Volume 26, Number 6    August 9, 2018

Section 106 Seminar Recap

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On June 20 we welcomed clients and other members of the regulated community to our Gainesville, Virginia headquarters office for a short seminar on Section 106 regulations.  Our Virginia-based clients and partners joined leaders from local counties and cities to discuss the specifics of Section 106 of the National Historic Preservation Act.  Experts from the US Army Corps of Engineers, the Virginia Department of Historic Resources (VDHR), and Walsh Colucci Lubeley & Walsh PC led our discussion about the new tribal listings, battlefield coordination, abandoned cemetery policy, and adverse effect determinations. 

You can view the full seminar here – and these are the key points for land developers:

Section 106 Overview

Ethel Eaton, Senior Policy Analyst at the Virginia Department of Historic Resources

  • Section 106 requires that all federal agencies consider historic properties as part of their decision-making and calls for an advisory review of all federal undertakings. 
  • For the purposes of Section 106, historic properties are defined as any prehistoric or historic site, district, building, structure, or object listed on or eligible for listing on the National Register of Historic Places.
  • The lead Federal agency may invite state recognized or non-recognized groups to participate in consultation based on a demonstrated interest in the undertaking’s effects on historic properties.
  • Consulting parties may include: VDHR’s State Historic Preservation Officer (SHPO), Tribal Historic Preservation Officer (THPO), Tribes, Applicant, local government representatives, and interested parties. 
  • When determining the area of potential effect (APE), consider the proposed development’s direct physical effect and indirect or secondary visual, audible, and sociocultural effects to historic properties.
  • When resolving adverse effects, consultation between interested consulting parties should result in a Memorandum of Agreement (MOA). An MOA is defined as a legal document signed by all parties that explains under what circumstances the adverse effect has occurred and lays out a mitigation plan for the adverse effect.  

Section 106 Process

Audrey Cotnoir, Environmental Scientist at the U.S. Army Corps of Engineers

  • The four-step Section 106 flow chart provides the potential paths a development project may take through the Section 106 process – depending on the type of development, size of development, and historic properties affected.
  • Potential outcomes and timeframes:
    • No Historic Properties Affected (No Effect): 30-day SHPO review (no objection)
    • No Adverse Effect: 30-day SHPO and consulting party review (no objection)
    • Adverse Effect: no specified timeframe, must consult with interested parties

Cemetery Removal Process

John Rinaldi, Shareholder at Walsh Colucci Lubeley & Walsh PC

  • When developing land that contains a family cemetery, the land owner has two options:
    • Allow the cemetery to remain in place
    • Obtain a court order allowing the relocation of the cemetery
  • It is at the discretion of the circuit court to determine whether the relocation is appropriate.  Virginia legal precedent currently favors the relocation of abandoned family cemeteries. 
  • Steps to relocate a cemetery are detailed here.   

Wetland Studies and Solutions can help you navigate the Section 106 process for your next project.  While this seminar focused primarily on Section 106 requirements for Virginia projects, we have expertise and experience in cultural resource management across the Mid-Atlantic.  If you have questions about the topics covered in this seminar or how Section 106 regulations affect your land development projects, please contact Christie Blevins, Boyd Sipe, or John Mullen.


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