THE FOUR STEP SECTION 106 PROCESS: STEP FOUR TENNESSEE STATE HISTORIC PRESERVATION OFFICE REVIEW AND COMPLIANCE SECTION

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THE FOUR STEP SECTION 106 PROCESS STEP
FOURTENNESSEE STATE HISTORIC PRESERVATION
OFFICEREVIEW AND COMPLIANCE SECTION
All reproduction rights reserved
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What follows is a presentation text in PowerPoint
format. It is being presented that way because
the staff of the Tennessee State Historic
Preservation Offices Review and Compliance
Section believes you will be able to absorb more
of the message of the presentation in this format
than if it were presented as a printed text. As
such, this presentation lacks much of the punch
of a normal PowerPoint presentation. But since
we are not there to narrate all the needed
information for you, this is the best way to
transmit the information you need to complete
Section 106 review swiftly and successfully.
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INTRODUCTION
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In the event of an adverse effect determination,
the Federal agency should (800.6(a)),
(800.6(a)(4), 800.6(a)(5) and 800.11(c))      co
ntinue consultation with the State Historic
Preservation Office and all other Consulting
Parties.      develop, assess, and evaluate
alternatives or modifications to the undertaking
that will avoid or minimize the adverse
effect           seek the views of the public in
resolving the adverse effect
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Resolve Adverse Effect
Step Four
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Questions You Should Answer Before Beginning
Consultation
Step Four
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How Do You
resolve project related adverse effects?
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Resolve Adverse Effect 36 CFR 800.6
The agency official shall consult with the
Tennessee SHPO and other consulting parties,
including Indian tribes to DEVELOP AND EVALUATE
ALTERNATIVES OR MODIFICATIONS TO THE UNDERTAKING
that could AVOID, MINIMIZE, OR MITIGATE adverse
effects on historic properties.
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Tennessee State Historic Preservation Office
policy strongly emphasizes a good faith attempt
on the part of the Federal agency to avoid or
minimize adverse effect. It does so for a number
of reasons.           Because it is charged by
the legislatures and executive branches of the
State of Tennessee with the responsibility of
protecting Historic Properties located within the
state           Because the National Historic
Preservation Act under whose authority State
Historic Preservation Offices consult with
Federal agencies was made a Federal law with the
express purpose of reducing the number and size
of Federal project adverse impacts upon Historic
Properties in the United States  
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          Because, in those cases where the
resource is significant because of its cultural
or religious value to Native Americans, the most
appropriate course of action is protective
avoidance of the resource           Because, in
so many instances, avoidance of adverse effect to
Historic Properties proves to be both prudent and
feasible once a Federal agency sets its mind to
pursuing such a course of action          
Because, in so many instances, the Federal agency
comes to understand after re-evaluating the
undertakings purpose and need that its adversely
affecting undertaking really has no true
programmatic or public interest imperative
associated with the agencys mission and
therefore the agency abandons the undertaking
altogether
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WHAT IS GOOD FAITH EVALUATION OF ALTERNATIVES?
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DUE DILIGENCE
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Resolve Adverse Effect Learning From NEPA, Sec.
1502.14 Alternatives Including the Proposed
Action.
(a) Rigorously explore and objectively evaluate
all reasonable alternatives to the preferred,
impactful alternative, and for alternatives which
were eliminated from detailed study, briefly
discuss the reasons for their having been
eliminated.
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Resolve Adverse Effect Learning From NEPA, Sec.
1502.14 Alternatives Including the Proposed
Action.
(b) Devote substantial treatment to each
alternative considered in detail including the
proposed action so that Consulting Parties may
evaluate their comparative merits.
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Resolve Adverse Effect Learning From NEPA, Sec.
1502.14 Alternatives Including the Proposed
Action.
(d) Include the alternative of no action.
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Resolve Adverse Effect Learning From NEPA, Sec.
1502.14 Alternatives Including the Proposed
Action.
(e) Clearly Identify the agency's preferred
alternative.
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When evaluating historic building adverse effect
alternatives, you should keep in mind that the
Advisory Board on National Parks, Historic Sites,
Buildings, and Monuments declared in 1936, "It is
well to bear in mind the saying Better preserve
than repair, better repair than restore, better
restore than reconstruct.'" As a corollary it
noted, "It is ordinarily better to retain genuine
old work of several periods, rather than
arbitrarily to restore' the whole, by new work,
to its aspect at a single period."
Internationally accepted historic preservation
standards continue to stress the protection and
perpetuation of authentic surviving
resources.   NPS-28 CULTURAL RESOURCE
MANAGEMENT GUIDELINE
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SECTION 106 CHECKLIST
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Questions

• Can the adverse effect be avoided?

Yes_________ No_________
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How?
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Successful Risk Management
Avoid the risk altogether by avoiding the adverse
effect.
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Questions

• Can the adverse effect be minimized?

Yes_________ No_________
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How?
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Successful Risk Management
Reduce the negative effect of the risk by
minimizing the effect.
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Questions

• Can the adverse effect be mitigated?

Yes_________ No_________
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How?
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Successful Risk Management
Accept some or all of the consequences of the
risk by mitigating the effect.
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CONTINUE CONSULTATION WITH THE SHPO AND OTHER
CONSULTING PARTIES
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Consultation

• A. Continue Consultation
•  
• In the event of an adverse effect determination,
  you should (800.6(a)), (800.6(a)(4), 800.6(a)(5)
  and 800.11(c))

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• continue consultation with the Tennessee State
  Historic Preservation Office

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NOTIFY THE ACHP
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Notification

• (1) If, and as soon as you have made an adverse
  effect determination, (800.6(a)(i)(a,b,c,))
  notify the ACHP and determine whether it wishes
  to participate in the consultation.

