Historic and Archaeological
Resource Protection
for
USEPA Personnel
An Instruction Manual on
Implementing Section 106 of the
National Historic Preservation Act
and the Revised Regulations of the
Advisory Council on Historic Preservation
on Protection of Historic Properties
October 22, 2003
A
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HISTORIC PRESERVATION AND 106 COORDINATION
FOR USEPA OFFICIALS
TABLE OF CONTENTS
UNIT TOPIC PAGE
1. Why Should You Care about Historical and Archaeological Resources?
a. It's the law 1
b. The regulations require it 2
c. It's policy 2
d. It's a good idea 2
2. What Are "Cultural Resources"?
a. Districts 5
b. Sites 5
c. Buildings 5
d. Structures 5
e. Objects 5
3. How to Know if Resources are Affected by Your Project 6
a. Who decides? 6
b. Using the EPA Screening Form 6
c. What criteria are used? 6
4. Making the 106 Process Work for You: Four Steps to Success
a. Initiate the Process 8
b. Identify Historic Properties (Stage la, Ib, II) 9
c. Assess Adverse Impacts 12
d. Resolve Adverse Effects 14
5. Agreement Documents
a.. What are Agreement Documents? 15
b. How is the Decision to Prepare a Document Made? 15
c. Who Prepares the Agreement Document? 16
d. Who signs the Agreement Document 18
e. Why do we need Agreement Documents? 19
f. Can Agreement Documents be Revised? 19
g. What if the terms aren't carried out? 19
2. Working with Consulting Parties
a. the Advisory Council on Historic Preservation 21
b. the Historic Preservation Officer (SHPO/THPO) 21
c. the Tribes 22
d. the Public 23
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HISTORIC PRESERVATION AND 106 COORDINATION
FOR USEPA OFFICIALS
TABLE OF CONTENTS
(continued)
1. Guidelines on Data Recovery
a. Advisory Council Guidance 24
b. Twelve Keys to Successful Data Recovery 24
c. Conservation and the Fate of Recovered Resources 24
ATTACHMENTS
1 EPA Screening Form
2 Listing of SHPO' s by State
3 Regulations 36 CFR Part 800
4 Professional Qualification Standards
5 Suggestions for MOA Writing
6 Example Memoranda of Agreement
A. Atlantic Steel MOA
B. Murray Smelter MOA
C. Roebling Steel MOA
D. Amber Milling MOA
E. Eastern Surplus MOA
F. Eastland Woolen MOA
7. Example Programmatic Agreements
A. Revolving Fund
B. Upper Clark Fork
C. Nansemond Ordnance Depot
D. Emergency Response
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UNIT ONE
WHY SHOULD YOU CARE?
IT'S THE LAW
THE RULES & REGS REQUIRE IT
IT'S POLICY
IT'S A GOOD IDEA
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UNIT #1: WHY SHOULD YOU CARE ABOUT HISTORICAL AND
ARCHAEOLOGICAL RESOURCES?
Reason 1 It's the law
Page 1 of your handout lists many of the Federal Laws which require protection of historical and
archaeological resources. As you can see, there are at least 30 different laws which contain
provisions requiring protection of cultural resources. You should especially be familiar with the
following:
The American Antiquities Act of 1906 (16 USC 431-433) first codified the federal authority to
protect cultural resources as well as natural resources. This Act found strong support in the east
where there was intense interest in protection of properties linked to the colonial era and the
revolutionary war. It was further bolstered by support from the west, where concern for
protection of natural and scenic resources had led naturally to a desire to protect above ground
archaeological sites and ruins. It prohibited disturbance of archaeological resources and objects
of antiquity on federal lands without a permit. It also gave the President authority to designate
national monuments.
The Historic Sites, Buildings, Objects, and Antiquities Act of 1935 (16 USC 461-467). This
Act declared that "it is a national policy to preserve for public use historic sites, buildings, and
objects of national significance for the inspiration and benefit of the people of the United States".
