There are additional considerations land developers should keep in mind while working through the Section 106 compliance process. Those considerations include coordinating with the National Environmental Policy Act (NEPA), Special Requirements for protecting National Historic Landmarks (NHL), and when to use a Programmatic Agreements (PA).
Coordinating Section 106 with NEPA
Federal lead agencies are encouraged to coordinate Section 106 compliance with NEPA compliance, as many of the steps can meet the purposes and requirements of both regulatory statues in a timely and efficient manner. Agency officials should ensure that preparation of an Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) to the environment (including historic properties), or an Environmental Impact Statement (EIS) and Record of Decision (ROD) that serves as a public record documenting the agency’s decision regarding the Undertaking and among other things a summary of any applicable monitoring and an enforcement program for mitigation to impact to the environment by the Undertaking, includes the following:
- appropriate scoping,
- identification of historic properties,
- assessment of effects upon them,
- and consultation leading to the resolution of any adverse effects.
An agency official may use the process and documentation required for the preparation of an EA/FONSI or EIS/ROD to comply with Section 106 in lieu of the steps outlined in §800.3 to 800.6, if the agency has notified the SHPO and consulting parties that it intends to do so and the standards in §800.8(c) are met.
When to use a PA instead of an MOA
MOA are typically used for discrete or short term projects, while PA are typically used for long term, complex projects or multiple Undertakings. Some examples of when to use a PA include the following:
- When effects on historic properties are similar and repetitive or are multi-State or regional in scope;
- When effects on historic properties cannot be fully determined prior to approval of an undertaking;
- When non-Federal parties are delegated major decision-making responsibilities;
- Where routine management activities are undertaken at Federal installations, facilities, or other land management units; or
- Where other circumstances warrant a departure from the normal Section 106 process.
Consultation with the SHPO and consulting parties to develop a PA for dealing with adverse effects of complex projects or multiple Undertakings should follow the same protocols outlined under §800.6.