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What Happens If an Agency Fails to Notify ACHP of
an Adverse Effect?
Notice to ACHP at this stage is extremely
important, as it provides the basis for ACHP to
decide whether it wishes to enter the
consultation process. Failure of an agency to do
this is a serious procedural flaw, as it denies
ACHP the opportunity to join at the outset the
consultation to resolve adverse effects.
Advisory Council on Historic Preservation
working with Section 106 Users Guide, Section
106 Section-by-Section Questions and Answers
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What Happens If an Agency Fails to Notify ACHP of
an Adverse Effect?
Failure of an agency to notify the Council also
violates the requirement of Section 106 that the
agency must afford the ACHP a reasonable
opportunity to comment on its determinations and
findings.
Advisory Council on Historic Preservation
working with Section 106 Users Guide, Section
106 Section-by-Section Questions and Answers
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INVOLVE CONSULTING PARTIES
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Consultation
    (2) Involve consulting parties. In addition
to the consulting parties identified under Sec.
800.3(f), the agency official, the Tennessee SHPO
and the ACHP, if participating, may agree to
invite other individuals or organizations to
become consulting parties. The agency official
shall invite any individual or organization that
will assume a specific role or responsibility in
a Memorandum of Agreement to participate as a
consulting party
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PROVIDE DOCUMENTATION
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    (3) Provide documentation. The agency
official shall provide to all consulting parties
the documentation specified in Sec. 800.11(e),
subject to the confidentiality provisions of Sec.
800.11(c), and such other documentation as may be
developed during the consultation to resolve
adverse effects.
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INVOLVE THE PUBLIC
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Consultation
    (4) Involve the public. The agency official
shall make information available to the public,
including the documentation specified in Sec.
800.11(e), subject to the confidentiality
provisions of Sec. 800.11(c). The agency official
shall provide an opportunity for members of the
public to express their views on resolving
adverse effects of the undertaking.
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Consultation
The agency official should use appropriate
mechanisms, taking into account the magnitude of
the undertaking and the nature of its effects
upon historic properties, the likely effects on
historic properties, and the relationship of the
Federal involvement to the undertaking to ensure
that the public's views are considered in the
consultation.
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Consultation
The agency official should also consider the
extent of notice and information concerning
historic preservation issues afforded the public
at earlier steps in the Section 106 process to
determine the appropriate level of public
involvement when resolving adverse effects so
that the standards of Sec. 800.2(d) are met.
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RESTRICTIONS ON DISCLOSURE OF INFORMATION
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Consultation
    (5) Restrictions on disclosure of
information. Section 304 of the act and other
authorities may limit the disclosure of
information under paragraphs (a)(3) and (a)(4) of
this Section. If an Indian tribe or Native
Hawaiian organization objects to the disclosure
of information or if the agency official believes
that there are other reasons to withhold
information, the agency official shall comply
with Sec. 800.11(c) regarding the disclosure of
such information
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RESOLVE ADVERSE EFFECTS
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HOW DO YOU RESOLVE ADVERSE EFFECTS?
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B. Resolve adverse effects.     (i) The agency
official shall consult with the Tennessee SHPO
and other consulting parties to seek ways to
avoid, minimize or mitigate the adverse effects.
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Questions

• Develop, assess, and evaluate alternatives or
  modifications to the undertaking that will avoid
  or minimize the adverse effect in consultation
  with the Tennessee SHPO and other Consulting
  Parties
•  
• Yes_________ No_________

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HOW MIGHT YOU AVOID OR MINIMIZE ADVERSE EFFECTS?
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YOU USE DUE DILIGENCE TO EXPLORE PRUDENT AND
FEASIBLE ALTERNATIVES
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Alternatives or Modifications
Defining prudent and feasible
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prudent and feasible

• To be prudent, you must
• use good judgment
• consider the likely consequences of various
  alternatives
• consider the possibility that an alternative may
  shift the projects adverse effects from one set
  of historic properties to another

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prudent and feasible

• Prudent means to
• demonstrate shrewdness and thought for the future
• avoid potential risks and uncertainties

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prudent and feasible

• To be feasible, something must be
• technically possible
• capable of actually being achieved or put into
  effect
• practical and suitable with respect to
  engineering and budget

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prudent and feasible
Alternatives must meet the basic need and use
requirements of the federal program. They must
be doable given contemporary construction best
practices and expense.
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prudent and feasible
Alternatives are credible if they are viable,
that is, they must be able to be done and also
they most be worth doing able to live
successfully on their own without any artificial
supports or props
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prudent and feasible
Prudent and feasible refers to the viability of
an alternative that avoids the adverse effect to
an Historic Property. The term "feasible" refers
to the constructibility of a project whether or
not it can be built using current construction
methods technologies and practices. The term
"prudent" refers to how reasonable the
alternative is in essence, whether or not it
makes sense.
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prudent and feasible

• Given a range of options, a Federal agency must
  select an avoidance alternative if it is feasible
  and prudent. By contrast, the Federal agency may
  reject an alternative if it is not feasible and
  prudent. An alternative may be considered not
  feasible and prudent for any of the following
  reasons
• It does not meet the projects purpose and need
• It entails an excessive cost of construction
• It creates severe operational or safety problems
• It generates an unacceptable impact (social,
  economic or environmental)
• It causes serious community disruption
• It results in a combination of any of the above

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prudent and feasible
Consulting Parties and Agency Officials should
keep these facts in mind when they review and
comment upon proposed alternatives. Any
alternative that is not prudent, feasible, and
credible as herein defined should not be
considered by the Agency Official or the
Consulting Parties.
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Federal agencies must develop, assess, and
evaluate alternatives or modifications in
consultation with the Tennessee SHPO and other
Consulting Parties.
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HOW MIGHT YOU AVOID ADVERSE EFFECTS?
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Avoid

• Ways to avoid adverse effects.
• Cancel the project (No Build Alternative).

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Avoid

• Ways to avoid adverse effects.
• Move the project Area of Potential Effects beyond
  the boundary of the Historic Property.

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Avoid

• Ways to avoid adverse effects.
• Dont disturb the ground where National Register
  eligible archaeological sites are located.

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Avoid

• Ways to avoid adverse effects.
• Dont demolish the Historic Property or modify it
  inappropriately.

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Avoid

• Ways to avoid adverse effects.
• Dont make incompatible additions to the Historic
  Property.