It laid the groundwork for today's legislative protections for historic resources. This Act,
commonly known as the Historic Sites Act, first established the role of the Secretary of the
Interior and the National Park Service in historic preservation.
The National Historic Preservation Act (NHPA) of 1966 as amended (16 USC 470-470t, 110)
Section 101 (a): Established the National Register of Historic Places.
Section 201-212: Established the Advisory Council on Historic Preservation (ACHP)
and authorized them to develop implementing regulations.
Section 106: Established a required review process to protect resources which is
now commonly known as 106 Review.
Section 110: Required all Federal Agencies to develop a Preservation Program
and to designate a qualified official to be known as the agency's
"preservation officer" with responsibility for coordinating agency
activities under this Act.
Native American Graves Protection and Repatriation Act of 1990 (25 USC 3001-3013) specified
ownership and control of Native American cultural items which are excavated or discovered on
Federal or tribal lands. NHPA and NAGPRA are distinctly different laws and each imposes a
different requirement on the agency. These two should not be confused. (See unit 8).
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Reason 2 The regs require it.
If you look at the reverse side of your handout, you will see at the top of the page a list of
regulations which protect cultural resources. In particular, you should note the regulations of two
parties:
A. The Advisory Council on Historic Preservation (ACHP) or ("the Council") whose
regulations, at 36 CFR PART 800 are titled "Protection of Historic and Cultural
Resources". These specify the procedures for implementing 106 review. They are the
central focus of this course. 36 CFR Part 800 is attached to your course manual. You
should read these regulations. There are 20 members on the Advisory Council. EPA
Administrator Carol M. Browner is one of those 20 members.
B. The Secretary of the Interior who keeps the National Register of Historic Places and
sets the standards for:
Architectural and Engineering documentation (HABS/HAER)
Professional Qualifications
Rehabilitation
Treatment of Historic Properties
Reason 3 It's policy.
E.G. 11593 "Protection and Enhancement of the Cultural Environment" 1971
Requires federal agencies to consult with the Advisory Council on Historic Preservation
in development of procedures to preserve and enhance sites, structures, and objects of
historical or archaeological importance.
E.G. 13007 "Indian Sacred Sites 1996"
Requires federal agencies to (1) accommodate access to and ceremonial use of Indian
sacred sites by Indian religious practitioners and (2) avoid adversely affecting the physical
integrity of such sacred sites.
Reason 4 It's a good idea.
Why is it a good idea to protect historical and archaeological resources? Write down one or more
reasons why you think it might be important.
Are there any reasons why you think it might not be a good idea to protect historical and
archaeological resources?
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Laws, Regulations, Standards, Guidelines, and Executive Orders
Related to Cultural Resources
This listing was prepared by the National Park Service. It is current as of February, 2000. For an update, or for
more information on any of the items listed, visit the Park Service at http://www.cr.nps.gov/linklaws.htm!
Laws
Abandoned Shipwreck Act of 1987 (PL 100-298; 43 U.S.C. 2101-2106)
American Antiquities Act of 1906 (16 USC 431-433)
American Indian Religious Freedom Act of 1978 (42 USC 1996 and 1996a)
Archeological and Historic Preservation Act of 1974 (16 USC 469-469c)
Archaeological Resources Protection Act of 1979, as amended (16 USC 470aa-mm)
Bald Eagle Protection Act of 1940 (16 USC 668-668d)
The Copyright Act of 1976 (17 USC 101 et seq. [1988 & Supp. V 1993])
Disposal of Records (44 USC 3301 et seq.)
Endangered Species Act of 1973, as amended (16 USC 1531-1543)
Federal Property and Administrative Services Act of 1949, as amended (40 USC 483 [b])
Federal Records Act of 1950, as amended (Records Management by Agencies, 44 USC 3101 et seq.)
