Category: Federal Compliance

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.

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.

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

5. Other Section 106 considerations

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

Under §800.5, the Lead Federal Agency starts by applying the criteria of adverse effect in consultation with the SHPO/THPO and any Native American or Native Hawaiian organization that attaches religious and cultural significance to the historic properties.

What is the criteria of adverse effect?

If your undertaking or project may alter, directly or indirectly, any of the characteristics of a historic property that qualify the property for inclusion in the National Register of Historic Places, and as a result diminish the historical integrity of the property’s location, design, setting, materials, workmanship, feeling or association, your project meets the criteria for having an adverse effect on a historic property.

What are some examples of adverse effects?

Your undertaking or project will meet the criteria of adverse effect in the following types of situations:

• Physical destruction of or damage to all or part of a historic property;
• Physical alteration of a historic property that is not consistent with the Secretary of the Interior’s standards for the treatment of historic properties (36 CFR part 68), including:
  • restoration
  • rehabilitation
  • repair
  • maintenance
  • stabilization
  • hazardous material remediation, and
  • provision of ADA access;
• Physical removal of the historic property from its historic location;
• Change of the character of the historic property’s use or of physical features within the property’s setting that contribute to its historic significance;
• Introduction of visual, atmospheric or audible elements that diminish the integrity of the historic property’s significant historic features;
• Neglect of a historic property which causes its deterioration, except where such neglect and deterioration are recognized qualities of a property of religious and cultural significance to a Native American or Native Hawaiian organization; and
• Transfer, lease or sale of a historic property out of Federal ownership or control without adequate and legally enforceable restrictions or conditions to ensure long-term preservation of the historic property’s significance.

How does assessing adverse affects to historic properties work?

Lastly, if no Historic Properties will be adversely affected by the Project or Undertaking, because the land developer was able to redesign their project to avoid adverse effects to historic properties, the Lead Federal Agency must provide notification of this finding to the SHPO, all consulting parties, and make the notification available for public inspection prior to approving your project or Undertaking.

If Historic Properties will be affected by the Project or Undertaking, because there are historic properties which may be affected by the Undertaking, the Lead Federal Agency must notify the SHPO and all consulting parties, invite their views on resolving the effects, and the next step is to resolve adverse effects, in accordance with §800.6.

 

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The next few posts in this series will focus on the following:

4. Resolving adverse effects to historic properties by your project
5. Other Section 106 considerations

Once you’ve determined that Section 106 applies to your project,  then the next step is to identify any historic properties potentially affected by your project or Undertaking.

Under 36 CFR 800.4, one starts by determining the Scope  of the Identification Effort, or the Project Area of Potential Effects (APE). The Project APE consists of the horizontal and vertical limits of the project, and includes the area within which adverse effects to Historic Properties could occur as a result of the project. The Project APE subject to environmental review under Section 106 includes all areas where activities associated with the project are proposed. The APE should encompass areas proposed for construction, vegetation removal, grading, trenching, stockpiling, staging, paving, and other activities that should be thoroughly described when developing the official Project Description.

The horizontal APE includes the maximum footprint of the Project on the ground surface and should represent the inventory survey coverage area for cultural resources such as archaeological sites, historic buildings and structures, as well as Tribal Cultural Resources.

The vertical APE includes the maximum depth below the surface to which excavations for project foundations and facilities will extend. Thus, it includes all subsurface areas where archaeological deposits could be affected and varies across the Project APE, depending on the type of infrastructure planned. The vertical APE also is described as the maximum height of project features, such as proposed buildings and structures, which could impact the physical integrity and integrity of setting of cultural resources, including districts and traditional cultural properties.

How does the identification process work?

Typically, the land developer, their consultant, and Federal Lead Agency first work together to conduct some preliminary desktop research. This desktop research includes activities such as requesting a records search from appropriate record holding offices, conducting a literature review of relevant previous studies conducted on the Project site or its immediate vicinity (typically a one-mile radius minimum), and carrying out local Tribal or Historic Society coordination activities to inquire about the presence of cultural resources they may have knowledge about. The APE may be adjusted based on these findings.

Second, the consultant will conduct a field site pedestrian survey of the Project APE to field check any previously identified cultural resources that were found during the desktop research and identify any new cultural resources that have the potential to be eligible for listing on the National Register of Historic Places, and thus be considered a “Historic Property”.

Once all the resources have been identified, the third step is to have the consultant evaluate their historic significance  by applying the National Register criteria (36 CFR part 63) to resources identified within the Project APE that have not been previously evaluated for National Register eligibility. Once the results of the eligibility evaluation are complete, and the consultant has provided the Federal Lead Agency with documentation that includes recommendations of eligibility for each resource and an impact assessment (whether or not each potentially eligible resource will be adversely affected by the Project), the lead agency must make the final determination that the criteria have or have not been met for each resource.

Next,  the Federal Lead Agency must consult with the State Historic Preservation Officer (SHPO) to ask if they agree (or concur) with the delineation of the APE and the eligibility determinations. If the SHPO concurs, the resource(s)  shall be considered eligible or not eligible for the National Register for Section 106 purposes, respectively.

Lastly, if no Historic Properties will be affected by the Project, because either there are no historic properties present or there are historic properties present but the Undertaking will have no effect upon them as defined in §800.16(i), theFederal Lead Agency must provide documentation of this finding, as set forth in §800.11(d), to the SHPO, notify all consulting parties, and make the documentation available for public inspection prior to approving your project or Undertaking.

If Historic Properties will be affected by the Project, because there are historic properties which may be affected by the Undertaking, the lead agency must notify all consulting parties, invite their views on the effects, and the next step is to assess adverse effects, if any, in accordance with §800.5.

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The next few posts in this series will focus on the following:

3. Assessing adverse effects to historic properties by your project
4. Resolving adverse effects to historic properties by your project
5. Other Section 106 considerations