Historic Preservation - Section I

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 Section I. Questions and Answers on Historic Preservation Review

Part A: Questions and Answers on Section 106 Legislation

Part B: Questions and Answers on the Section 106 Process

The Participants in the Section 106 Process
The Steps in the Section 106 Process
  - Initiation of the Section 106 Process
  - STEP 1: Identification of Historic Properties
  - STEP 2: Assessment of Adverse Effects
  - STEP 3: Mitigation (Resolution of Adverse Effects)
  - Failure to Resolve Adverse Effects

Part C: Questions and Answers on Interim Trail Use Agreements and Section 106

 
  Part A. Questions and Answers on Section 106 Legislation

 

1.
What laws govern the Board’s consideration of historic properties?

As a Federal agency, the Board must comply with laws that consider impacts to historic properties including the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA). Both NHPA and NEPA govern potential impacts to historic properties located on private, state and Federal land. Other laws, such as the Native American Graves Protection and Repatriation Act (NAGPRA), and the Archaeological Resources Protection Act (ARPA), consider impacts to Federal lands only. A list of Federal historic preservation legislation can be viewed under Historic Preservation Legislation.

 

2. What is the purpose of the NHPA?

The NHPA was passed by Congress in 1966 in order to provide Federal oversight for historic properties throughout the nation. It was enacted during the Johnson administration to address concerns that important components of America's heritage were being lost to development and through urban renewal. The Act does not require the preservation of historic properties, but directs Federal agencies to consider the effects of their actions on such properties during their decision making. The Act has been amended several times beginning in the 1970s. The 1992 amendments created requirements for Federal agencies to consider the views of Federally recognized tribes when assessing impacts to historic properties, and established tribal historic preservation programs. The Act is published at 16 U.S.C. 470 .

3.
What is Section 106 of the NHPA?

Section 106 is the part of NHPA that directs Federal agencies to consider the effects of their actions or undertakings on historic properties such as buildings, districts, sites, structures, or objects included in or eligible for inclusion in the National Register of Historic Places (National Register), prior to the approval of a license or expenditure of funds, and to allow the Advisory Council on Historic Preservation (Advisory Council) a reasonable opportunity to comment on the undertaking. Section 106 is published at 16 U.S.C. 470f.

4. What kinds of Board actions are subject to Section 106?

In general, the Board's licensing or approval decisions for new rail constructions, mergers, rail abandonments, and some rail acquisitions, are subject to Section 106 and considered "undertakings" under its provisions (see 49 CFR 1105.6 & 49 CFR 1105.8).

 

5. What is the Advisory Council on Historic Preservation?

The Advisory Council on Historic Preservation (Advisory Council) was created by the NHPA in 1966 to oversee implementation of the Act. It is an independent Federal agency consisting of a 20-person committee, or Council, and a staff which conducts most of its day-to-day operations. The agency issues guidance, and provides training and individual project review assistance related to Section 106 of the Act.

 

6. Are there regulations that implement Section 106?

Yes. In 1978, President Carter issued a memorandum directing the Advisory Council to issue binding regulations to implement Section 106. The Section 106 regulations, entitled "Protection of Historic Properties," are codified at 36 CFR Part 800. The regulations outline the steps (the Section 106 Process) for considering effects to historic properties. The specific steps are described in Subpart B of the regulations beginning at 36 CFR 800.3 through 36 CFR 800.13. Since their first issuance, the Advisory Council has revised the regulations periodically to comport with changes to NHPA or to comply with judicial rulings. The most recent amendments to the Section 106 regulations became effective in August 2004.

7.
Does the Board have its own environmental rules that govern the consideration of historic properties?

Yes. The Board's environmental rules are located at 49 CFR 1105. The Board's regulations specifically addressing historic properties are at 49 CFR 1105.8.

 

8. Do the Board's environmental rules replace the Section 106 regulations?

No. The Board's rules only clarify its process for compliance with NHPA (and general environmental review under NEPA) for particular Board approvals or licensing decisions. They clarify the Board's requirements for completing historic reports and the identification and documentation of historic properties in cases that require an historic review.