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Avoid

• Ways to avoid adverse effects.
• Dont rehabilitate the Historic Property while
  ignoring the secretarys standards.

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Avoid

• Ways to avoid adverse effects.
• Dont introduce out of character elements into
  the setting of the Historic Property.

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Avoid

• Ways to avoid adverse effects.
• Dont neglect the Historic Property, causing it
  to lose integrity.

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Avoid

• Ways to avoid adverse effects.
• Dont abandon, sell or lease the Historic
  Property out of Federal ownership.

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HOW MIGHT YOU MINIMIZE ADVERSE EFFECTS?
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Minimize

• Ways to minimize adverse effects.
• Make the project smaller.

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Minimize

• Ways to minimize adverse effects.
• Screen the project from the Historic Property.

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Minimize

• Ways to minimize adverse effects.
• Convey the property out of Federal ownership with
  a protective covenant.

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Minimize

• Ways to minimize adverse effects.
• Rehabilitate the Historic Property in accord with
  the Secretary of the Interiors Standards.

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Minimize

• Ways to minimize adverse effects.
• Preserve the National Register eligible
  archaeological site in place with appropriate
  protections.

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Questions

• Did you consult with the Tennessee SHPO and other
  Consulting Parties in resolving the adverse
  effect by exploring alternatives that avoid or
  minimize project related effects?
•  
• Yes_________ No_________

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Questions

• Did you seek the views of the public in resolving
  the adverse effect?
•  
• Yes_________ No_________

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Questions

• Did you find consensus with the Tennessee SHPO
  and other consulting parties to avoid or minimize
  adverse effects?
•  
• Yes_________ No_________

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Questions

• If Yes, you have either a No Adverse Effect or
  Conditional No Adverse Effect finding, and you
  have successfully completed Section 106 review.

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Questions

• If No, you must draft an agreement document to
  mitigate adverse effects.

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HOW MIGHT YOU MITIGATE ADVERSE EFFECTS?
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EXPLORE POSSIBLE MITIGATIVE ALTERNATIVES ONLY
AFTER EXPLORING AND REJECTING ALL AVOIDENCE AND
MINIMIZATION ALTERNATIVES
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    (ii) The agency official may use standard
treatments established by the ACHP under 36 CFR
800.14(d) as a basis for a Memorandum of
Agreement
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for example
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The ACHP, on its own initiative or at the request
of a consulting party, may establish standard
methods for the treatment of a category of
historic properties, a category of undertakings,
or a category of effects on historic properties
to assist Federal agencies in satisfying the
requirements of 36 CFR 800 subpart B.
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Much more likely is Federal Agency/Tennessee SHPO
consensus on a specific set of mitigative
stipulations
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    (iv) If the agency official and the Tennessee
SHPO agree on how the adverse effects will be
resolved, they shall execute a MEMORANDUM OF
AGREEMENT. The agency official must submit a copy
of the executed memorandum of agreement, along
with the documentation specified in Sec.
800.11(f), to the ACHP prior to approving the
undertaking in order to meet the requirements of
Section 106 and 36 CFR 800.6.
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MEMORANDUM OF AGREEMENT
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HOW DO YOU PREPARE A MEMORANDUM OF AGREEMENT?
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When all else fails The Agency Official may be
compelled to mitigate project-related adverse
effect to Historic Properties with a Memorandum
of Agreement.
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A Memorandum of Agreement is Successful Risk
Management, by accepting some or all of the
consequences of a particular risk.

• In rare cases where adverse effect cannot be
  avoided or minimized, the Agency Official will
  draft an appropriate Agreement Document
  (800.6(c)(1), 800.7(a)(2), 800.7(a)(3) and
  800.2(c)(3)(iv)).

