If an undertaking will or may adversely affect historic properties (any prehistoric or historic district, site, building, structure, or object included in or eligible for inclusion in the National Register of Historic Places), the Section 106 regulations at 36 CFR § 800.6(b)(1)(i-iv) call for the federal agency to consult with the State and/or Tribal Historic Preservation Officer (SHPO, THPO) and other parties to negotiate and execute a Section 106 agreement document that sets out the measures the federal agency will implement to resolve those adverse effects through avoidance, minimization, or mitigation. This guide is meant to help the reader in that task.
MOA or PA?
MOAs are appropriate to record the agreed upon resolution for a specific undertaking with a defined beginning and conclusion, where adverse effects are understood. PAs, on the other hand, are appropriate for multiple or complex federal undertakings where 1) effects to historic properties cannot be fully determined in advance, 2) for federal agency programs, 3) for routine management activities by an agency, or 4) to tailor the standard Section 106 process to better fit in with agency management or decision making.
PAs generally fall into two types: "project PAs" and "program PAs." There are occasions where completing the Section 106 process prior to making a final decision on a particular undertaking is not practical. The regulations allow an agency to pursue a "project PA" (36 CFR § 800.14(b)(3)), rather than an MOA under certain circumstances. The most common situation where a project PA may be appropriate is when, prior to approving the undertaking, the federal agency cannot fully determine how a particular undertaking may affect historic properties or the location of historic properties and their significance and character. For instance, the agency may be required by law to make a final decision on an undertaking within a timeframe that simply cannot accommodate the standard Section 106 process, particularly when the undertaking's area of potential effects encompasses large areas of land or when the undertaking may consist of multiple activities that could adversely affect historic properties.
A federal agency may also pursue a "program PA" (36 CFR § 800.14(b)(2)) when it wants to create a Section 106 process that differs from the standard review process and that will apply to all undertakings under a particular program. Reasons justifying program PAs include having a program that has undertakings with similar or repetitive effects on historic properties to avoid the need for a separate Section 106 review for each project (e.g., Community Development Block Grant agreements), or that relies on delegating major decision making responsibilities to non-federal parties (e.g., Federal Highway Administration delegation of certain Section 106 responsibilities to state departments of transportation). The ACHP has helped develop numerous program PAs for routine management of real property, land, and historic properties at federal facilities like military installations, national forests, national energy laboratories, and National Aeronautics and Space Administration centers.
Federal agencies should consider the views of consulting parties in deciding whether an MOA or PA is the appropriate Section 106 agreement. In addition to carefully considering the views of the SHPO for undertakings off tribal lands, it is important that the agency also consider the views of Indian tribes and Native Hawaiian organizations (NHO) regarding the development of any agreement that has implications for the treatment of historic properties of religious and cultural significance to them, on or off tribal lands. The agency should coordinate early with interested Indian tribes and NHOs in the development of such an agreement. Tribes and NHOs should have an opportunity to share their views on whether a programmatic approach allows for meaningful ongoing consultation and to participate in the drafting of consultation provisions in PAs. The consulting parties can also seek guidance at any point from ACHP staff about which kind of agreement document (MOA or PA) is most appropriate to any situation. Please refer to the discussion later in this guide regarding the roles of consulting parties in a Section 106 agreement as signatories, invited signatories, and concurring parties.
It is important to know which kind of PA you are picking and explain this choice to consulting parties. If there is a failure to reach agreement on the terms of the PA, the final resolution of the Section 106 process will likely differ depending on whether the agency is pursuing a project PA or a program PA.
Is It Time to Draft a Section 106 Agreement?
Before developing an MOA, the federal agency should make sure that it has, in accordance with the regulations, determined the undertaking's area of potential effects, made a reasonable and good faith effort to identify historic properties within the area of potential effects, determined how the undertaking may adversely affect those historic properties, and notified the ACHP of the adverse effect finding.
For many programs of the Department of Housing and Urban Development (HUD), the state or unit of general local government acts as the federal agency in carrying out Section 106. In that case, the "Responsible Entity" acts as the federal agency for purposes of Section 106.
Well before the agency begins drafting an agreement document, it should convene one or more consulting party meetings to assist it in reaching these conclusions and addressing how the undertaking may adversely affect the characteristics of historic properties. Consulting parties must include State Historic Preservation Officers (off tribal lands or on tribal lands where there is no Tribal Historic Preservation Officer designated), and/or Tribal Historic Preservation Officers or Indian tribes (on tribal lands), and can include the ACHP, Indian tribes, Native Hawaiian organizations, grantees, permittees or licensees, preservation organizations, local governments, the National Park Service (NPS), and others (see 36 CFR § 800.2 for a complete description of consulting parties and their roles under the Section 106 regulations).
The federal agency should start the negotiation process with an open mind. Showing up at the first meeting to resolve adverse effects with the first draft of an MOA sends the wrong signal; even if the intention was to help the parties focus on the issues to keep the process moving forward, it gives the appearance that the federal agency has already made up its mind about how to address the undertaking's adverse effects and that the agency is not interested in any ideas or solutions others may bring to the table.