 

9. What does NEPA have to say about historic properties?

NEPA and the regulations of the President's Council on Environmental Quality (CEQ) implementing NEPA (see 40 CFR 1500-1508) require the Board to take into consideration the direct, indirect and cumulative impacts of a major Federal action on the affected human environment. This includes considering potential impacts to historic properties or cultural resources.

 

10. What is the NEPA process?

NEPA requires Federal agencies to consider environmental consequences "in every recommendation or report on major Federal actions significantly affecting the quality of the human environment (42 U.S.C. 4332(2)(c))." CEQ has defined "major Federal action" to include projects regulated or approved by Federal agencies (40 CFR 1508.18). The purpose of NEPA is to focus the attention of the government and the public on the likely environmental consequences of a proposed agency action before it is implemented, in order to minimize or avoid potential negative environmental impacts (see footnote 1). An agency's NEPA review is generally accomplished through preparation of an Environmental Assessment (EA) or an Environmental Impact Statement (EIS). The first stage in the preparation of a NEPA document is scoping. Scoping is an open process for determining the scope of environmental and historic issues to be addressed in the NEPA document. For EIS level projects, the Board engages in formal scoping. (See 49 CFR 1105.10(a)(2) and 40 CFR 1501.7). After completion of the scoping process, the Board prepares an EA or draft EIS that addresses the environmental and historic issues and concerns identified during the scoping process, and issues the document for public review and comment. After the close of the comment period, the Board prepares a final environmental document (either a post EA or a final EIS) that addresses the comments received and reflects further environmental or historic analysis, as appropriate. Public participation is a large component of the process, and the Board provides for such participation in a number of ways including holding public meetings, and accepting written comments from the public, my tribes and Federal and state agencies. In reaching its final decision in a case, the Board takes into account the NEPA document(s) prepared, and all environmental comments that are received.

11. Can the Board complete the Section 106 process in conjunction with the National Environmental Policy Act?

Yes (see footnote 2). The Board generally complies with Section 106 in conjunction with its NEPA process since Board actions subject to Section 106 generally require some form of NEPA documentation. Figure 1 shows how the actual steps in the Section 106 process can be integrated within NEPA review.

 


 

 

Figure 1: Combining NEPA and the Steps in the Section 106 Process

 

 

 

 

12. Are there any classes of actions subject to Board approval that are exempt from any historic preservation reporting requirements?

Yes. The Board's environmental rules at 49 CFR 1105 exempt the following actions from Section 106 review: (1) the sale, lease, or transfer of a rail line for the purpose of continued rail operations where further Board approval will be required to abandon any service and there are no plans to dispose or alter properties subject to Board jurisdiction that are 50 years old or older; (2) a sale, lease, or transfer of railroad properties between corporate affiliates where there will be no significant change in operations; (3) trackage rights, common use of rail terminals, common control through stock ownership or similar action which will not substantially change the level of maintenance of rail property; (4) a rulemaking, policy statement, petition for declaratory order, petition for waiver of procedural requirements, or a proceeding involving transportation rates or classifications. (See 49 CFR 1105.8(b)).

 

13. What is the Board's Office of Environmental Analysis?

The Office of Environmental Analysis (OEA) is the office within the Board responsible for carrying out its responsibilities under NEPA, NHPA and related environmental laws. Under the Board's rules at 49 CFR 1105.2, OEA's Director, Victoria Rutson, is delegated the authority for preparing appropriate environmental documents, providing interpretations of the Board's NEPA process, and issuing recommendations on environmental matters to the Board. Ms. Rutson also acts as the Board's Federal Preservation Officer, and has overall responsibility for ensuring the proper completion of the Board's Section 106 process. (OEA staff contact information is provided in Section VI).

 

 
  Part B. The Section 106 Process


  The Participants in the Section 106 process

14. Who participates in the Section 106 process?

The participants in the Section 106 process are outlined at 36 CFR 800.2 of the Section 106 regulations. They include the Board and any consulting parties pursuant to 36 CFR 800.2 (c) such as applicants, the State Historic Preservation Officer (SHPO) or Tribal Historic Preservation Officer (THPO), Federally recognized tribes, and representatives from local governments; other consulting parties; the public; and the Advisory Council.