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BE MINDFUL OF CERTAIN ISSUES RELATING TO MOAS
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Issues Relating to MOAs
Federal agency officials are very reluctant to
acknowledge the possibility that any undertaking
over which they have responsibility would
adversely affect any cultural resource. This
is true because any such acknowledgment would
normally necessitate the preparation of an
Environmental Impact Statement (EIS) rather than
the simpler and much preferred Environmental
Assessment that is usually the terminal NEPA
environmental document record or even a
categorical exclusion. An adverse effect within
Section 106 terms precipitates consultation, but
an adverse effect determination within NEPA terms
often precipitates an EIS.
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Issues Relating to MOAs
Federal agencies are reluctant to initiate the
drafting of MOAs and PAs, preferring that
either SHPO or the ACHP draft the agreement
document for them. This reluctance is the
product of the simple principle in American
common law that the drafter of any contract bears
the onus for any deficiencies in the document.
Therefore, agency officials will attempt to pass
off their regulatory responsibilities for
drafting agreement documents to SHPOs and the
ACHP, claiming that since these agencies deal
with Section 106 procedural issues daily, they
have the greater expertise. Be wary when an
agency requests that the SHPO draft the agreement
document. Remind them that it is the agencys
responsibility.
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Issues Relating to MOAs
Federal agencies often mistake technical
assistance from the SHPO during the planning
phase of an undertaking with Step Three
Consultation under Section 106 review procedures.
Agencies assume that if the SHPO has been
afforded an opportunity to comment while the
undertakings planning document is in draft, that
Section 106 review has been satisfied. SHPOs
should preface any comments on federal agency
planning documents with a caveat that if the
plans near actualization, then the agency will
have to seek further SHPO review and comment that
may result in an adverse effect finding.
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Issues Relating to MOAs
Federal agencies tend to over-emphasize
protection of natural resources and de-emphasize
protection o cultural resources. This is true
because of the simple fact that agency staff are
subject to severe legal sanctions if they neglect
of purposefully harm natural resources and they
are not subject to any penalties for neglecting
or purposefully harming cultural resources.
SHPOs must blend moral suasion with good old
fashioned jawboning and assist the Agency
Official with the preparation of MOA stipulations
that right the balance.
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Issues Relating to MOAs
Federal agencies tend to feel that their internal
environmental procedure regulations supersede 36
CFR Part 800. This seems especially true then
such regulations have not been certified by the
ACHP as counterpart regulations. Agency
environmental review staffs tend to dig in their
heels when their regulations contradict 36 CFR
Part 800 procedures or definitions. This state
of affairs waxes and wanes depending upon the
current policies of the national office. SHPOs
must know and be ready to defend all of the
nuances of 36 CFR Part 800.6 against any agency
encroachments based upon their own mitigation
regulations.
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Issues Relating to MOAs
In matters of mitigation of adverse effect,
Federal agencies tend to shun innovative
solutions for the tried and true. While this
is pretty much a natural human trait, agency
officials are especially prone to it because of
pressures from their policy leaders and offices
of general council not to do anything different
or precedent-setting. Therefore, SHPOs must be
willing both to explore and to precipitate
discussions of novel ways to prepare MOA
stipulations.
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PREPARING A MEMORANDUM OF AGREEMENT
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Memorandum of Agreement
800.6(b)(1) When resolving adverse effects
without the Council, the Agency Official consults
with the SHPO/THPO and other consulting parties
to develop a Memorandum of Agreement. If this is
achieved, the agreement is executed between the
Agency Official and the Tennessee SHPO and filed
with required documentation with the ACHP. This
filing is the formal conclusion of the Section
106 process and must occur before the undertaking
is approved. Standard treatments adopted by the
ACHP may set expedited ways for competing
memoranda of agreement in certain circumstances.
Advisory Council on Historic Preservation
Working With Section 106 Users Guide
102
Memorandum of Agreement
800.6(b)(2) When the ACHP is involved, the
consultation proceeds in the same manner, but the
agreement of the Agency Official, the SHPO/THPO
and the ACHP is required for a Memorandum of
Agreement.
Advisory Council on Historic Preservation
Working With Section 106 Users Guide
103
Memorandum of Agreement
800.6(c) A Memorandum of Agreement evidences an
agencys compliance with Section 106 and the
agency is obligated to follow its terms. Failure
to do so requires the Agency Official to reopen
the Section 106 process and bring it to suitable
closure as prescribed in the regulations. The
reference to Section 110(l) of the Act is
intended to conform the streamlining provisions
of these regulations with current statutory
requirements, pending amendment of that section.
Advisory Council on Historic Preservation
Working With Section 106 Users Guide
104
Memorandum of Agreement
800.6(c)(1) The rights of signatories to an
agreement are spelled out, along with who is
required to sign the agreement under specific
circumstances. The term signatory has a special
meaning as described in this section, which is
the ability to terminate or agree to amend the
Memorandum of Agreement. The term does not
include others who sign the agreement as
concurring parties.
Advisory Council on Historic Preservation
Working With Section 106 Users Guide
105
Memorandum of Agreement
800.6(c)(2) Certain parties may be invited to be
signatories in addition to those specified in
Section 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, they have the
same rights to terminate or amend the MOA as the
other signatories.
Advisory Council on Historic Preservation
Working With Section 106 Users Guide
106
Memorandum of Agreement
800.6(c)(3) Other parties may be invited to
concur in agreements. They do not have the rights
to amend or terminate an MOA. Their signature
simply shows that they are familiar with the
terms of the agreement and do not object to it.
Advisory Council on Historic Preservation
Working With Section 106 Users Guide
107
Memorandum of Agreement
800.6(c)(4)-(9) These sections set forth specific
features of a Memorandum of Agreement and the way
it can be terminated or amended.
Advisory Council on Historic Preservation
Working With Section 106 Users Guide
108
Resolution of Adverse Effect
Memorandum of Agreement
36 CFR 800.16(o) defines a Memorandum of
Agreement as the signed legal document that
records the terms, conditions, and stipulations
agreed upon by the agency official, the State
Historic Preservation Office, and other invited
signatory parties and concurring parties to
resolve the adverse effects of an undertaking
upon historic properties.
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WHO ARE SIGNATIRIES, INVITED SIGNATORIES, AND
CONCURRENCE BY OTHERS?
110
SIGNATORIES
Memorandum of Agreement
c) Memorandum of agreement. A memorandum of
agreement executed and implemented pursuant to
this section evidences the agency official's
compliance with Section 106 and this part and
shall govern the undertaking and all of its
parts. The agency official shall ensure that the
undertaking is carried out in accordance with the
memorandum of agreement.     (1) Signatories.
THE SIGNATORIES HAVE SOLE AUTHORITY TO EXECUTE,
AMEND OR TERMINATE THE AGREEMENT in accordance
with this subpart.     (i) The agency official
and the SHPO/THPO are the signatories to a
memorandum of agreement executed pursuant to
paragraph (b)(1) of this section.     (ii) The
agency official, the SHPO/THPO, and the Council
are the signatories to a memorandum of agreement
executed pursuant to paragraph (b)(2) of this
section.     (iii) The agency official and the
Council are signatories to a memorandum of
agreement executed pursuant to Sec. 800.7(a)(2).
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INVITED SIGNATORIES
Memorandum of Agreement
 (2) Invited signatories.     (i) The agency
official may invite additional parties to be
signatories to a memorandum of agreement. Any
such party that signs the memorandum of agreement
shall have the same rights with regard to seeking
amendment or termination of the memorandum of
agreement as other signatories.     (ii) The
agency official may invite an Indian tribe or
Native Hawaiian organization that attaches
religious and cultural significance to historic
properties located off tribal lands to be a
signatory to a memorandum of agreement concerning
such properties.     (iii) The agency official
should invite any party that assumes a
responsibility under a memorandum of agreement to
be a signatory.     (iv) The refusal of any
party invited to become a signatory to a
memorandum of agreement pursuant to paragraph
(c)(2) of this section does not invalidate the
memorandum of agreement
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CONCURRENCE BY OTHERS
Memorandum of Agreement
    (3) Concurrence by others. The agency
official may invite all consulting parties to
concur in the memorandum of agreement. The
signatories may agree to invite others to concur.
The refusal of any party invited to concur in the
memorandum of agreement does not invalidate the
memorandum of agreement
113
MEMORANDUM OF AGREEMENT WHAT IS THE ORDER OF
PRESENTATION?
114
In the preamble of a Memorandum of Agreement, you
will
115
Questions
WHEREAS

