Patrick,

I have not seen any definitive guidance for developing APEs because the types of projects, effects, and the landscapes that have potential historic properties vary so wildly. There's a world of difference between the installation of a cellular antenna on an existing building and the construction of a railroad corridor where one never existed.

Many federal agencies I've worked with often have rules of thumb they follow (written or not). SHPOs and the ACHP provide Section 106 training that include information about developing APEs, too. Programmatic agreements developed between federal agencies, SHPOs, and the ACHP can also incorporate APE guidelines that may be developed as part of appendices to the agreement or in separate procedures manuals. I'm working on one of these now where we are developing a procedures manual that will have APE guidance, but we're just getting started.

Since the James River ruling last year, the definitions of direct and indirect effects have certainly been clarified and the ACHP issued a memo to staff with additional clarification (both the court case and the memo are linked from this webpage, which also summarizes it), but the ramifications are still spreading through the 106 world. In the end, 106 reviews still look at both direct/indirect effects and all types of historic properties, so that hasn't changed. Where "direct" becomes more of an issue is where 106 intersects with Section 110(f) [which provides specific considerations for National Historic Landmarks that are directly and adversely affected] and in NEPA [where the degree of the effect comes into play when determining whether an Environmental Impact Statement is necessary].

I recommend you talk with staff at the Maryland SHPO if you have a specific concern about a project in your area. They should be able to provide you with guidance or at least point you in the right direction.

Best of luck!
Barbara

p.s. These are my own opinions and do not represent those of any organizations for which I volunteer or work, including the City of Minneapolis Heritage Preservation Commission and the Minnesota Department of Transportation.

------------------------------
Barbara Howard
Stonebridge Learning, LLC
Minneapolis MN
------------------------------

Original Message:
Sent: 03-02-2020 21:36
From: Patrick Thompson
Subject: Section 106 - areas of potential effect

Does anyone have good resources for helping one determining boundaries for an above-ground area of potential effects (APE)?

I know recent court cases have, I think, altered the definitions of "direct and indirect effects" as we previously knew them.  

I'd appreciate any help folks can offer.  Thanks. 

Patrick Thompson

Germantown, Maryland

Barbara,

Thank you for your reply.  I was, of course, aware of the ruling regarding "direct" and "indirect" and agree, the ramifications of those changes is still reverberating through the work we do every day. 

I appreciate you taking time to provide an answer and will review it in depth in the coming days. 

Patrick

------------------------------
Patrick Thompson
Germantown MD
(859)537-2563
------------------------------

Original Message:
Sent: 03-13-2020 12:41
From: Barbara Howard
Subject: Section 106 - areas of potential effect

Patrick,

I have not seen any definitive guidance for developing APEs because the types of projects, effects, and the landscapes that have potential historic properties vary so wildly. There's a world of difference between the installation of a cellular antenna on an existing building and the construction of a railroad corridor where one never existed.

Many federal agencies I've worked with often have rules of thumb they follow (written or not). SHPOs and the ACHP provide Section 106 training that include information about developing APEs, too. Programmatic agreements developed between federal agencies, SHPOs, and the ACHP can also incorporate APE guidelines that may be developed as part of appendices to the agreement or in separate procedures manuals. I'm working on one of these now where we are developing a procedures manual that will have APE guidance, but we're just getting started.

Since the James River ruling last year, the definitions of direct and indirect effects have certainly been clarified and the ACHP issued a memo to staff with additional clarification (both the court case and the memo are linked from this webpage, which also summarizes it), but the ramifications are still spreading through the 106 world. In the end, 106 reviews still look at both direct/indirect effects and all types of historic properties, so that hasn't changed. Where "direct" becomes more of an issue is where 106 intersects with Section 110(f) [which provides specific considerations for National Historic Landmarks that are directly and adversely affected] and in NEPA [where the degree of the effect comes into play when determining whether an Environmental Impact Statement is necessary].

I recommend you talk with staff at the Maryland SHPO if you have a specific concern about a project in your area. They should be able to provide you with guidance or at least point you in the right direction.

Best of luck!
Barbara

p.s. These are my own opinions and do not represent those of any organizations for which I volunteer or work, including the City of Minneapolis Heritage Preservation Commission and the Minnesota Department of Transportation.

------------------------------
Barbara Howard
Stonebridge Learning, LLC
Minneapolis MN

Original Message:
Sent: 03-02-2020 21:36
From: Patrick Thompson
Subject: Section 106 - areas of potential effect

Does anyone have good resources for helping one determining boundaries for an above-ground area of potential effects (APE)?

I know recent court cases have, I think, altered the definitions of "direct and indirect effects" as we previously knew them.  

I'd appreciate any help folks can offer.  Thanks. 

Patrick Thompson

Germantown, Maryland