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Frequently Asked Questions
The Advisory Council on Historic Preservation (ACHP) recently designated a prototype programmatic agreement (PPA) for the United States Department of Agriculture, Natural Resources Conservation Service (NRCS). The following "Frequently Asked Questions" are intended to assist NRCS staff, State Historic Preservation Officers (SHPOs), Tribal Historic Preservation Officers (THPOs), Indian tribes, Native Hawaiian organizations (NHOs), applicants, local governments, and other preservation stakeholders understand how the PPA was developed and how it will be implemented.
1. What is a PPA and why was the NRCS PPA developed?
A PPA is a type of program alternative that assists a federal agency in its efforts to comply with the requirements of Section 106 of the National Historic Preservation Act (NHPA) and its implementing regulations, "Protection of Historic Properties" (36 CFR Part 800). The PPA is intended to be a template or model to suggest a consistent approach to Section 106 review. Once a PPA has been designated by the ACHP, agencies may proceed to develop and execute it with the relevant SHPOs/THPOs, and/or Indian tribes and NHOs and other relevant consulting parties without the participation of the ACHP. Please visit the following link for more information: http://www.achp.gov/docs/guidance_prototype_agreements.pdf.
The NRCS PPA provides for greater predictability in costs, time, and outcomes, as well as the flexibility to address specific situations and conditions. It creates a consistent approach for Section 106 reviews for projects occurring across the nation. The PPA allows the NRCS, through the development of state-based prototype agreements, to expedite the review of the majority of routine activities that have limited potential to affect historic properties; provide predictability in the consideration of effects to historic properties; and ensure flexibility and responsiveness to state and tribal concerns.
2. What impact will the designation of the NRCS PPA have on the NRCS nationwide Programmatic Agreement?
This PPA replaces the 2002 nationwide "Programmatic Agreement among the United States Department of Agriculture Natural Resources Conservation Service, the Advisory Council on Historic Preservation, and the National Conference of State Historic Preservation Officers relative to Conservation Assistance," as amended in 2011 and 2012, which expired on November 20, 2014. Existing State Level Agreements with SHPOs and Consultation Protocols with Indian tribes, THPOs, or NHOs developed pursuant to the 2002 amended nationwide Programmatic Agreement were voided upon expiration of the nationwide Programmatic Agreement.
3. Will NRCS be responsible for initiating consultation to develop the NRCS state-based prototype agreements?
Yes, NRCS will be responsible for initiating consultation with SHPOs, THPOs, Indian tribes, NHOs, applicants, and other interested parties to develop the state-based prototype agreements.
4. What will occur if the SHPO or THPO does not want to enter into a state-based prototype agreement?
Adoption of a PPA by a state is voluntary. That is, states may elect to implement the PPA or comply with the Section 106 regulations, 36 CFR Part 800. While the PPA offers a number of efficiencies to NRCS, SHPOs, and THPOs, if the required signatories in a given state choose not to adopt the PPA, NRCS must fulfill its Section 106 responsibilities for its individual undertakings through compliance with the requirements of 36 CFR Part 800.
5. Can the state-based prototype agreement be modified to address unique circumstances in a state?
Yes, provisions within the PPA may be modified to allow states to focus on specific concerns and improve the management of effects to historic properties. When modifying the PPA at the state level, NRCS, SHPOs, THPOs, tribes, and NHOs should focus only on modifications that would further tailor historic preservation reviews to unique circumstances within a specific state. These areas include: timeframes and communication methods, the roles and responsibilities of the PPA's signatories, references to applicable local and state laws, and the list of undertakings with little or no potential to affect historic properties, thus, requiring no further Section 106 consultation with the relevant SHPO/Indian tribe/NHO.
6. What role will the ACHP have in negotiating state-based prototype agreements?
Because NRCS and the ACHP have agreed upon the language in the PPA, the ACHP will not typically be a part of the negotiation process to develop each state-based prototype agreement. However, should NRCS, the SHPO, THPO, and/or Indian tribe(s) or NHO request the ACHP to participate in consultation to address procedural or policy issues, high profile projects, effects on unique resources, or disagreements regarding the implementation of the PPA's stipulations, the ACHP may consider joining the consultation. Once a state-based prototype agreement is executed, the NRCS State Conservationist will file a copy with the ACHP.
7. Are there circumstances where an undertaking would follow the review process in 36 CFR Part 800 and not adhere to the terms of the state-based prototype agreement?
Where a NRCS state office has not developed a state-based prototype agreement with the SHPO, THPO, Indian tribe, or NHO, NRCS will comply with 36 CFR Part 800 for each individual undertaking. Where a state-based prototype agreement has been properly executed, and the NRCS, through consultation under its terms, determines that a proposed undertaking would adversely affect a historic property, NRCS shall comply with 36 CFR § 800.6 to resolve the adverse effects.
8. Can the state-based prototype agreement cover emergency situations?
Yes, the PPA includes stipulations that allow each state to either develop state-specific procedures to respond to emergency situations, or follow the recently approved guidelines for Unified Federal Review issued by the Department of Homeland Security, Federal Emergency Management Service, the Council on Environmental Quality, and the ACHP in July 2014, or the procedures in 36 CFR § 800.12(b).
9. How will other consulting parties and the public be involved in the development of the state-based prototype agreement and in individual undertakings covered under the terms of the agreement?
The NRCS State Conservationist will ensure other interested parties, including applicants for NRCS assistance, and the public are informed and involved in the development of each state-based prototype agreement. When NRCS conducts individual Section 106 reviews for undertakings under a state-based prototype agreement, it shall identify and invite as appropriate other agencies, organizations, applicants, and individuals to participate as consulting parties. NRCS will also notify the public of proposed undertakings in a manner that reflects the nature, complexity, and significance of historic properties likely affected by the undertaking.
10. What is the role of the ACHP once a state-based agreement has been executed?
All executed PPAs must be filed with the ACHP prior to their use. This will enable the ACHP to monitor the effectiveness of the PPA and engage NRCS in future discussions regarding any necessary changes or additions to the PPA based on patterns and trends. Should NRCS determine through consultation under a state-based prototype agreement that a specific undertaking may adversely affect a historic property, NRCS is required to notify the ACHP in accordance with 36 CFR § 800.6. Pursuant to the terms of the PPA, the ACHP may also participate in dispute resolution, emergency response situations, and post-review discoveries, as appropriate. The ACHP will review the PPA annual report and monitor successes and challenges in project outcomes. The NRCS State Conservationist, SHPO, THPO, Indian tribes, or NHO may request that the ACHP participate in any annual meeting or agreement review.
Last updated: November 22, 2014