Freedom of Information Act of 1982 (5 USC 552)
Historic Sites, Buildings, Objects, and Antiquities Act of 1935 (16 USC 461-467)
Internal Revenue Code of 1986 (Qualified Conservation Contributions) (26 U.S.C.170[h])
Internal Revenue Code of 1990 (Rehabilitation Credit) (26 USC 47)
Lacey Act of 1900 (18 USC 43-44)
Marine Mammal Protection Act of 1972 (16 USC 1361-1407)
Migratory Bird Treaty Act of 1918 (16 USC 703-711)
Mining in the National Parks Act of 1976 (Section 9) (16 USC 1908)
Museum Properties Management Act of 1955(16 USC 18)
National Environmental Policy Act of 1969 (42 USC 4321)
National Historic Preservation Act of 1966, as amended (16 USC 470-470t, 110)
National Park Service Organic Act of August 25, 1916 (16 USC 1-4, 22, 43)
Native American Graves Protection and Repatriation Act of 1990 (25 USC 3001-3013)
Outer Continental Shelf Lands Act (43 USC 1332 )
Preservation, Arrangement, Duplication, Exhibition of Records (44 USC 2109)
Privacy Act of 1974 (5 USC 552a)
Public Buildings Cooperative Use Act of 1976 (40 USC 60la)
Reservoir Salvage Act of 1960, as amended (16 USC 469-469c)
Theft of Government Property (18 USC 641)
1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and
Transfer of Ownership of Cultural Property (19 USC 2601)
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Laws, Regulations, Standards, Guidelines, and Executive Orders
Related to Cultural Resources (continued)
Regulations
Certifications Pursuant to the Tax Reform Act of 1976 (36 CFR 67.2)
Curation of Federally-Owned and Administered Archeological Collections (36 CFR 79)
Disposition of Federal Records (36 CFR 1228)
Federal Records; General (36 CFR 1220)
Freedom of Information Act Regulations (36 CFR 810)
Historic Preservation Requirements of the Urban Development Action Grant Program (36 CFR 801)
National Historic Landmarks Program (36 CFR 65)
National Register of Historic Places (36 CFR 60) and Determinations of Eligibility for Inclusion in the
National Register (36 CFR 63)
Native American Graves Protection and Repatriation Act: Final Rule (43 CFR 10)
Preservation of American Antiquities (43 CFR 3)
Procedures for State, Tribal, and Local Government Historic Preservation Programs (36 CFR 61)
Protection of Archeological Resources (43 CFR 7)
Protection of Historic and Cultural Properties (36 CFR 800)
Research Specimens (36 CFR 2.5)
Standards and Guidelines
Abandoned Shipwreck Act Guidelines
Guidelines for Federal Agency Responsibilities, Under Section 110 of the NHPA
Preparation of Environmental Impact Statements: Guidelines (40 CFR 1500)
The Secretary of the Interior's Standards for Architectural and Engineering Documentation
The Secretary of the Interior's Professional Qualification Standards (48 FR 22716, Sept. 1983)
The Secretary of the Interior's Proposed Historic Preservation Professional Qualification Standards
The Secretary of the Interior's Standards for Rehabilitation (36 CFR 67)
The Secretary of the Interior's Standards for the Treatment of Historic Properties (36 CFR 68)
Executive Orders
Executive Order No. 11593 Protection and Enhancement of the Cultural Environment (1971)
Executive Order No. 13006 Locating Federal Facilities On Historic Properties In Our Nation's Central
Cities (1996)
Executive Order No. 13007 Indian Sacred Sites (1996)
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UNIT TWO
WHAT ARE CULTURAL RESOURCES?
DISTRICTS
SITES
BUILDINGS
STRUCTURES
AND OBJECTS
ELIGIBLE FOR LISTING IN THE NATIONAL
REGISTER OF HISTORIC PLACES.
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UNIT #2 WHAT ARE "CULTURAL RESOURCES"?
Historic and Archaeological Resources include districts, sites, buildings, structures, and objects
listed in or eligible for listing in the National Register of Historic Places. These may also be
listed in the Historic American Buildings Survey (HABS) or Historic American Engineering
Record (HAER) and/or may be National Historic Landmarks.