Even if the agency has a complex undertaking or multiple undertakings that will be addressed through a project PA, the drafting should not begin until well after the federal agency has first identified all consulting parties and ensured they are knowledgeable about the range and scope of activities the undertaking will encompass, the range of historic properties currently known and what may still be present within the APE, and how each could be affected. Providing this context so that the consulting parties have a broad understanding of the undertaking will better allow them to provide the agency with sound and relevant advice about how to resolve adverse effects in the public interest.
If you intend to develop a program PA, before meeting consulting parties for the first time the federal agency should do the following:
- Be ready to clearly and concisely explain its program and its Section 106 challenges to the consulting parties. No consulting party knows the ins and outs of all federal programs. Some, like a SHPO, may know some details but others may not.
- Have a clear idea about why a program PA would be desirable. What are its benefits? The federal agency should be able to articulate why the standard Section 106 process is not the most effective fit for its program or a specific undertaking. For example, the agency's program may have mandatory timeframes that cannot accommodate the regular Section 106 process. It may be that complying with the normal Section 106 process for a large number of similar permits, licenses, approvals, or grant decisions would overwhelm agency staff or other resources and create redundant busywork. Whatever the challenges involved, be ready to explain the challenge and the program PA solution in plain language to the consulting parties.
- Write a draft outline or flow chart of how your desired consultation process would work, showing how the basic aims of the Section106 process--identification of historic properties and resolution of adverse effects to them through consultation--are being met with the proposed process. Such an outline will help you better define the challenges the agency will need to address and reasonable ways to deal with them.
Finally, regardless of what kind of agreement the federal agency intends to develop to resolve adverse effects (MOA or project PA), it is a good idea to once again consider whether there still are reasonable ways to avoid adverse effects altogether; and if not, whether there still are practicable measures that could minimize the adverse effects. Of course, sometimes the legitimate purpose and need of a project may be such that avoidance is impossible or impractical. Even so, it is a good idea to go through the exercise of considering avoidance.
Section 106 Agreements are Legally Binding
When a federal agency has determined that the undertaking may adversely affect historic properties or they have determined the need to develop a programmatic approach to Section 106 compliance, it evidences the completion of its Section 106 obligations to "take into account the effects of their undertaking on historic properties" and provide the ACHP a "reasonable opportunity" to comment by executing and implementing an agreement document (MOA or PA). In the rare case where the consulting parties cannot reach agreement, a required signatory may terminate consultation and request formal comments from the ACHP (see 36 CFR § 800.7).
When the Section 106 process concludes with an executed MOA or PA (either a project or program PA), such an agreement is legally binding on the agency per Section 110(l) of the NHPA (54 U.S.C. § 306114). Such agreements "shall govern the undertaking and all its parts." As such, they must be written carefully and clearly so that everyone understands what they call for and the agency is able to fully carry out all legal obligations to which it has agreed.
Other Agreements and Ways to Comply with Section 106
Substitution of NEPA for Section 106
The Section 106 regulations provide for a federal agency to formally substitute its National Environmental Policy Act (NEPA) review process to comply with Section 106 (see 36 CFR § 800.8(c)). If during the preparation of an Environmental Impact Statement (EIS), the agency finds that the proposed undertaking may adversely affect historic properties, the agency may choose either to record its commitments to resolve adverse effects to historic properties through an MOA or PA, or incorporate a description of its binding commitment to measures to avoid, minimize, or mitigate adverse effects to historic properties in the Record of Decision (ROD). In the latter case, the agency would not need to develop a separate MOA or PA to conclude the Section 106 process: the terms in the ROD would constitute a legally binding commitment just like an MOA or PA. Note that where an agency is using the NEPA process for Section 106 purposes and is preparing an Environmental Assessment (EA), the agency would need to execute a separate MOA or PA to resolve any adverse effects and conclude the Section 106 process. Read the NEPA/NHPA Section 106 Handbook.
Consultation Protocol Agreements
There is one additional type of agreement mentioned in the Section 106 regulations, at 36 CFR § 800.2(c)(2)(ii)(E). A consultation protocol is an agreement developed between the federal agency and one or more federally recognized Indian tribes or Native Hawaiian organizations (NHOs) that conditions the manner in which the agency consults with that Indian tribe or NHO for one, many, or all of its projects or programs. They are negotiated strictly between the agency and the tribe or NHO and can include provisions for confidentiality and other specific tribal or NHO concerns. The parties need only file a copy with the appropriate SHPO(s) and the ACHP; no other parties need to be involved in their negotiation. Such agreements can also go beyond the requirements of the standard Section 106 process and condition other aspects of the agency/tribal/NHO relationship (e.g., who is the point of contact, what kinds of undertakings the tribe or NHO would like to participate in consultation for, etc.). The protocol cannot, however, change or condition the role of other Section 106 participants (e.g., the SHPO, ACHP, etc.) without their consent. For more information, see the ACHP's Handbooks on consultation with Indian tribes and Native Hawaiian organizations.