 

15. What is the Board's role under Section 106?

The Board has overall responsibility for all findings and determinations under Section 106. Although the Board may delegate certain activities to applicants, the Board must evaluate the result of each of these activities independently.

16.
What is the role of consulting parties in the Section 106 process?

The Section 106 regulations require the Board to involve consulting parties in its findings and determinations made during the Section 106 process. This means that OEA should make information about the project available to consulting parties throughout each stage of the process so that they can remain fully informed of the historic preservation issues in the particular project. OEA plans consultations appropriate to the scale of the undertaking and scope of Federal involvement and in coordination with NEPA review. A description of the parties that may consult under Section 106, and their roles in the process, can be found at 36 CFR 800.2(c).

 

17. Can any person or organization become a consulting party?

Other than the consulting parties specifically stipulated at 36 CFR 800.2(c), the addition of other consulting parties is at the discretion of OEA. However, the Section 106 regulations state that anyone with a "demonstrated interest" in the project may participate as a consulting party (see 36 CFR 800.2(c)(5)). This includes individuals that may have either an economic or historic preservation interest in the project. As a general rule, it is best to include the broadest spectrum of interests in the Section 106 process as this ensures a more balanced outcome.

18.
Is the Board only required to consult with tribes that have Federal recognition?

Yes. Only tribes that are Federally recognized tribes who have sovereign status as Indian tribal governments must be consulted under the NHPA and Section 106 of the Act (see 36 CFR 800.2(c)(2) (see footnote 3). However, tribes that do not have Federal recognition can still be included in the Section 106 process as "other consulting parties" at the discretion of the Board (see 36 CFR 800.2(c)(5)).

 

19. How do I determine if a tribe has Federal recognition?

 

The Bureau of Indian Affairs maintains a list of Federally recognized tribes.  See Tribal Leaders Directory.

 

20. What tribes should be contacted for a particular Board action?

Any Federally recognized tribe that may attach religious and cultural significance to historic properties located within a project area on either tribal or non tribal land (see 36 CFR 800.2(c)(2)(ii)). The Native American Consultation Database provides contact information for tribes by tribal name, state and county.

 

21. What is the purpose of the SHPO in Section 106 review?

Under the NHPA, the Governor of each state appoints a SHPO to oversee its historic preservation program. As part of its overall responsibilities, the SHPO also assists Federal agencies in carrying out their historic preservation responsibilities under Section 106 and consults with them at every step of the process regarding any Federal action that may affect historic properties in their state. A list of SHPOs by state can be viewed at http://www.cr.nps.gov/nr/shpolist.htm. Most SHPOs also maintain their own web sites.

22.
Do THPOs perform the same functions as SHPOs on tribal land?

Yes. Tribal Historic Preservation Officers (THPOs) are designated by the Department of the Interior to oversee the Section 106 process on tribal lands. Federal agencies must consult with the THPO in lieu of the SHPO for projects conducted on tribal lands. THPOs also act as the primary tribal contact under Section 106 for considering historic properties of significance to tribes located off tribal lands. A complete list of THPOs can be found at http://www.nathpo.org/map.html.

 

23. Do all Federally recognized tribes have THPOs?

No. Some tribes do not choose to participate in the program. In those cases where a tribe does not have a THPO, the Federal agency must consult with both the tribal official and the SHPO for projects located on or off tribal lands.

24. What is the role of the applicant in Section 106 review?

Applicants are generally included as consulting parties under Section 106 for actions for which they seek Board authority. Through its environmental regulations, the Board also authorizes applicants to complete some of the activities involved in Section 106 review (see 49 CFR 1105.8 and 36 CFR 800.2(a)(3)). However, the Board retains ultimate responsibility for Section 106 compliance and OEA independently assesses all conclusions reached by applicants regarding impacts of its actions on historic properties. The Board encourages applicants to hire third-party contractors to conduct any needed activities for completing Section 106 review in a timely manner pursuant to the Board's third-party contracting process (see 49 CFR 1105.4(j); 49 CFR 1105.10(d)); and Policy Statement of Use of Third-Party Contracting in Preparation of Environmental Documentation, 66 Fed. Red. 16, 975 (2001).

