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Please note:

On January 11, 2001, revised Section 106 regulations took effect.

The Section 106 guidance material below is based on previous regulations, but is still generally relevant when assessing a Federal undertaking's impact on historic properties.

The National Park Service Programmatic Agreement: How Is it Working?

January 21, 1997

First anniversary evaluation is generally positive

The signatories to the 1995 NPS Nationwide Programmatic Agreement (NPS, ACHP and the National Conference of State Historic Preservation Officers) met in October 1996 to evaluate the PA's utility as a tool for Section 106 compliance. While all agreed that the PA does assist Parks in meeting their Section 106 responsibilities, additional information and feedback is needed to determine what changes or implementing strategies may be in order. To address these questions, a committee representing the signatories plans to meet during 1997.

This Fed-Note highlights key provisions of the Agreement, which went into effect October 1, 1995, concurrent with the National Park Service's reorganization. The Agreement is a revision of the 1990 NPS Nationwide Programmatic Agreement, reflecting the delegation of Section 106 responsibilities to Park Superintendents.

Key points of the 1995 NPS nationwide PA

  • NPS has a preservation mission. The NPS Nationwide Programmatic Agreement is premised upon the fact that NPS has special capabilities in the historic preservation area, including staff expertise, a mission and statutory obligations that reinforce historic preservation practice, and agency-specific historic preservation policies and guidelines that provide internal checks and balances. Certain NPS policy documents must guide decisions made under the PA. (See "key decisionmaking documents.")

  • For "programmatic exclusions," Section 106 review is delegated to NPS. These special NPS capabilities have made feasible the establishment of "programmatic exclusions" for which Section 106 review is delegated to Park Superintendents, and no further review by ACHP or SHPO is needed. Please note that in such cases Section 106 review is delegated, not exempted.

  • Adverse effect actions cannot be "programmatic exclusions." No matter how closely an activity resembles the description of a programmatic exclusion, it cannot be considered as such if it has the potential to adversely affect historic properties.

  • Adequate information must be available to the decisionmaker. Deciding that an activity qualifies as a programmatic exclusion must be based upon information adequate to identify and evaluate affected historic properties. (The sole exception to this "adequate information" requirement is land acquisition for park purposes; nonetheless, land acquisition with adverse effect potential would fail the programmatic exclusion test.)

  • Other undertakings are reviewed under ACHP regulations. For undertakings not meeting the "programmatic exclusion" description, Section 106 review is completed according to the steps outlined in ACHP regulations 36 CFR Part 800).

  • Enhanced communication and cooperation between NPS and SHPOs is an important value in the agreement. To that end, periodic evaluation of how the PA is working will help ensure that the PA is doing its job.

Periodic evaluation of the 1995 PA

The 1995 NPS agreement built in a way of monitoring how the PA has worked over time, including holding a meeting among the signatories after its first year [Stipulation XII, Monitoring, Termination, and Expiration] All other monitoring is envisioned as taking place between parks and SHPOs [Stipulation IX, Cooperation and Communications]. The first such meeting was to be scheduled within the first six months of the agreement's effective date of October 1, 1995; thereafter, each Park Superintendent is expected to invite the appropriate SHPO(s) to meet every two years.

Under this schedule, SHPOs and Park Superintendents should be scheduling their second such evaluation meeting sometime during 1998. SHPOs may wish to contact Park Superintendents or the Park's Section 106 Coordinator to set up discussions in cases where no meeting has yet taken place.

How the NPS planning process intersects with Section 106 compliance

The 1990 and 1995 NPS PAs differ from the several NPS PA documents they replaced in this important way: the PA recognizes NPS' internal planning process, but differentiates the completion of Section 106 review from the NPS planning process.

This change was made in 1990 because prior experience had proved it was not always possible to adequately reconcile the NPS planning process with Section 106 responsibilities. Drafters of the 1990 PA recognized, however, that informal consultation between NPS and SHPOs during the NPS planning process was both desirable and essential for fulfilling ACHP's regulations' encouragement of early Section 106 consultation. In unusual cases, ACHP may also elect to consult informally during the NPS planning process.

Requests for comments about plans

When NPS plans such as General Management Plans (GMP) or Development Concept Plans (DCP) are scheduled for development, the 1995 NPS PA directs the Park to "request comments" from ACHP about the plan's preservation concerns. Such concerns might include management objectives, identification and evaluation of historic properties, and the potential effects of individual undertakings (and alternatives) on historic properties. (See Stipulation VI.D).

But this "request for comments" about the GMP or DCP is not the same as Section 106 compliance for the plan's component undertakings.

The Section 106 compliance process for the component undertakings is distinct from a comment on the plan itself.

Sufficient information is the key

Generally, NPS plans such as GMPs or Resource Management Plans do not include sufficient detail to permit simultaneous completion of Section 106 requirements for the plan's component undertakings. For this reason, the undertakings' Section 106 review usually would occur at a later time, when more information about the resources or understanding is available.

Simultaneous plan and Section 106 review

If information is available, Section 106 review of component undertakings can occur simultaneously with NPS' request for general comments about the GMP or other plan. In fact, it may be desirable to complete these two steps at the same time if funding is available for some or all of the component undertakings. The key is whether there is adequate information at the "plan" stage to sufficiently complete Section 106 requirements.

