evaluation. Chapters 4 and 7 contain more information on when and how to conduct an appropriate surveys and how to apply Attachment 4. All cultural resources within the APE that merit recordation and, when applicable, evaluation, will be examined, recorded, and evaluated by appropriate Caltrans PQS or qualified consultants.

Permits may be required for access to certain public lands. When it is necessary to enter private property, Caltrans must obtain permission from property owners. District Right of Way (R/W) staff should handle all access requirements, but R/W may delegate to cultural resources staff notifying residents when the actual field survey will take place. A single District cultural resources staff member should be designated to coordinate with R/W to get access permission for all advance studies.

Safety of employees and good relationships with the public are both prime considerations while conducting surveys or other fieldwork. All surveys and other fieldwork shall be conducted in keeping with the Code of Safe Field Practices. See Chapter 4 Section 4-6.3, Chapter 5 Section 5-3.6, and Chapter 6 Section 6-9.2 for specific information regarding survey access and field safety. Exhibit 2.6 contains relevant excerpts from the Caltrans survey manual.

Next, Caltrans PQS identify cultural resources within the APE that require evaluation. All buildings and structures within the APE and all archaeological sites that cannot be avoided must be identified, and as applicable, recorded and evaluated.

Archaeologists and historical archaeologists conduct archaeological research, consult with Indian tribes and other Native Americans regarding prehistoric sites, and if necessary, conduct excavations, to evaluate archaeological resources. Architectural historians consult with local historical societies and groups, and conduct historical research and fieldwork to evaluate built-environment resources (e.g., buildings, structures, districts, objects, and complexes).

When resources have the potential for multiple property types (such as a mining complex with buildings, structures, and archaeological sites), professional cultural resource specialists from more than one discipline work together as a team to ensure that all pertinent resource values are adequately considered.

Caltrans PQS and qualified consultants conducting evaluations apply National Register eligibility criteria (36 CFR §60.4) to each resource. Under the Section 106 PA, Caltrans makes eligibility findings on behalf of FHWA. Caltrans-prepared technical reports should state that Caltrans has determined that properties are eligible, or not eligible, for inclusion in the National Register. Consultants, however, only propose eligibility findings so their documents should phrase the finding as “properties appear eligible” or “do not appear eligible” for inclusion in the National Register. Caltrans PQS will then change the wording in the cover letter to “properties are eligible” or “are not eligible” when Caltrans sends its official determination to SHPO and FHWA for concurrence.

Under the Section 106 PA, Caltrans must consult with SHPO and concurrently notify FHWA on the results of its National Register eligibility determinations. This is typically accomplished in the HPSR.

The HPSR may contain a number of other findings that document compliance with Section 106 requirements – findings that do not require separate or additional SHPO or FHWA concurrence under the Section 106 PA:

• Establishment of the APE.
• Scope of identification efforts: results of seeking and gathering information on historic properties, including consultation with Indian tribes, Native Americans, local governments and groups, and other interested parties.
• No Historic Properties Affected: there are no historic properties (National Register listed or eligible) in the APE (provided SHPO has concurred on eligibility).
• No Historic Properties Affected: there are historic properties in the APE but there will be no effects to them.

The SHPO or FHWA may still comment on Caltrans identification efforts and APE delineation, but will rarely do so when all guidance has been properly followed. If there are questions on appropriate level of effort or items not covered in the Environmental Handbook, consult the CCSO Section 106 Branch Chief. Caltrans must concurrently notify SHPO and FHWA of a No Historic Properties Affected finding, thus such findings should be included in the HPSR whenever possible.

The Section 106 PA allows Caltrans to submit all National Register eligibility studies directly to SHPO with concurrent submittal to

FHWA. Caltrans must also notify Indian tribes who have been involved in the consultation process, and local governments in whose jurisdiction the project is located, and provide documentation to the tribe and local government, unless the tribe or local government has indicated it does not wish to receive such documentation. If Caltrans and SHPO agree on the determination of eligibility for a property, their joint finding constitutes a “Consensus Determination of Eligibility: for purposes of Section 106 compliance.

If Caltrans and SHPO disagree on eligibility, then Caltrans must promptly notify FHWA and the three parties will consult to resolve the disagreement within a mutually acceptable time frame. In the rare cases that an agreement is not reached, FHWA must submit the documentation to the Keeper of the National Register, requesting a “Formal Determination of Eligibility.” If an Indian tribe objects and consultation does not resolve the objection, the tribe may request Council to request FHWA to a determination of eligibility from the Keeper. The Keeper’s determination is final.