25.
When does the Advisory Council become involved in Section 106 reviews?

Since the January 1, 2001 revisions to the Section 106 regulations, the Advisory Council has reduced its involvement in most Section 106 reviews for individual projects. However, the Advisory Council is likely to get involved in projects where there is considerable controversy, or if there are disagreements from consulting parties regarding an agency's assessment of adverse effects. The Advisory Council can join in on consultations regarding a project at its discretion or if asked to by any consulting party involved in a particular Federal project. The specific circumstances governing the Advisory Council's involvement are included in Appendix A to 36 CFR Part 800.

26.
Does the Advisory Council have dedicated staff to assist Federal agencies and their applicants with Section 106 project reviews?

Yes. The Advisory Council has an office to assist Federal agencies and their stakeholders (including applicants) with historic preservation reviews.

 

The Steps in the Section 106 process

27. What are the steps in the Section 106 process?

  The steps are: Identification, Assessment, and Mitigation
(see footnote 4)
.

 

28. Can the steps in the Section 106 process be combined?

Yes. Section 36 CFR 800.3(g) - Expediting Consultation - allows for the combining of steps as long as the SHPO/THPO agree and consulting parties and the public have an opportunity to comment.

29. Are there timeframes associated with the Section 106 process?

Yes. For instance, the SHPO/THPO is required to respond within 30 days of receipt of a Board initial finding of no historic properties affected or no adverse effect. The Advisory Council is also subject to review timeframes if it enters the Section 106 process on its own and must respond to a Board request for consultation within 15 days. (See 36 CFR 800 Subpart B.)

30. How long does it take to complete the Section 106 process?

It depends on the nature and complexity of the project. Although the Section 106 regulations include timeframes for specific points in the process, parties may require additional time to complete the process. For instance, although the SHPO/THPO has 30 days to respond to a Board finding of no historic properties affected, this is contingent on the SHPO's/THPO's receipt of adequate documentation about the project. Requests by the SHPO/THPO for additional documentation can increase the time needed to complete the process, particularly if there are several such requests. Also, the process of seeking input from consulting parties is not subject to time limits. Finally, it can take time to reach an agreement for the resolution of adverse effects, especially if there are a lot of consulting parties involved and the potential adverse effects are likely to be significant.

 

  Initiation of the Section 106 Process

31. What action initiates the Section 106 process?

Initiation of the Section 106 process occurs when an applicant files a request with the Board for approval of a new rail construction, merger, rail abandonment or other action requiring historic review under the Board's regulations at

49 CFR 1105.8 (see footnote 5).

 

  STEP 1: Identification of Historic Properties

 

32.
What do the Section 106 regulations require at the identification step of the Section 106 process?

The Section 106 regulations require Federal agencies, in consultation with the SHPO/THPO, to first determine the area of potential effect (APE) for the proposed action, and make a "good faith effort" to identify any historic properties that may be located within the APE, and determine, with input from the SHPO/THPO and any Federally recognized tribes, if any of the historic properties identified are listed in or eligible for listing in the National Register. The Board must then determine if the project will have an effect on any identified historic properties (see 36 CFR 800.4).

 

33. What is the National Register of Historic Places?

The National Register was established under Section 101 of the NHPA to serve as the nation's formal list of significant cultural resources. Only properties listed in or eligible for listing in the National Register are given consideration under Section 106 of the NHPA.

 

34. Can applicants complete the identification step on behalf of the Board?

Yes. The Board's regulations at 49 CFR 1105.8 delegate preliminary identification and documentation activities under this step to applicants. Applicants must include specific information required in a historic report (see Section II) and submit it to the appropriate SHPO and the Board's Office of Environmental Analysis (OEA) prior to seeking authority

from the Board (see footnote 6).

