Advisory Council on Historic Preservation

Agency Commitments and Consequences

Once a Section 106 agreement is executed and filed with the ACHP, the federal agency (and/or applicant) is able to implement the undertaking and it may now approve the expenditure of federal funds on the undertaking or issue a license or permit for the undertaking. Pursuant to Section 110(l) of the NHPA, and 36 CFR § 800.6(c), an executed and implemented MOA or project PA evidences the agency official's compliance with Section 106 and governs the undertaking and all of its parts.

An MOA or PA is a legally binding document that commits an agency both by statute and by federal regulation to carry out the undertaking in accordance with the terms of the agreement in satisfaction of its responsibilities under Section 106. The MOA or PA serves three main purposes: (1) to specify the alternatives or mitigation agreed to by the signatories; (2) to identify who is responsible for carrying out the specified measures; and (3) to serve, along with its implementation, as evidence of the agency's compliance with Section 106 of the NHPA.

Preparing complete Section 106 agreement documents is critical because even the very best consultation effort can be undermined if agreed-upon actions are not recorded clearly and accurately in the stipulations section. The Section 106 agreement document should be straightforward and concise and use plain language wherever possible. A cold reader should be able to understand when, how, and by whom the stipulations will be implemented.

Who Prepares the MOA or PA?

The federal agency is responsible for preparing the MOA or PA. Because an MOA or PA sets out how a federal agency will address the adverse effects to historic properties caused by its undertaking, it is important that their professional staff or cultural resource management (CRM) contractors take responsibility for drafting agreement documents while engaging the consulting parties throughout consultation. SHPOs and THPOs often assist the agency in making sure the correct language is used and all necessary provisions are in the agreement.

Successful consultation adheres to the proper sequence of steps in the Section 106 review process. Keep in mind that the Section 106 process begins with a broad range of possibilities that are refined through consultation to reach a focused resolution. One step builds on another. If a step is taken out of sequence or skipped altogether, it is likely that the agency will have to go back and fulfill that missed responsibility (e.g., to determine the Area of Potential Effects (APE) or identify historic properties or consult about eligibility).

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

Welcome to the Advisory Council on Historic Preservation's (ACHP) Guidance on Section 106 agreement documents. Section 106 agreement documents play a critical role in documenting a federal agency's commitment to carry out and conclude their responsibilities under Section 106 of the National Historic Preservation Act (NHPA) (54 U.S.C. § 306108). This guidance is provided to assist federal agencies, states, Indian tribes, Native Hawaiian organizations, applicants, local governments, consulting parties, and the public in developing, implementing, and concluding such agreements.