Sites - are the locations at which events of historical significance have occurred. Examples
include a battlefield site (Gettysburg), building ruins, campsite, the place where a treaty was
signed (Appomatox Courthouse), first landing point (Plymouth Rock), first point of settlement
(Jamestown), and prehistoric and historic archaeological sites.
Districts - are areas which include numerous historic structures, sites, buildings and objects as
well as "contributing elements", e.g. Capitol District with buildings, monuments, memorials,
museums (and their contents) parks, streets, roads, fences railings, lighting, lawns, etc. Mill
District with mill(s), dam and reservoir, raceways, canals, rail spurs, mill housing, church,
school, etc. "Contributing Elements" may be as simple as a piece of lawn or a fence, or as
complex as the overall setting or context of a resource including noise, air quality...
Buildings - are structures built principally to accomodate human use such as barns, forts, hotels,
houses, or industrial facilities that are important either because they are:
1) architecturally valuable as prime examples of building types, (like a Shaker bam
or a Greek Revival public building, or a Federal Period house, etc.)
2) or associated with important historical figures or events (as Monticello is
associated with Thomas Jefferson and Mount Vernon with George Washington.
Appomattox Court House is associated with the end of the Civil War. Suiter's
Mill is associated with the 49'ers Gold Rush...etc.)
Structures - constructed for utilitarian purposes such as barns, sheds, outhouses, salt works,
mines, quarries, kilns...
Objects - Stones covered with Petroglyphs, the sword of Lafayette, an Atlatl, an artillery piece, a
stone drill, a plaque...
Traditional cultural properties (such as dance grounds, vistas, waterways etc.) are also cultural
properties which may be subject to protection.
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UNIT THREE
ARE YOU AFFECTING RESOURCES?
WHO DECIDES WHAT IS AND ISN'T A "RESOURCE'
You
Your Branch Chief or Division Head
The State Historic Preservation Officer
The Tribal Historic Preservation Officer
The Secretary of the Department of the Interior
USING THE EPA SCREENING FORM
A Simple but Effective Way to Evaluate Your Projects
WHAT ARE THE CRITERIA OF ELIGIBILITY?
Associated with Significant Events
Associated with Lives of Significant Persons
Embodying Distinctive Characteristics
Containing Important Prehistoric or Historic Information
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UNIT #3 ARE YOU AFFECTING CULTURAL RESOURCES
Who decides what is and isn't a resource? The Key Players
• EPA Responsible Official (Usually the Division Head or Branch Chief) as advised by EPA
cultural resource personnel, the project manager or program manager, the program or
project staff and their consultant archaeologists and historians.
•State Historic Preservation Officer (SHPO) - Center of coordination efforts and the first point of
contact for EPA. The SHPO is responsible for developing a "Comprehensive Statewide
Historic Preservation Plan" and implementing it.
• Tribal Historic Preservation Officer (THPO) - For federally recognized tribes with a delegated
program, otherwise the tribe may provide a representative under SHPO review.
• Secretary of the Department of the Interior - The Secretary is the keeper of the National
Register and also develops criteria of eligibility for the register
Using the EPA Screening Form
EPA Cultural resource personnel have developed a screening form which you can use to
characterize the cultural resource impacts of your projects. A copy of this form is appended to
this manual. It summarizes the questions you should ask when considering the potential for
cultural resource impacts on your projects. The form is also available in digital format (Adobe
Acrobat or Microsoft Word) and can be completed interactively on-screen.
The Criteria Used to Determine Register Eligibility (36 CFR 60.4)
"The quality of significance in American history, architecture, archeology, engineering, and culture is
present in districts, sites, buildings, structures, and objects that possess integrity of location, design,
setting, materials, workmanship, feeling, and association and:
(a) that are associated with events that have made a significant contribution to the broad
patterns of our history; or
(b) that are associated with the lives of persons significant in our past; or
(c) that embody the distinctive characteristics of a type, period, or method of construction,
or that represent the work of a master, or that possess high artistic values, or that
represent a significant and distinguishable entity whose components may lack individual
distinction; or
(d) that have yielded, or may be likely to yield, information important in prehistory or
history."