• caption the title that lists the signatories,
  names the undertaking, and references the
  regulation under which the MOA is authorized and
  required.
• Yes_________ No_________

116
EXAMPLE
MEMORANDUM OF AGREEMENT AMONG THE FEDERAL HIGHWAY
ADMINISTRATION THE TENNESSEE DEPARTMENT OF
TRANSPORTATION, THE TENNESSEE HOUSING DEVELOPMENT
AGENCY REPRESENTING THE U. S. DEPARTMENT OF
HOUSING AND URBAN DEVELOPMENT THE TENNESSEE
STATE HISTORIC PRESERVATION OFFICE AND THE
CITY OF NEWPORT HOUSING AUTHORITY FOR THE RHEA
MIMS HOTEL REHABILITATION PURSUANT TO 36 CFR PART
800.6(A)
117
Questions
WHEREAS

• name the undertaking and locate it by county,
  township, or other geographical designation.
• Yes_________ No_________

118
Questions

• identify the current slate of historic properties
  within the projects Area of Potential Effects
•  
• Yes_________ No_________

119
EXAMPLE
WHEREAS the City of Newport Housing Authority
(Authority) has determined to rehabilitate a
property known as the Rhea Mims Hotel located in
Newport, Cocke County Tennessee, a property
listed in the National Register of Historic
Places, and   WHEREAS the Authority has applied
to the Federal Highway Administration (FHwA),
through the Tennessee Department of
Transportation (TDOT) for a grant of 500,000
through the Intermodal Surface Transportation
Efficiency Act program to facilitate the
rehabilitation of the Rhea Mims Hotel, and
120
EXAMPLE
WHEREAS the Authority has applied to the
Tennessee Housing Development Agency (THDA)
representing the U. S. Department of Housing and
Urban Development (HUD) for a grant of
500,000.00 under the HUD HOME program to
facilitate the rehabilitation of the Rhea Mims
Hotel, and
121
EXAMPLE

• acknowledge that the Federal undertaking either
  will or may (phased compliance) have an adverse
  effect upon Historic Properties
•  
• Yes_________ No_________

122
Questions
WHEREAS

• Identify and acknowledge consultation with
  appropriate Consulting Parties and the SHPO/THPO
•  
• Yes_________ No_________

123
EXAMPLE
WHEREAS, the THDA, FHwA, and TDOT have determined
that the rehabilitation of the Rhea Mims Hotel
will have an effect upon this historic property,
and have consulted with the Tennessee Historical
Commission (SHPO) pursuant to 36 CFR Part
800.6(a) regulations implementing Section 106 of
the National Historic Preservation Act (16 U. S.
C. Part 470f) and   WHEREAS the City of
Newport Housing Authority has participated in the
consultation and has been invited to concur in
the Memorandum of Agreement
124
Questions
WHEREAS

• acknowledge past agency or applicant efforts to
  identify, evaluate and treat Historic Properties.
• Yes_________ No_________

125
Questions
NOW, THEREFORE

• Commit the Agency Official to ensure that certain
  stipulations shall be implemented to take into
  account the effects of the undertaking on
  historic properties.
• Yes_________ No_________

126
EXAMPLE
NOW, THEREFORE, the U. S. Department of Housing
and Urban Development, through the Tennessee
Housing Development Agency, and the Federal
Highway Administration through the Tennessee
Department of Transportation, and the Tennessee
State Historic Preservation Officer agree that
the undertaking shall be implemented in
accordance with the following stipulations in
order to take into account the effect of the
undertaking upon historic properties.
127
In the body of a Memorandum of Agreement, you
will
128
Questions

• assign legal and contractual responsibility to
  the Federal agency funding, licensing, or
  permitting the undertaking for ensuring that the
  specified mitigations are carried out even if the
  mitigations are to be carried out by another
  named party (commitment tracking)
•  
• Yes_________ No_________

129
EXAMPLE
The Tennessee Department of Transportation and
the Tennessee Housing Development Agency shall
ensure that the following measures are carried
out
130
Questions

• stipulate a method for mitigating or resolving
  that adverse effect
•  
• Yes_________ No_________

131
EXAMPLE
1. Project Design   TDOT and THDA shall ensure
that the design of the rehabilitation project for
the Rhea Mims Hotel is compatible with the
historic and architectural qualities of the Rhea
Mims Hotel and is consistent with the recommended
approaches to rehabilitation set forth in the
Secretary of the Interiors standards for
Rehabilitation and Guidelines for Rehabilitating
Historic Buildings (U. S. Department of the
Interior, National Park Service, 1983 hereafter
Standards and Guidelines), and that the design
and specifications of the project comport with
the revised floor plans submitted to the
Tennessee SHPO by the Newport Housing Authority
on December 13, 1999.
132
EXAMPLE
  2. Project Documentation   Prior to the
commencement of any demolition work, the Newport
Housing Authority will document photographically
the exterior and interior of the Rhea Mims Hotel
utilizing 35mm black and white film and 3X5
prints mounted on acid free paper and suitably
labeled. One set of this photographic
documentation will be retained at the
administrative offices of the Rhea Mims Hotel,
and another set submitted to the Tennessee SHPO.
133
EXAMPLE
3. Project Mitigation   The Newport Housing
Authority will ensure that the following
mitigative measures are incorporated into the
project plans and specifications and implemented
by the work contractor   Preservation of the
double loaded corridor on the second floor of the
south wing, including four original doors and
transoms plus wood door frames and base molding
(from the existing corridor to tenant rooms 203A,
203B, 204A, and 204B). These doors will remain
in their current position and the dimensions of
the original corridor will be maintained. Based
on Tennessee Fire Code Regulations, it will be
necessary to reconstruct these walls to create a
one-hour fire rated partition.  
134
EXAMPLE
Salvage all interior wood doors and transoms plus
frames and base molding. These materials will be
reconditioned, where possible, and incorporated
as interior doors and woodwork in the new
affordable elderly apartment units.   Salvage all
existing exterior windows and casements, where
possible, and replace destroyed or unsalvageable
sash and frame units with identically configured
units. Where possible, install interior glass
storm panels behind existing double hung window
units to provide additional energy efficiency.
Double pane windows will be specified for
replacement sash.  
135
EXAMPLE
The apartment entrance door and glass window
panels facing out onto the single loaded
corridors, on the first and second floors, will
be designed in a manner to be sympathetic with
existing architectural wood door, and frame trim
details. Fire code regulations require
fire-rated doors and windows. As a result, it
will be apparent to a visitor to the building
that these apartment entrance doors and windows
are not original to the structure.   The boiler
flue rising on the southeast side of the south
wing of the building will be removed because of
its deteriorated structural condition. This
boiler flue cannot be seen from the street and
will not be needed by the new HVAC system in the
building.
136
Questions

