The Taft Museum of Art in Cincinnati, Ohio

By inserting Sections 106 and 110(f) into the National Historic Preservation Act of 1966, Congress provided a means for the protection of historic properties (including National Historic Landmarks) with regard to federally-funded projects, or those that are approved, assisted, licensed or permitted by federal agencies. Section 106 requires agencies to "take into account" the effects of their actions on historic properties.

In addition to Section 106, Section 110(f) of the Act requires federal agencies to place a higher standard of care and greater emphasis of protection on National Historic Landmarks (NHL). It "requires that the agency official, to the maximum extent possible, undertake such planning and actions as may be necessary to minimize harm to any NHL that may be directly and adversely affected by an undertaking" or project.

Public input has an important role in Section 106 process. Specifically, the focus here is the involvement of NHL owners, stewards, and friends as a way to stay alert about potential federal projects that could impact or even threaten certain characteristics and/or diminish the historic integrity of your NHL.
As an owner or steward of an NHL, it is incumbent that you insert yourself in the process when feasible and necessary, bring your knowledge and expertise to the table, and apprise agencies of necessary information that will help them carry out their responsibilities under the Act.
Construction workers use machinery to dig a large hole. The Taft Museum of Art is in the background.
The Lytle Tunnel Rehabilitation Project occurred across the street from the Taft Museum of Art.

Photo courtesy of Marvin Lennon with ODOT.

A relevant case study and an excellent example of the Section 106 process is the recent Lytle Tunnel rehabilitation project in Cincinnati, Ohio. It reflects how a successful resolution of concerns can be achieved through effective engagement and thoughtful consideration of alternative viewpoints. It is not the intent of this article to recapitulate the detailed documentation of the Ohio Department of Transportation’s (ODOT) compliance with Section 106; rather, the goal here is to point out certain aspects of the process undertaken specifically for this project that reflect and reinforce the spirit, intent, and flexibility behind Sections 106 and 110(f). It may serve as a helpful example for owners and stewards when faced with a federal project involving your NHL.
Tall buildings and construction machinery.
View of the Lytle Tunnel Rehabilitation Project from the front porch of the Taft museum of Art.

Photo courtesy of Mark Rohling, Taft Museum of Art.

The Lytle Tunnel Rehabilitation Project was relatively major in scope and scale and occurred adjacent to a NHL, the Baum-Taft House (currently known as the Taft Museum of Art). The tunnel encompasses a section of a busy interstate highway that passes through downtown Cincinnati. Major construction work was to take place both above as well as below ground, in order to make necessary repairs and upgrade the tunnel’s operating systems. The federal agency with jurisdiction over the undertaking, Federal Highway Administration, with ODOT acting as their agent, was responsible for complying with the 106 review process.
Early in the project planning phase, ODOT provided opportunities for public involvement by holding an open house and meeting with members of the public, stakeholders, and local government officials. The intent of the open house was to explain the details of the project and allow for input and comment. Officials with the Taft Museum of Art participated and after gaining an increased understanding and appreciation of the complexities and scope of the tunnel project, the Museum relayed their concerns regarding potential effects of construction activities. Consistent with the emphasis on public participation as a means of presenting information to responsible agencies, the Museum provided extremely thorough, insightful, and detailed comments and concerns.

Specifically, this focused on the possibility of different forms of vibration, potentially impacting the historic building and its world-renowned and irreplaceable artworks; in particular, murals painted by the notable African-American artist Robert S. Duncanson. These murals were painted in 1850 directly on the plaster surface of several interior walls, thus the Museum’s heightened concern as to their fragility, vulnerability, and need for protection. Other concerns focused on the museum’s responsibilities for traveling art exhibitions from other institutions, accessibility issues, parking, maintenance concerns, and excessive dust and debris generated by the construction work.

In response to the expressed concerns, ODOT considered, developed, and committed to various measures as a way to avoid potential adverse effects. Many of these measures focused on steps to minimize potential impacts from construction-related vibration, which led to the installation of vibration monitoring devices to provide notifications throughout construction. ODOT also proposed implementation of pre-construction and post-construction surveys, conducted field trials using actual construction methods, and committed to work directly with the City of Cincinnati and the Taft Museum of Art throughout the project to ensure their concerns were sufficiently acknowledged.

These agreed-upon measures put into place by ODOT serve as an example of modifications or conditions imposed on an undertaking that would lead the agency to submit a finding of “no adverse effect” for the project. Commonly referred to as a “conditional no adverse effect” determination, these types of agreements are provided for in the Advisory Council of Historic Preservation (ACHP) regulations at: 36 CFR 800.5 (b), Finding of no adverse effect: “The agency official, in consultation with the State Historic Preservation Office (SHPO)/Tribal Historic Preservation Office (THPO), may propose a finding of no adverse effect when …the undertaking is modified or conditions are imposed,…to avoid adverse effects.” These conditions were properly documented, reviewed, and agreed to by the parties (here, ODOT and the Museum, in consultation with Ohio State Preservation Office or SHPO, who subsequently concurred with the no adverse effect determination).

The emphasis throughout this process is on consulation, as defined in the ACHP regulations: "the process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement..." In essence, consulation involves reaching out, sitting down, listening, and ultimately, coming to some form of compromise solution that "accomodate(s) historic preservation concerns with the needs of federal undertakings..." This is the primary objective of the 106 process. And since the ACHP reguations are not specific as to how to consult, this actually can be beneficial in that it leaves open various opportunites for creative engagement and sharing information.

In the case of the Lytle Tunnel Rehabilitation Project, both the museum officials and representatives of ODOT fully embraced the spirit of consultation by offering invitations to each side to gain access to what is frequently unknown or unshared territory. Specifically, this meant that the museum opened their doors to ODOT employees in order to fully experience and appreciate the many paintings, murals, sculptures, decorative arts and porcelains owned and displayed by the museum. Conversely, ODOT officials invited museum staff to tour the construction zones of the tunnel project, giving them an up-close and unique look at the mechanical, electrical, ventilation and lighting systems that were in need of upgrades. This unique opportunity for consulting parties to meet with agency officials allowed for new insights and heightened levels of appreciation for participants in the process. The museum staff and ODOT officials came away with a heightened awareness of the artworks to be protected and the tunnel systems and facilities to be upgraded.

In retrospect, ODOT was very thorough in complying with their Section 106 and 110(f) responsibilities. They ensured that the 106 process was initiated early in the project’s planning, identified the presence of the NHL and a National Register-listed park in the area of potential effect (APE)[1], and sought information from the public. Throughout the process they more than adequately documented the steps of the process, consulted with the SHPO, and were careful to coordinate with additional requirements of the National Environmental Policy Act (NEPA). True to the definition and intent of proper consultation, ODOT sought, discussed, and considered the views of the Museum and others participants, including the National Park Service and the ACHP, due to the special requirements for NHLs stated in the Act and the ACHP regulations. Good-faith consultation, sufficient involvement of participants, and acknowledgment of other’s concerns—these are key ingredients to a successful resolution under Sections 106 and 110(f).
[1] The ACHP regulations define the APE as: “the geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties…”

Originally published in "Exceptional Places" Vol 12, 2017, a newsletter of the Division of Cultural Resources, Midwest Region. Written by Geoffrey Burt.

Last updated: June 14, 2018