 

35. How is the Area of Potential Effect (APE) determined?

For railroad abandonments, the APE is limited to the actual right-of-way (ROW) of the line. For construction cases, however, the APE should be determined in consultation with OEA and the appropriate SHPO/THPO. More than one APE may be appropriate depending on the type of resources located along the line and the types of planned activities associated with the construction project. For example, a rail construction project can have direct physical impacts to archaeological sites located within the right-of-way of the proposed action (first APE) and vibration, aesthetic and visual impacts to historic buildings, structures and other historic properties located outside the actual right of way for the proposed construction (second APE).

 

36. What makes an historic property eligible for the National Register?

To be eligible for listing in the National Register, an historic property must possess integrity of location, design, setting, materials, workmanship, feeling, and association and must meet at least one of the four National Register criteria. A property must also be at least 50 years old unless it is of exceptional significance.

 

37. What role do Federally recognized tribes have in determining the National Register eligibility or location of historic properties?

Tribal input is critical to establishing the National Register eligibility of historic properties that may have religious and cultural significance, as the tribes themselves are in the best position to understand what sites are significant or sacred to them. Certain landscapes and geological formations that may appear unremarkable may be sacred to tribes and even be part of oral histories that span generations. Areas like this can be eligible for the National Register as traditional cultural properties (see footnote 7). Consultation with tribes may also reveal the location of burials or other sites whose locations were previously unknown.

 

38. What is the next step upon completion of the identification process?

If OEA determines, based on input from the SHPO/THPO and any consulting parties involved that, either there are no historic properties present, or there are historic properties present but that they will not be adversely affected by the proposed action, OEA makes a finding of no historic properties affected pursuant to 36 CFR 800.4(d)(1). The SHPO/THPO then has 30 calendar days to either agree or disagree with OEA's finding. If the SHPO/THPO does not respond within 30 days, the agency's responsibilities under Section 106 are fulfilled. Where effects to historic properties are anticipated, OEA makes an historic properties affected finding and moves to the next step of the Section 106 process (see footnote 8).

 

  STEP 2: Assessment of Adverse Effects

39. How does OEA assess adverse effects to historic properties for a Board action?

OEA makes a finding of either no adverse effect or adverse effect based on input from the SHPO/THPO, the applicant, any consulting parties, and by applying the criteria of adverse effect pursuant to 36 CFR 800.5(a). OEA then submits its finding to the SHPO/THPO and any consulting parties, including any Federally recognized tribes for their review. If OEA determines that there will be adverse effects, it consults to resolve adverse effects pursuant to 36 CFR 800.6 and moves to the next step of the process. OEA also notifies the Advisory Council of its adverse effect finding.

 

40. What happens if the SHPO/THPO, a consulting party, or a Federally recognized tribe disagrees with a finding of no adverse effect?

The SHPO/THPO and any consulting parties and Federally recognized tribes have 30 days to object in writing to a finding of no adverse effect. If OEA receives an objection to its finding, OEA may choose to consult further on the issue, or ask the Advisory Council to participate in consultation and provide its views on the matter. The Advisory Council generally provides its written opinion within 15 days of receiving such a OEA request for comment on the finding (see footnote 9). If the Advisory Council disagrees with an OEA finding, it may issue comments to SEA explaining its opinion. OEA then considers the Advisory Council comments when reaching its final determination regarding its no adverse effect finding. The Board's responsibilities under Section 106 are then fulfilled (see 36 CFR 800.5(c)(2)).

 

41. What is a conditional no adverse effect finding?

A particular Board action may be found, based on consultation with the SHPO/THPO, to have no adverse effect with the proviso that the action will be modified, or conditions imposed, to avoid adverse effects (see 36 CFR 800.5(b)).

 

  STEP 3: Mitigation (Resolution of adverse effects)

 

42. How does OEA proceed if it determines that there will be adverse effects to historic properties as a result of a particular Board action?

OEA must notify the Advisory Council of its adverse effect finding and continue to consult with the SHPO/THPO, consulting parties and Federally recognized tribes to develop measures to avoid, mitigate or minimize adverse effects to historic properties (see footnote 10). SEA asks the Advisory Council to participate in consultations if it will be developing a programmatic agreement outlining the Section 106 process for a particular action pursuant to 36 CFR 800.16(b), or if the action will have an adverse effect to a National Historic Landmark. The Advisory Council has 15 days to respond to OEA's request for consultation.