• specify a method for monitoring the stipulations
  of an agreement document to ensure that they are
  carried out (commitment tracking)
•  
• Yes_________ No_________

137
EXAMPLE
4. Monitoring and Reporting   The Newport
Housing Authority shall provide the Tennessee
SHPO reasonable access to the project site so
that the Tennessee SHPO may monitor the
implementation of the project and report to the
other parties to this agreement document.
138
Questions

• specify a method for amending and/or terminating
  the agreement document
•  
• Yes_________ No_________

139
EXAMPLE
5. Amendment of the agreement document   Any
party to this agreement document may request that
it be amended, whereupon the parties will consult
in accordance with 36 CFR Part 800.6(c)(7) to
consider such amendment.  
140
EXAMPLE
6. Duration of the agreement document   If any
of the stipulations contained within this
agreement document have not been implemented
within two (2) calendar years after execution of
this agreement document, the parties to this
agreement document shall review this agreement
document to determine whether revisions are
needed. If revisions are needed, the parties to
this agreement document will consult in
accordance with 36 CFR Part 800, Subpart B to
make such revisions.   In the event the Newport
Housing Authority does not carry out the terms of
this agreement document, the Federal Highway
Administration and the U. S. Department of
Housing and Urban Development shall re-open
consultation on this undertaking and comply with
36 CFR Part 800.6 with regard to this
undertaking.
141
Questions

• specify a method for dispute resolution
•  
• Yes_________ No_________

142
EXAMPLE
5. Dispute Resolution   Once the demolition and
construction phases of this project have begun,
should the Tennessee SHPO, or the Tennessee
Department of Transportation, or the Tennessee
Housing Development Agency object to Newport
Housing Authoritys interpretation of any plan
provided for review relative to this project and
pursuant to this agreement document, the Newport
Housing Authority shall consult with the
objecting party to resolve the objection.  
143
EXAMPLE
  If the objecting party and/or the Tennessee
SHPO determines that the objection cannot be
resolved, the Newport Housing Authority shall
forward all documentation relevant to the
dispute, including written comments from the
Tennessee SHPO and the objecting party to the
appropriate federal agency for review and
comment. Within 30 days of receipt of this
documentation, the federal agency will
either   provide the parties to this agreement
document with recommendations which they shall
take into account when reaching a final decision
regarding the dispute or   notify the parties
to this agreement document that the federal
agency will submit appropriate documentation to
the Advisory Council on Historic Preservation.
Within fifteen (15) days of receipt of this
documentation the Council will either provide the
parties to this agreement document with
recommendations which they shall take into
account when reaching a final decision regarding
the dispute or interject itself into the
consultation pursuant to 36 CFR Part 800.6(b),
and proceed to act. Any such Council
consultation will be taken into account by all
parties to this agreement document in accordance
with 36 CFR Part 800.6(c)(2) when reaching a
final decision regarding the dispute.
144
Questions

• afford both the SHPO and the Agency Official who
  has specific responsibilities assigned within the
  stipulations an opportunity to endorse the
  agreement documents stipulations through
  signature of the document as Signatories
• Yes_________ No_________

145
Questions

• afford all Consulting Parties with specific
  responsibilities assigned within the stipulations
  an opportunity to endorse the agreement
  documents stipulations through signature of the
  document as Invited Signatories 
• Yes_________ No_________

146
Questions

• afford other Consulting Parties an opportunity to
  endorse the agreement documents stipulations
  through signature of the document as Concurring
  Signatories 
• Yes_________ No_________

147
EXAMPLE
Execution of this Memorandum of Agreement by the
Federal Highway Administration, The Tennessee
Department of Transportation, the Tennessee
Housing Development Agency representing the U. S.
Department of Housing and Urban Development, the
Tennessee Historical Commission (SHPO), and the
Newport Housing Authority, and implementation of
its terms, evidence that the above-referenced
federal agencies have afforded the Council an
opportunity to comment on the rehabilitation of
the Rhea Mims Hotel located in Newport, Cocke
County, Tennessee, and on the effects of this
undertaking upon historic properties, and that
the above-referenced federal agencies have taken
into account the effects of the undertaking on
historic properties.
148
EXAMPLE
FEDERAL HIGHWAY ADMINISTRATION   BY____________
______________________ Date____________ (Name
and title of signer)   TENNESSEE DEPARTMENT OF
TRANSPORTATION   BY____________________________
______ Date____________ (Name and title of
signer)   TENNESSEE HOUSING DEVELOPMENT AGENCY
  BY__________________________________
Date____________ (Name and title of
signer)   TENNESSEE HISTORICAL COMMISSION   BY__
________________________________
Date____________ Deputy State Historic
Preservation Officer   NEWPORT HOUSING
AUTHORITY   BY__________________________________
Date____________ (Name and title of signer)
149
Resolution of adverse effects
Mitigations counterbalance negative project
adverse effects with a positive treatment of the
historic property adversely affected. Standard
mitigations have been developed over the years to
resolve recurring adverse effects on historic
properties.
150
Resolution of adverse effects

• The agency official may choose to propose
  standard mitigative treatments to the State
  Historic Preservation Office and other consulting
  parties. These standard mitigations were
  developed over the years under 36 CFR Part
  800.14(d) as a help toward crafting appropriate
  stipulations contained in a project Memorandum of
  Agreement.