Caltrans transmits copies of its HPSR with National Register eligibility determinations to SHPO for review and concurrently provides copies to FHWA. According to the Section 106 PA, SHPO has 30 calendar days to respond from date of receipt at SHPO (date logged in). SHPO’s response may be agreement with the findings in the HPSR, but it may also be a request for additional information, in which case the 30-day time limit is no longer applicable to supplemental submittals (Section 2-4.7 contains further information on the review process). It is therefore advisable for the district to wait for the SHPO letter before proceeding with the next steps under Section 106. FHWA has determined that, because of NEPA requirements, the SHPO response letter must be included in a project’s draft environmental document.

Once all historic properties within the APE have been identified, Caltrans must determine whether the undertaking will have an effect on those properties [36 CFR §800.4(d)]. A finding of No Historic Properties Affected is appropriate when the undertaking will have no effect on historic properties, as defined in 36 CFR §800.16(i).

The No Historic Properties Affected finding applies when either

• The APE does not contain any historic properties at all, or
• Historic properties are present but the undertaking will not alter the characteristics that may qualify them for the National Register.

If this finding is appropriate, Section 106 compliance is concluded.

It is important to consider the following factors determining whether there will be an effect on historic properties within the APE:

• An effect does not have to be negative to be an effect.
• To have an effect, the undertaking must have the potential to alter the characteristics that qualify the property for inclusion in the National Register.
• The potential alteration does not have to be certain.
• Effects do not need to be direct and physical.
• Consideration should be given to changes that may occur in the reasonably foreseeable future.

If Caltrans finds there are historic properties that may be affected by the undertaking, Caltrans shall apply the Criteria of Adverse Effect. If objections have been raised about Caltrans’ No Historic Properties Affected finding and they have not been resolved, Caltrans and FHWA should apply the Criteria of Adverse Effect and work towards resolving the objection.

The regulations at 36 CFR §800 require FHWA to determine if the undertaking will have an effect on historic properties. If there will be an effect, the agency will make one of the following findings:

• No Adverse Effect (NAE),
• No Adverse Effect with Standard Conditions (NAE-SC), or
• Adverse Effect (AE).

Section 2-5.3 contains guidance on the process for documenting these findings and consulting with SHPO.

To assess effects, Caltrans PQS apply the Criteria of Adverse Effect [36 CFR §800.5(a)(1) and (2)] to determine whether the proposed activity will adversely affect properties listed in or determined eligible for listing in the National Register.

The finding of No Adverse Effect applies when there will be an effect, but the effect will not alter any of the characteristics that qualify the historic property for the National Register in a manner that would diminish any of the property’s seven aspects of integrity. A finding of No Adverse Effect with Standard Conditions is appropriate when certain specific conditions are imposed on the undertaking (see below).

According to the criteria, an adverse effect occurs when the integrity of the historic property may be diminished by the undertaking through alteration of the characteristics that qualify the property for the National Register. Such alteration can be caused directly as a result of the undertaking or as an indirect consequence.

Adverse effects include, but are not limited to:

• Physical destruction, damage, or alteration, including moving the property from its historic location.
• Isolation from or alteration of the setting.
• Introduction of intrusive elements.
• Neglect leading to deterioration or destruction.
• Transfer, sale, or lease from federal ownership.

A finding of No Adverse Effect is appropriate when:

• None of the undertaking’s anticipated effects meet the Criteria of Adverse Effect.
• Caltrans and FHWA, after consultation, modify the undertaking or agree to conditions that will avoid adverse effects.

There are two standard conditions that will avoid adverse effects under the Section 106 PA:

1. Rehabilitation according to Secretary of the Interior’s Standards for Treatment of Historic Properties; and
2. Protection by designation of an Environmentally Sensitive Area (ESA).

When either of the standard conditions is imposed on an undertaking, the formal finding to conclude Section 106 would be “No Adverse Effect with Standard Conditions.” Under the Section 106 PA, neither SHPO nor FHWA need to review this finding, but they must be notified of the finding.

The first standard condition is used primarily for buildings and structures. Where adverse effects are avoided through rehabilitation, the plans must be reviewed by, or under the direct supervision of, a Principal Architectural Historian with the requisite experience. See the guidance in Chapter 1 Section 1-3.3 – Architectural History and History. The Historical Architectural Specialty Branch at Headquarters is available for assistance and guidance when considering this approach.

The second standard condition is used primarily for archaeological sites. When employing an ESA to avoid adverse effects, there are two major factors to consider. First, when using an ESA to protect a site from adverse effects, it is permissible to assume that an archaeological site is eligible for the National Register without conducting full evaluation studies, that is, no excavation is needed. Where this approach is used, Caltrans states that a property is considered eligible “for the purposes of the undertaking.” This avoids any unintended implications that would result in a property being listed in the California Register. Second, an ESA Action Plan must be prepared. Section 2-4.3, Section 106 PA Attachment 5, Chapter 5, and Exhibit 2.7 contain additional details on implementing ESAs and what should be included in an ESA Action Plan.