43.
What mitigation measures does the Board require of its applicants to resolve adverse effects to historic properties?

The Board's ability to protect historic properties is very limited (see footnote 11). The Board cannot deny authority for a railroad to take an action that would otherwise meet the relevant statutory criteria solely on the grounds that it would adversely effect historic resources. With respect to rail line abandonments, the Board can impose historic preservation conditions only to the extent that the particular property is owned by the railroad seeking abandonment (either full ownership in fee or a long-term interest in the property) and the property has a sufficient nexus to the proposal under review. When the Board imposes historic preservation conditions on a particular property, the Board cannot force the applicant to sell off or donate its property, or impose a restrictive covenant upon the deed. Essentially, documentation of the historic resources (taking photographs or preparing a history) before they are altered or removed is the only from of nonconsensual mitigation the Board can require. Although the Board has limited authority to protect historic properties, if the consulting parties agree to undertake additional mitigation beyond what the Board may require (such as preservation of a resource), such consensual mitigation can be incorporated into a memorandum of agreement (MOA) or programmatic agreement (PA).

 

. 44. How does OEA document the resolution of adverse effects to historic properties?

OEA records the resolution of adverse effects to historic properties in a memorandum of agreement (MOA) or, more rarely, in a programmatic agreement (PA). (See 36 CFR 800.6.) These are legal documents in which agreed upon measures to resolve adverse effects to historic properties are clearly spelled out in a series of stipulations. For projects requiring an EIS, the Section 106 regulations also allow agencies to stipulate such measures in its final decision (Record of Decision), as long as the SHPO/THPO agrees to this approach in advance. (See 36 CFR 800.8(c)(4)(i)).

 

45. What is the difference between a signatory party and a concurring party to an MOA or PA?

A signatory to an MOA or PA has full legal rights under the agreement and can make amendments or terminate the agreement where such provisions are included. Concurring parties who sign agreement documents only do so to note their agreement or concurrence with the document, but have no legal authority under the agreement to make changes or objections of any kind. (See 36 CFR 800.6(c)).

 

46. Who are the usual signatories to an MOA?

The signatories to an MOA or PA generally consist of OEA, the applicant (see footnote 12), and the SHPO or THPO. The Advisory Council may also be signatory to an MOA or PA if it has entered the Section 106 process for a particular Board action. OEA may also include other signatories at its discretion.

 

47. What completes the Section 106 process for projects that have adverse effects to historic properties?

The execution of a PA or MOA completes the Section 106 process for Board actions that may adversely affect historic properties. (See 36 CFR 800.6(c)).

 

  Failure to Resolve Adverse Effects

 

 

48. What happens if OEA, and SHPO/THPO, are unable to agree on measures to resolve adverse effects?

OEA, SHPO/THPO, or the Advisory Council (if it has entered the process) each may chose to terminate consultation altogether if any of the parties believe that consultation is no longer effective or will not result in a reasonable outcome (see 36 CFR 800.7(a)). The party terminating consultation must issue written comments to the consulting parties outlining its reasons for terminating consultation. The Advisory Council may also issue comments without termination of consultation if an MOA or PA will be executed to resolve adverse effects to historic properties (see 36 CFR 800.7(b)).

 

 

 
  Part C.           Interim Trail Use Agreements and Section 106

49. What is an agreement for interim trail use?

An interim trail use agreement, under Section 8(d) of the National Trails System Act (Trails Act), 16 U.S.C. 1247(d), is a voluntary arrangement between a trail sponsor and the railroad to preserve a railroad right-of-way that would otherwise be abandoned for future railroad use ("rail banking"), while allowing the property to be used in the interim as a trail.

 

50. What is the Board's role in the development of an interim trail use agreement?

 

Children reading plaque erected along 46-mile long Lake Wobegon Trail built along abandoned BNSF rail corridor. Photo courtesy of Stearns County Parks, MN.


