NHPA: Resolving adverse effects to historic properties by your project

Once the Lead Federal Agency has determined that historic properties may be adversely affected by your project,  then the next step is to resolve adverse effects on the historic properties by your project.

Under §800.6, the Lead Federal Agency starts by notifying and consulting with the SHPO and consulting parties, as well as developing and evaluating alternatives or modifications to the Undertaking that could avoid, minimize or mitigate adverse effects on historic properties.

What should be included in adverse effects notifications?

The documentation required to accompany such a notification is listed at §800.11(e) of the regulations implementing Section 106. They include the following:

  • A description of the Undertaking, specifying the Federal involvement (land, funding or permit), and its APE, including photographs, maps and drawings, as necessary;
  • A description of the steps taken to identify historic properties;
  • A description of the affected historic properties, including information on the characteristics that qualify them for the National Register;
  • A description of the Undertaking’s effects on historic properties;
  • An explanation of why the criteria of adverse effect were found applicable or inapplicable, including any conditions to avoid, minimize, or mitigate adverse effects; and
  • Copies of summaries of any views provided by consulting parties and the public.

The notification is typically also accompanied by a copy of the identification and evaluation technical reports for reference. In addition to the notifications and consultation outlined above, the Lead Federal Agency can also choose to notify the Advisory Council on Historic Preservation (ACHP), an independent Federal agency that promotes the preservation, enhancement, and productive use of our Nation’s historic resources and advises the President and Congress on national historic preservation policy. If the ACHP decides to participate in the consultation, they too must be consulted about resolving adverse effects.

How does resolving adverse effects work?

Typically, taking into consideration the comments of the SHPO and all the consulting parties, the Lead Federal Agency (or the consultant) shall draft a Memorandum of Agreement (MOA), which is an agreement between all the parties on how the adverse effects will be resolved. The MOA documents the Lead Federal Agency’s compliance with Section 106 and the agreement will govern how the Undertaking is carried out going forward.

What are the parts of an MOA?

  • Title: MOA Among Parties 1,2,3 regarding the ABC Project
  • Whereas Clauses: Background Section
    • Who? — Federal Lead Agency, other consulting parties
    • What? –Undertaking
    • Where? –APE Description
    • When? –Construction Schedule Estimate
    • Why? –Purpose and Need
    • Authorities?
    • Constraints?
  • Stipulations (Actions): The Lead Federal Agency will ensure that the following stipulations are implemented
    • What will be done
    • Who will do what
    • When will it be done
  • Stipulations (Administrative): The MOA’s guidance system
    • Dispute resolution
    • Performance monitoring
    • Sunset
    • Amendment
    • Termination
    • Personnel Qualifications
    • Severability
    • Bonding (where applicable)
    • Conditioned upon funding: always stipulate what happens if funds are not available
  • Conclusion: Execution of this MOA, together with its submission by the Federal Lead Agency to the ACHP pursuant to 36 CFR 800.6(b)(1)(iv) and its implementation, evidences the Federal Lead Agency has taken into account the effects of the Undertaking on historic properties, and has afforded the ACHP a reasonable opportunity to comment on the Undertaking.
  • Signature Blocks:
    • Signatories: Any party that assumes a responsibility under the MOA (Agency, SHPO/THPO, Invited Signatories, and the ACHP if participating)
    • Concurring Parties: consulting parties

What happens if adverse affects cannot be resolved?

After consulting to resolve adverse effects, the Lead Federal Agency, the SHPO/THPO, or the ACHP may determine that further consultation will not be productive and terminate consultation. Any party that terminates consultation shall notify the other consulting parties and provide them the reasons for terminating in writing. Usually when consultation is terminated, the ACHP renders advisory comments to the head of the agency, which must be considered when the final agency decision on the undertaking is made. There may be circumstances where ACHP will recommend further discussion to try to resolve the matter.

The next post in this series will focus on the following:

5. Other Section 106 considerations