151
Resolution of adverse effects

• Then again, the agency official may choose to
  consult further about the possibility of carrying
  out creative and innovative mitigative treatments
  to be crafted into appropriate stipulations
  contained in a Memorandum of Agreement. The
  agency official may also choose to do both at the
  same time. Remember, a Memorandum of Agreement
  is nothing more and nothing less that the sum of
  what a willing agency official, and a willing
  State Historic Preservation Office/Tribal
  Historic Preservation Officer, and willing
  invited signatories agree to.

152
HOW DO YOU MITIGATE ADVERSE EFFECTS?
153
Mitigate

• Ways to mitigate adverse effects.
• Market the building or structure for adaptive
  reuse in conformance with the secretary of the
  interiors standards.

154
Mitigate

• Ways to mitigate adverse effects.
• Convey the property with appropriate protections
  in the form of preservation covenants to a third
  party.

155
Mitigate

• Ways to mitigate adverse effects.
• Record the building or structure
  photographically, with measured drawings, etc..

156
Mitigate

• Ways to mitigate adverse effects.
• Interpret the building or structure with plaques,
  monuments, waysides, etc..

157
Mitigate

• Ways to mitigate adverse effects.
• Develop a Historic Preservation Plan.

158
Mitigate

• Ways to mitigate adverse effects.
• Prepare and disseminate historic property reports.

159
Mitigate

• Ways to mitigate adverse effects.
• Incorporate historic preservation goals into
  future agency planning documents.

160
Mitigate

• Ways to mitigate adverse effects.
• Record the property photographically and/or
  through the creation of elevation drawings and
  plans to a standard set by the Historic American
  Building Survey/Historic American Engineering
  Record.

161
Mitigate

• Ways to mitigate adverse effects.
• Rehabilitate the property in accord with the
  "Secretary of the Interior's Standards for
  Rehabilitation and Guidelines for Rehabilitating
  Historic Buildings" and an "Historic Building
  Preservation Plan" prepared by qualified
  preservation professionals and reviewed and
  approved by the Review and Compliance Section.

162
Mitigate
Ways to mitigate adverse effects. landscaping
and vegetative screening around historic
properties to protect them from the undertaking
and its introduction of out of character elements
into the setting of the historic property
163
Mitigate
Ways to mitigate adverse effects additions
to/new construction within or next to historic
properties that accord with the Secretary of the
Interiors Standards for New Construction.
164
Mitigate
Ways to mitigate adverse effects. salvage and
banking of architectural features from historic
properties before the undertaking can cause its
adverse effects to happen
165
Mitigate
Ways to mitigate adverse effects. in place
preservation of archaeological historic
properties including burials   respectful
reburial of human remains removed from
archaeological historic properties
166
Mitigate

• Ways to mitigate adverse effects.
• Curate and interpret archaeological materials
  from the site.

167
Mitigate

• Ways to mitigate adverse effects.
• Develop an appropriate Phase III Data Recovery
  archaeological scope of work and carry it out.

except where human remains or grave goods are
involved
168
PHASED COMPLIANCE AGREEMENT DOCUMENT
169
Phased Compliance Agreement Document

• Adverse effect can sometimes be resolved through
  a phased compliance Memorandum of Agreement, if
  the project has various elements that are slated
  for implementation over a series of years.

170
PROGRAMMATIC AGREEMENTS
171
Programmatic Agreements

• 36 CFR Part 800.14(b) Federal Agency Program
  Alternatives,
• Programmatic Agreements are agreement documents
  that
• oversee the resolution of known or anticipated
  adverse effects, resulting from certain complex
  federal undertakings or programs.

172
Programmatic Agreements
Sometimes the ACHP and the agencys Federal
Preservation Officer negotiate a Nationwide
Programmatic Agreement in consultation with the
National Conference of State Historic
Preservation Officers.
173
Programmatic Agreements
Other times, the agency official negotiates a
programmatic agreement with the State Historic
Preservation Office within whose state the
program will occur.
174
Programmatic Agreements
Still other times, the agency official negotiates
with the Tribal Historic Preservation Officer for
programs slated to occur on tribal lands.
175
Programmatic Agreements are appropriate

• When the adverse effects of a program on historic
  properties are similar and repetitive or,
• when the program is multi-State or regional in
  scope or,
• when the extent or kind of effects on historic
  properties cannot be fully determined before
  federal final approval of an undertaking or,

176
Programmatic Agreements are appropriate

• when nonfederal parties are assigned major
  decision making or operational responsibilities
  by the agency official or,
• where routine management and operational
  activities are undertaken at Federal
  installations, facilities, or other land
  management units or,
• where other circumstances warrant a departure
  from the normal Section 106 process.

177
Programmatic Agreements

• identify all parties to the agreement
• specify how additional historic properties will
  be identified, evaluated, and treated
• list activities excluded from further review
  list activities required for further review
  clarify public involvement

178
Programmatic Agreements

• establish monitoring protocolsand specify
  processes for amendment, dispute resolution,
  termination, etc..
• establish protocols for preparing historic
  preservation plans and other administrative and
  documentary materials.

