National Historic Preservation Act Section 106 - Resolution of Adverse Effects (11-FD-d)
Consultation usually results in a Memorandum of Agreement (MOA) or Programmatic Agreement (PA), which outlines agreed-upon measures that the agency will take to avoid, minimize, or mitigate the adverse effects. In some cases, the consulting parties may not be able to reach an agreement, in which case the consultation is terminated and the undertaking agency must allow the ACHP an opportunity to comment before rendering its final decision. See 36 CFR 800.7.
The undertaking agency consults with the SHPO/THPO and other consulting parties, including Indian tribes and Native Hawai’ian organizations, local governments, permit or license applicants (developers), and members of the public, to resolve adverse effects. The ACHP may participate in the consultation when there are substantial impacts to important historic properties, when a case presents important questions of policy or interpretation, when there is a potential for procedural problems, or when there are issues of concern to Indian tribes or Native Hawai’ian organizations. The purpose of the continued consultation is to develop and evaluate alternatives or modifications that may help to avoid, minimize or mitigate adverse effects on historic properties. See 36 CFR 800.6.
National Historic Preservation Act Section 106 - Resolution of Adverse Effects Process
11-FD-d.1 to 11-FD-d.2 – Continue Consultation; Draft Historic Properties Management Plan (HPMP) (if applicable)
If the undertaking agency proposed undertaking has an adverse effect on historic properties, the undertaking agency must continue its consultation with the SHPO/THPO and other consulting parties to develop and evaluate alternatives or modifications that could avoid, minimize, or mitigate the adverse effects. See 36 CFR 800.6(b). Once the adverse effect finding is made, the undertaking agency must notify the ACHP and provide it with the documentation specified in 36 CFR 800.11(e). See 36 CFR 800.6(a)(1). The documentation provided to the ACHP must be provided to all other consulting parties as well. See 36 CFR 800.6(a)(3).
In addition, if there would be an adverse effect on historic properties, the developer may include a Historic Properties Management Plan (HPMP) to avoid or mitigate the effects. FERC HPMP Guidelines.The Federal Energy Regulatory Commission (FERC) recommends that developers draft their HPMP, regardless of whether adverse effects on historic properties have been identified. 18 CFR 5.18 (b)(3)(v); see also 18 CFR 5.16(d). Refer to 11-FD-a NHPA 106-Resource Survey and 11-FD-d NHPA 106 Resolution of Adverse Effects.
In addition, the undertaking agency must request that the ACHP participate in the consultation when:
- The agency official wants the ACHP to participate;
- The undertaking has an adverse effect upon a National Historic Landmark; or
- A programmatic agreement under §800.14(b) will be prepared;
Other consulting parties, including the SHPO/THPO, may request the ACHP’s participation. The ACHP will decide whether to participate based on the criteria found in Appendix A of part 36 CFR 800.
In addition, 36 CFR 800.6(a)(4) requires the undertaking agency to make information available to the public, including the information required by 36 CFR 800.11(e), and to provide the public with an opportunity to express its views on resolving the adverse effects of the undertaking.
The ACHP may provide advisory comments on the undertaking for which an MOA or PA is being executed even though termination has not occurred. The ACHP provides the comments to the undertaking agency when they execute the MOA or PA. See 36 CFR 800.7(b).
11-FD-d.3 to 11-FD-d.4 - Develop Memorandum of Agreement (MOA) or Programmatic Agreement (PA); Have the Consulting Parties and Undertaking Agency Reached an Agreement?
If the ACHP does not participate in the consultation, the undertaking agency consults with the SHPO/THPO and other consulting parties to seek ways to avoid, minimize, or mitigate adverse effects. If the parties agree on how the adverse effects are resolved, they execute a Memorandum of Agreement (MOA) or Programmatic Agreement (PA). The MOA or PA is then filed, along with the documentation required by 36 CFR 800.11(f), with ACHP. This filing is the formal conclusion of the Section 106 process and must occur before FERC approves the undertaking. See 36 CFR 800.6(b)(1)(i)-(iv). The PA or MOA typically provides, and FERC typically requires a license condition, that the license-applicant (developer) draft and implement a HPMP. Through an approved HPMP, FERC can require consideration and appropriate management of effect on historic properties throughout the term of the license. In doing so, FERC meets the requirements of Section 106. FERC HPMP Guidelines. FERC recommends that developers begin drafting the HPMP as soon as possible and submit it at the time they file a license application with FERC. 18 CFR 5.18 (b)(3)(v); see also 18 CFR 5.16(d).
11-FD-d.5 to 11-FD-d.8 - Request the ACHP Join the Consultation
If the undertaking agency and SHPO/THPO cannot reach an agreement, the undertaking agency must request that the ACHP join the consultation and provide the ACHP with the documentation required by 36 CFR 800.11(g). If the ACHP chooses not to join the consultation, or if the consultation is subsequently terminated, it must comment in accordance with 36 CFR 800.7(c). See 36 CFR 800.6(b)(1)(v).
36 CFR 800.7(c)(1) requires the ACHP to issue comments after providing the undertaking agency, consulting parties, and the public an opportunity to express their views. The undertaking agency must take the comments into account when reaching its final decision. See 36 CFR 800.7(c)(4).
If the ACHP decides to participate in the consultation, it must be included in the consultation process and the development and execution of the MOA. See 36 CFR 800.6(b)(2).
The execution and implementation of an MOA evidences an agency's compliance with Section 106 of the NHPA. The MOA governs the undertaking with respect to historical properties. See 36 CFR 800.6(c).
11-FD-d.9 to 11-FD-d.10 – Have the Parties, Including the ACHP
If at any time the consultation proves unproductive, the undertaking agency, the SHPO/THPO, or the ACHP may terminate consultation. This is true when the ACHP has joined the consultation at the request of the undertaking agency, but no agreement can be reached. If the undertaking agency terminates the consultation, it must notify all of the consulting parties and request comments from the ACHP. If a SHPO terminates consultation, the agency and ACHP may conclude the consultation and prepare an MOA without SHPO involvement. If a THPO terminates consultation and the undertaking is on or affecting historic properties on tribal lands, the ACHP must provide its comments. The ACHP may also terminate the consultation, but it must still provide comments to the undertaking agency. Any party that terminates consultation must notify all other parties and provide them with the reasons for termination in writing. See 36 CFR 800.7(a). The undertaking agency must take into account the ACHP's written comments in deciding how to proceed. See 36 CFR 800.7(c)(4).
11-FD-d.11 - Sign and Execute MOA or PA
The MOA or PA must be executed by the signatories to the agreement. The signatories have sole authority to execute, amend or terminate the agreement. The ACHP acts as a signatory when they have been included as a part of the consultation process under 36 CFR 800.6. Oftentimes, the only signatories are the SHPO/THPO and the federal agency. See 36 CFR 800.6(c)(1)
Certain parties may be invited to be signatories in addition to those specified in 36 CFR 800.6(c)(1). They include individuals and organizations that should, but do not have to, sign agreements. It is particularly desirable to have parties who assume obligations under the agreement become formal signatories. However, once invited signatories sign MOAs or PAs, they have the same rights to terminate or amend the MOA as the other signatories. 36 CFR 800.6(c)(2).
Other parties may be invited to concur in agreements. They do not have the rights to amend or terminate an MOA or PA. Their signature simply shows that they are familiar with the terms of the agreement and do not object to it. 36 CFR 800.6(c)(3).
11-FD-d.12 - Carry out MOA or PA Terms
If an MOA is executed, the agency proceeds with its undertaking in accordance with the terms of the MOA.
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