Caltrans may also propose a NAE finding that does not employ either of the two above standard conditions. In this situation, Caltrans submits the proposed finding to FHWA for review, and FHWA then forwards it to SHPO. If there are any disagreements on the finding, the parties must consult to reach agreement.

An undertaking is considered to have an adverse effect when any aspect of an undertaking meets one or more of the Criteria of Adverse Effect. Caltrans also may make a finding of Adverse Effect after a consulting party has indicated its disagreement with a NAE finding, or when SHPO objects to a finding of No Adverse Effect that employs other than standard conditions.

Under the Section 106 PA, Caltrans proposes to FHWA a finding of Adverse Effect and FHWA then consults with SHPO. This is usually accomplished through a Finding of Effect document. Once Caltrans, FHWA, SHPO, and consulting parties reach an agreement on the Adverse Effect finding, they move to the next step, resolving adverse effects. The purpose of this step is to continue consulting to reach agreement on measures that will enable the undertaking to proceed. The goal is to find measures that avoid or reduce harm to historic properties. Note that an adverse effect finding may trigger FHWA Section 4(f) policy that requires FHWA legal sufficiency review.

When there is an adverse effect, FHWA, or Caltrans under FHWA direction, consults with SHPO on ways to avoid or reduce the adverse effect. FHWA must invite Indian Tribes to be consulting parties under certain circumstances. Chapter 3 contains more guidance for involving Indian tribes in the resolution of adverse effects. Specifically, the regulations provide that the federal agency shall consult with Indian tribes “to develop and evaluate alternatives or modification to the undertaking that could avoid, minimize, or mitigate adverse effects on historic properties” [36 CFR §800.6(a)]. FHWA also must invite local governments with jurisdiction over the area in which the effects of an undertaking may occur to be consulting parties [36 CFR §800.2(c)(3)].

FHWA, in consultation with SHPO may invite other groups and individuals to join the consultation if they have a demonstrated interest in the undertaking, and have submitted a written request to FHWA to join the consultation. Demonstrated interest may include legal or economic relation to the undertaking or affected historic properties or concern with the undertaking’s effects.

In the rare situation that FHWA and SHPO are unable to resolve the adverse effects, they must invite Council to participate in the process.

The consulting parties must make a good-faith effort to find acceptable ways to avoid or reduce the effects on historic properties. FHWA, or Caltrans under FHWA direction, gathers needed documentation, informs the public about the undertaking through its public involvement procedures, and works with the consulting parties to find a solution. The parties may agree to accept adverse effects when no reasonable alternatives are available and when the undertaking is in the best public interest despite the adverse effects on historic properties.

When FHWA and SHPO have reached an agreement for avoiding, reducing, mitigating, or accepting adverse effects on historic properties, they sign a Memorandum of Agreement (MOA). Caltrans shall be a concurring party to, or a signatory of, the MOA whenever it is required to perform any action as part of the agreement. See Exhibit 2.10 for additional guidance on MOAs.

The MOA serves three important functions in the Section 106 process:

• It completes the process for a project on which an adverse effect will occur.
• It specifies the measures that will be implemented to mitigate, avoid, or reduce adverse effects on historic properties.
• It establishes responsibility for implementing each of the measures.

In situations where the adverse effect is to an archaeological property that is significant exclusively under National Register Criterion D, Caltrans may follow the Data Recovery Plan (DRP) proposal in Section 106 PA Attachment 6 in order to resolve adverse effects. FHWA and Caltrans both must enter into an MOA with SHPO to ensure the provisions of the DRP will be carried out as specified.

For most Caltrans projects, the MOA will be a two-party agreement between FHWA and SHPO, with Caltrans as a concurring party. Note that an Indian tribe, local government, or other interested individuals may be invited to be concurring parties to the MOA, if FHWA so decides. Unless they are assigned specific duties under the MOA, their failure to sign the MOA does not invalidate it and does not stop the MOA from being implemented.

In rare circumstances the Council may be involved in the resolution of Adverse Effects and would also sign the MOA. This would happen when FHWA, SHPO, and Caltrans are unable to reach agreement among them and Council has been asked to participate. Whether or not the Council is involved, FHWA must provide a copy of the MOA to the Council for inclusion in their files for documentation of the agency’s implementation of Section 106.

If the Section 106 process has resulted in a signed MOA, FHWA proceeds with its project according to the terms of the MOA. Caltrans and any other parties with responsibilities under the MOA usually carry out the mitigation measures after the final environmental document is approved but before or during construction (See Exhibit 2.3 for additional information on Caltrans WBS codes and funding sources). Within 90 days after completing all the required mitigation measures under the terms of an MOA, Caltrans reports to those who signed the MOA, usually FHWA and SHPO, on actions completed.