For project-specific plans, concurrent Section 106 review of component undertakings can work well. There are some types of NPS planning documents—such as a project-specific Development Concept Plan—that lend themselves to simultaneous commenting on the plan and the completion of Section 106 regulatory requirements for the plan's component undertaking(s). ACHP encourages this when project implementation is imminent.

Decision about simultaneous review

The decision about simultaneous plan review and Section 106 compliance for component undertakings should be made by NPS at the outset of the planning process. The decision should be based upon: 1) when the component undertakings are likely to take place; and 2) whether adequate information about historic properties and effects is available at the outset.

What is a "programmatic exclusion?"

The 1995 NPS PA lists specific types of non-adverse effect undertakings as "programmatic exclusions." This means that they can be reviewed for Section 106 purposes by NPS park personnel without further review by ACHP or SHPO. See Stipulation IV of the NPS PA document for a complete description. In general terms, these "programmatic exclusions" include:

  • preservation maintenance (housekeeping, routine and cyclic maintenance, and stabilization) as defined in NPS-28;

  • routine grounds maintenance, such as grass cutting and tree trimming;

  • installation of environmental monitoring units, such as those for water and air quality;

  • archeological monitoring and testing and investigations of historic structures and cultural landscapes involving ground disturbing activities or intrusion into historic fabric for research or inventory purposes;

  • acquisition of lands for park purposes, including additions to existing parks;

  • within previously disturbed areas, rehabilitation and widening of existing trails, walks, paths and sidewalks; repaving of existing roads or parking areas; placement, maintenance or replacement of utility lines, transmission lines, and fences;

  • rehabilitation work limited to actions for retaining and preserving, protecting and maintaining, and repairing and replacing in kind materials and features, consistent with the Secretary's Standards;

  • health and safety activities such as radon mitigation, and removal of asbestos, lead paint, and buried oil tanks;

  • installation of fire detection and suppression systems, and security alarm systems, and upgrading of HVAC systems;

  • erection of signs, wayside exhibits, and memorial plaques;

  • leasing of historic properties consistent with NPS-38 (with certain conditions).

Such programmatic exclusions do not apply if the undertaking has the potential to have an adverse effect on historic properties. Also not included are activities that have no potential to affect historic properties, in which case they do not constitute undertakings subject to Section 106, even though they may appear on the list.

Agreements superseded by the 1995 NPS PA:

  • Memorandum of Understanding (6/76), concerning NPS planning documents.

  • Programmatic Memorandum of Agreement (12/19/79) with NPS and its amendments (9/11/81 and 12/20/85).

  • Programmatic Memorandum of Agreement (12/19/82) with NPS concerning leasing of historic properties.

  • Programmatic Agreement (8/15/90) for operation, management, and administration of the National Park System.

Review of undertakings covered by superseded agreements

  • For undertakings reviewed under the 1990 Nationwide Programmatic Agreement, no additional review would be necessary unless there had been a change in the proposal or its effects to historic properties.

  • For undertakings pursuant to plans approved under the Programmatic Memorandum of Agreement (12/19/79) and its amendments (9/11/81 and 12/20/85), consultation would not be necessary unless issues regarding identification, evaluation, or assessment of effect remained unresolved after completion of the planning and review process. Such unresolved issues would then be addressed under the terms of the 1995 PA (not the obsolete agreement used for the original review) or the applicable sections of ACHP's regulations, as appropriate.

Project-specific agreements that predate October 1, 1995

Such MOAs remain in effect, unchanged. Park-based or program-based programmatic agreements should be updated to reflect the reorganization of NPS and the role of the superintendent as the responsible agency official for Section 106 purposes.

Key decisionmaking documents

The 1995 NPS PA lists certain documents that should guide decisions made under the agreement. These include:

  • NPS Management Policies
  • NPS-28, Cultural Resource Management Guideline
  • NPS-2, Planning Process Guideline
  • NPS-6, Interpretation and Visitor Services Guideline
  • NPS-12, NEPA Compliance Guideline
  • NPS-38, Historic Property Leasing Guideline
  • 36 CFR Part 18, Leases and Exchanges of Historic Property

Special information-sharing provisions

The 1995 PA continues a special system of information sharing and communications among ACHP, SHPO(s) and NPS. This feature of the agreement differs from normal Section 106 review practices: it assigns to the SHPO and ACHP the responsibility for notifying NPS Park Superintendents and bringing them into consultation when any NPS area may be affected by an undertaking proposed by other Federal agencies. (See Stipulation IX. C, and E.)

In addition, the SHPO treats the Park Superintendent as an "interested person" under State environmental and preservation laws with regard to NPS undertakings and cultural resources.

Some points to keep in mind about this provision are:

  • The Park Superintendent must be treated as an interested party when NPS areas may be affected. Involvement of other NPS personnel would not be sufficient unless the Superintendent or Field Director delegates participation to others.

  • NPS areas include not only park units, but also National Historic Sites, National Trails, Heritage Areas or Corridors, and associated lands in and around park units.

Updated April 26, 2002

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