179
Programmatic Agreements
Programmatic Agreements take effect when executed
by the ACHP, the agency official, and the
appropriate SHPOs/ THPOs when the programmatic
agreement concerns a specific region or the
president of NCSHPO when NCSHPO has participated
in the consultation.
180
Programmatic Agreements
After being executed by the signatories, the
programmatic agreement has no legal force,
however, UNTIL after the agency has provided
public notice of its terms and allowed for public
comment. Id. 800.14(b)(2)(iv). Only then may
the agency issue an order that makes the terms of
the agreement binding.
181
HOW DO I PREPARE A PROGRAMMATIC AGREEMENT?
182
A prototype Programmatic Agreement contains A
Title Caption A Preamble A Commitment Block A
Block that Specifies the Responsibilities of the
Signatories A Set of Activities Excluded from
Further Section 106 Review A Set of
Identification and Evaluation Stipulations
(ICRMP) A Set of Effect Assessment Stipulations A
Set of Treatment Stipulations that Avoid,
Minimize, or Mitigate Adverse Effect A Set of
Miscellaneous Stipulations A Set of Housekeeping
Stipulations An Execution Block A Signature
Block Appendices
183
Programmatic Agreements
The Title Caption Specifies the document as a
Programmatic Agreement States the 36 CFR 800
language that authorizes it Lists the Signatories
to the PA Lead Federal Agency, Additional
Agencies, SHPO/THPO, ACHP, etc Lists the
Program/Undertaking Lists the Regulatory
Authority for the PA
184
Programmatic Agreements
The Preamble Lists the participants in the
Section 106 review process Lists the purposes for
which the PA has been drafted Describes the
program/undertaking covered by the PA Lists any
undertaking-associated activities not covered by
the PA States the Federal Agency finding of
possible adverse effect Notes consultation with
the SHPO/THPO, other Consulting Parties and an
invitation to sign or concur References known
surveys of Historic Properties within the
APE References agency policies, executive orders,
regulations, laws, etc. that bear upon the
PA A declaration that the agency and other
signatories will abide by the provisions of the
PA
185
Programmatic Agreements
The Commitment Block Carries a statement that
the Federal agency shall ensure that the
measures contained within the body of the PA are
carried out
186
Programmatic Agreements
The Block that Specifies the Responsibilities of
the Signatories Lists the responsibilities of
the Federal agency Lists the responsibilities of
all sub-grantees Lists the responsibilities of
all invited signatories Lists all required
notifications Lists all pertinent laws,
regulations, executive orders, or policies Lists
all previous Section 106 Agreement Documents that
apply Lists all ongoing responsibilities of other
consulting parties
187
Programmatic Agreements
The Set of Activities Excluded from Further
Section 106 Review Lists the classes of program
activities for which there is agreement that none
have the potential to affect historic properties.
This may be carried as a list of exclusions in
appendices.
188
Programmatic Agreements
The Set of Identification and Evaluation
Stipulations Lists the process by which the
agency or applicant will identify and evaluate
historic properties usually through the
preparation of a Section 110 document such as an
Integrated Cultural Resources Management
Plan Lists the process by which consulting
parties will make available previous surveys and
National Register eligibility determinations List
s the process by which the SHPO and other
affected consulting parties will review those
determinations
189
Programmatic Agreements
The Set of Effect Assessment Stipulations Lists
the process the Federal Agency or applicant for
Federal assistance will use to assess project
effects upon identified historic
properties Lists classes of program activity that
may be so assessed by the agency or applicant
and other classes that must be submitted to the
SHPO for review and comment Lists the process by
which the agency or applicant may expedite SHPO
review of their eligibility determinations and
effect findings
190
Programmatic Agreements
The Set of Treatment Stipulations that Avoid,
Minimize, or Mitigate Adverse Effect Lists the
various kinds of program activities covered by
the PA that are not excluded from further SHPO
review. Lists the standards, guidelines, and
policy documents to which agencies and
applicants will adhere in carrying out each
class of treatment to avoid, minimize, or
mitigate effect Lists a schedule for SHPO
monitoring of adherence Lists a process for
dispute resolution Lists a process for resolving
inadvertent discoveries
191
Programmatic Agreements
The Set of Miscellaneous Stipulations Procedures
for Public Participation Procedures for the
Treatment of Human Remains Procedures for
Protecting the Confidentiality of Sensitive
Locational Information Procedures for data
collection, curation, interpretation, display,
etc. Procedures for dealing with unanticipated
discoveries
192
Programmatic Agreements
The Set of Housekeeping Stipulations Lists a
process by which agency personnel and applicants
may be trained in Section 106 review
procedures Lists a process for dispute
resolution Lists a process for amending the
PA Lists a process for monitoring compliance with
the stipulations carried in the PA Lists a
process for periodic review of the effectiveness
of the PA Lists a process by which the PA may
be terminated Specifies a duration date for the
PA that voids the PA if its conditions have not
been met by that date (sunset clause)
193
Programmatic Agreements
The Execution Block Reaffirms the commitment of
the signatories to abide by the stipulations
carried in the PA Reaffirms the fact that the PA
recognizes and responds to the requirements of
Section 106
194
Programmatic Agreements
The Signature Block
Lists the Signatories
(lead Federal agency, SHPO/THPO, ACHP) Lists the
Invited Signatories (those who have enumerated
responsibilities) Lists Others who Concur All
by signed name and date of signature
195
Programmatic Agreements
Appendices Appendices that carry definitions of
words and terms found in the PA Appendices that
locate the undertaking and its APE
cartographically Appendices that document
historic properties (matrix) Appendices that
contain affected laws, regulations, executive
orders, agency policy statements, standards, and
guidelines that inform the stipulations in the PA
196
Reality Check

• Do not proceed to submit a draft Memorandum of
  Agreement or Programmatic Agreement to the State
  Historic Preservation Officer until all of the
  answers to the preceding questions are Yes,

197
HOW IS A MEMORANDUM OF AGREEMENT DIFFERENT FROM A
MEMORANDUM OF UNDERSTANDING?
198

• A Memorandum of Agreement
• establishes and documents a formal and legally
  binding contractual relationship between an
  agency official and a State Historic Preservation
  Office/ Tribal Historic Preservation Officer
• Is a duly signed and dated document
• records the terms, conditions, and stipulations
  agreed upon by these signatories, other invited
  signatory parties, and other concurring parties
• resolves the adverse effects of an undertaking
  upon historic properties. is a legally recognized
  and authorized Section 106 document that, if
  violated by one of the signatories, can lead to
  litigation in Federal District Court

199

• A Memorandum of Understanding
• is a kind of gentlemens agreement between two
  parties (federal agency and Indian tr