In the rare instances when the MOA signatories and/or consulting parties fail to agree on terms for an MOA, the consultation may be terminated. In the event of termination, FHWA shall request Council comments on the undertaking. The head of FHWA must take into account Council’s comments, after which FHWA makes the final decision about whether or how to proceed with its proposed activity. After making its decision, FHWA notifies Council.

Preliminary studies, such as walkovers and reconnaissance surveys, should be undertaken early in the planning and development process, at the Project Study Report (PSR) stage. In some situations, these preliminary studies will be sufficient to indicate that the environmental consequences of some alternatives warrant dropping them from further consideration without expending additional effort.

Complete cultural resources surveys, Native American consultation, and any other necessary identification studies are undertaken for each project alternative formally considered in the environmental document.

Studies that are destructive by nature (e.g., archaeological test excavations) may be postponed until a preferred alternative has been selected, unless all proposed alternatives would affect a particular resource. Postponing test excavations pending selection of a preferred alternative avoids unnecessary damage to the resources, in accordance with Caltrans and FHWA policy.

When the draft environmental document is prepared, each alternative is presented in roughly equal detail, and the proposed treatment of each historic property that would be affected by each alternative is described in an appropriate level of detail. The SHPO’s views on eligibility and effect should be included in the draft environmental document. A range of suitable mitigation options, rather than a precise commitment, may be presented if mitigation plans are not yet complete. Note that the above information is required to be included in the draft environmental document before FHWA can process it (i.e., allow it to be circulated for public review).

Section 106 responsibilities are not waived in emergencies, but alternative procedures outlined in 36 CFR §800.12 may be followed when the work proposed is an essential and immediate response to an officially declared disaster or state of emergency, and it is implemented within 30 days. FHWA may choose to use 36 CFR §800.12 in lieu of 23 CFR 668 for emergency undertakings implemented within 30 days or for rare instances of emergency undertakings not included in 23 CFR 668.

An emergency or a disaster must be officially declared by the President or the Governor in order to invoke 36 CFR §800.12 procedures. Emergency situations also occur when there is an imminent threat to public health or property; rescue and salvage operations to preserve life and property are exempt from review.

If the work will not be implemented within 30 days of the emergency or disaster, the undertaking must go through the standard Section 106 process or the Section 106 PA. SHPO and the Council have indicated that they are willing to accommodate non-routine processing and to expedite reviews; however, they will look for consideration of historic properties in project planning.

The District Environmental Branch should immediately contact FHWA, or the federal agency involved, to determine appropriate procedures and initiate action. Some federal agencies may be able to make exceptions to their regular permitting process in a declared emergency. For example, permit requirements could be waived for repairs or replacement in kind, or a permit could be issued after the fact.

Environmentally Sensitive Areas (ESAs) are locations of identified cultural, biological, or other resources that are to be protected by avoidance during Caltrans activities. Where establishment of an ESA protects an archaeological property, Caltrans may consider such properties National Register eligible for the purposes of the undertaking without conducting subsurface testing or surface collection. Caltrans PQS must establish the ESA according to provisions of Section 106 PA Attachment 5. In this situation Section 106 compliance would be concluded with a finding of “No Adverse Effect with Standard Conditions” (see sections 2-3.7 and 2-5.3 for further guidance on ESAs and effect findings). If other values are attached, consultation with SHPO may be necessary to determine if the ESA is sufficient to protect the property from adverse effects.

Careful use of ESAs is imperative:

• Failure to honor an ESA during construction will result in reopening the Section 106 process, causing project delays and jeopardizing continuing use of ESAs in general and/or loss of federal-aid funds.
• Effective protection of a designated ESA may require such an extensive commitment of staff time that site evaluation and treatment might be a more prudent course of action.

Generally, ESAs are designed for protection from casual, inadvertent damage, peripheral to the project. However, as designation of an ESA suggests a potential for project effects to the site, any site protected by an ESA must be included entirely within the APE.

Exhibit 2.7 on ESA Action Plans contains guidelines and format instructions.

Post-review discoveries most commonly occur when previously unidentified archaeological sites are uncovered during construction. However, other previously unknown resources could be discovered, or a project could be found to have unexpected effects on known historic properties.

If a project has substantial potential for post-review discoveries, Caltrans is encouraged to develop a plan to deal with them (36 CFR §800.13[a] and Section 106 PA Stipulation XV). Planning for discoveries is undertaken as part of Section 106 consultation with SHPO (see Chapter 5 for further details on planning for and managing discoveries). Usually a signed MOA implements a treatment or discovery plan. Then, when discoveries are made, Caltrans need only proceed according to that plan.

When there is no plan in place and an undertaking affects a previously unidentified property or affects a known historic property in an unanticipated manner, Caltrans shall promptly stop construction activity near the property and implement all reasonable measures needed to avoid, minimize, or mitigate further harm to the property. If the discovery involves a newly identified property, Caltrans may assume it to be National Register eligible for the purposes of Section 106.

Once a discovery is made,