 



Under Section 8(d) and the Board's Trails Act regulations at 49 CFR 1152.29, a state or local government or private organization can request a trail condition (known as a Notice of Interim Trail Use (NITU) or Certificate of Interim Trail Use (CITU)) for a line authorized to be abandoned. To invoke the Trails Act, a prospective trail sponsor must file a request with the Board and a statement of willingness to assume responsibility for management of the right-of-way, legal liability arising out of its use, and payment of taxes, as well as an acknowledgment that interim trail use is subject to "reconstruction and reactivation of the right-of-way for rail service." (See 49 CFR 1152.29(a)(3)). If the railroad agrees to negotiate, the Board will impose a trail condition providing 180 days, plus any extensions, for the parties to work out an agreement. Interim trail use under 16 U.S.C. 1247(d) is voluntary on the part of both the railroad and the potential trail sponsor. Thus the Board cannot impose an interim trail use arrangement upon unwilling parties.

 

51. When must a request for interim trail use be made?

The Board's rules at 49 CFR 1152.29 establish deadlines for potential trail sponsors to make a request for a CITU trail condition under Section 8(d). However, the Board will accept late filed requests as long as it retains jurisdiction to do so in a particular case, meaning before the abandonment is "consummated."

 

52. Does Section 106 apply to rail lines that have been rail banked pursuant to an interim trail use agreement?

Because the Board's role in establishing interim trail use/rail banking is ministerial, and the Board lacks discretion to force or deny interim trail use if the statutory conditions are met, potential trail use does not require environmental review nor is it part of the Section 106 process (see CART v. STB 267 F. 3d 1144 (D.C. Cir. 2001) and Goos v. ICC, 911 F.20 1283 (8th Cir. 1990)). See the Board's web site for additional information on trail use.

 

Footnote 1
Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371 (1989)    (Marsh).
The process for coordinating NEPA with Section 106 review is outlined in the Section 106 regulations at 36 CFR 800.8.
The Section 106 regulations at 36 CFR 800.16(m) define an Indian tribe as, “a tribe, band, nation, or other organized group or community, including a native village,   regional corporation or village corporation, as those terms are defined in section 3 of the Alaska Native Claims Settlement Act (33 U.S.C. 1602), which is recognized as eligible    for the special programs and services provided by the United States to Indians because of their status as Indians.”
The Section 106 regulations refer to the steps as:  Initiation of the Section 106 process (Section 800.3); Identification of historic properties (Section 800.4); Assessment of adverse effects (Section 800.5); and Resolution of adverse effects (Section 800.6).  Each of these steps is discussed in the Section 106 regulations at 36 CFR Part 800 (see Figure 1).  (The Advisory Council provides a step-by-step guide for each section of the regulations including the steps in the Section 106 process.)  The Board generally combines the first and second steps.
The Board’s actual approval of these actions is considered an undertaking under Section 106 and thus requires historic preservation review. The completion of the Section 106 process generally must occur prior to the Board’s issuance of final approval of these actions.  For railroad abandonments where effects to historic properties are anticipated but not yet known, the Board may conditionally approve the abandonment contingent on completion of the Section 106 process prior to the onset of any salvage associated with the proposed abandonment.  This allows the discontinuance of rail service to proceed prior to completion of the Section 106 process.
Applicants are not required to complete historic reports if they have hired a third-party contractor to assist in completing Section 106 review pursuant to the Board’s third-party contracting process (see 49 CFR 1105.10(d)).
See National Register Bulletin 38 on Traditional Cultural Properties.
For abandonment proceedings, the Board generally notifies the       SHPO/THPO and public through the issuance of an EA that includes its initial findings.
The Advisory Council may extend this 15 more days, but must notify the Board of such an extension.
Advisory Council participation at this point is guided by Appendix A to Part 800.
See Implementation of Environmental Laws, 7 I.C.C.2d 807, 828-29 (1991).
Applicants generally assume some or most of the responsibility for fulfilling the stipulated mitigation conditions included in an agreement document. Under   36 CFR 800.6(c)(2)(iii) any party that assumes a responsibility under an MOA or PA should be invited to be a signatory.

 

 

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