Note that this definition is very broad and that it allows for listing of a wide range of different resource
types anywhere in the nation. What may appear to you to be empty field, hillside or desert may actually
be a major prehistoric site of significant archaeological importance. What might look to the casual
observer like decaying junk might actually be an important remnant of a bygone industrial age.
There are also a number of qualifiers on these criteria. The Council calls them "Criteria considerations".
Ordinarily cemeteries, birthplaces, or graves of historical figures, properties owned by religious
institutions or used for religious purposes, structures that have been moved from their original locations,
reconstructed historic buildings, properties primarily commemorative in nature, and properties that have
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achieved significance within the past 50 years shall not be considered eligible for the National Register.
However, such properties will qualify if they are integral parts of districts that do meet the criteria or if
they fall within the following categories:
(a) A religious property deriving primary significance from architectural or artistic
distinction or historical importance; or
(b) A building or structure removed from its original location but which is significant
primarily for architectural value, or which is the surviving structure most importantly
associated with a historic person or event; or
(c) A birthplace or grave of a historical figure of outstanding importance if there is no
appropriate site or building directly associated with his productive life.
(d) A cemetery which derives its primary significance from graves of persons of
transcendent importance, from age, from distinctive design features, or from association
with historic events; or
(e) A reconstructed building when accurately executed in a suitable environment and
presented in a dignified manner as part of a restoration master plan, and when no other
building or structure with the same association has survived; or
(f) A property primarily commemorative in intent if design, age, tradition, or symbolic
value has invested it with its own exceptional significance; or
(g) A property achieving significance within the past 50 years if it is of exceptional
importance."
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UNIT FOUR
MAKING THE 106 PROCESS WORK FOR YOU
FOUR STEPS TO SUCCESS
I INITIATE THE PROCESS
II ASSESS ADVERSE EFFECTS
III IDENTIFY HISTORIC PROPERTIES
IV RESOLVE ADVERSE EFFECTS
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The Revised Section 106 Process:
Flow Chart
May 1999
'™m$^
W
Initiate Section 106 Process
Establish undertaking
Identify appropriate SHPO/THPO
Plan to involve the public
Identify other consulting parties
UNDERTAKING MIGHT AFFECT HISTORIC PROPERTIES
.*p%
*v<^
II
Identify Historic Properties
Determine scope of efforts
Identify historic properties
Evaluate historic significance
HISTORIC PROPERTIES ARE AFFECTED
ii
Assess Adverse Effects
Apply criteria of adverse effect
it
HISTORIC PROPERTIES ARE ADVERSELY AFFECTED
••-- : a-:- -.-•• •-
Resolve Adverse Effects
Continue consultation
FAILURE TO AGREE
NO UNDERTAKING/
NO POTENTIAL TO
CAUSE EFFECTS
NO HISTORIC
PROPERTIES AFFECTED
NO HISTORIC PROPERTIES
ADVERSELY AFFECTED
MEMORANDUM OF
AGREEMENT
+ COUNCEL COMMENT
(over)
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The Revised Section 106 Process: A Summary
Section 106 of the National Historic
Preservation Act of 1966 (NHPA) requires
Federal agencies to take into account the
effects of their undertakings on historic
properties, and afford the Advisory Council
on Historic Preservation a reasonable
opportunity to comment The historic
preservation review process mandated by
Section 106 is outlined in regulations
issued by the Council. These regulations,
."Protection of Historic Properties," were
revised in May, 1999 and are summarized
below. They will be codified at 36 C.F.R.
Part 800.
Initiate Section 106 process
The responsible Federal agency first . ...
determines whether it has an undertaking
that could.affect historic properties, which
are properties that are included in or that
meet the criteria for the National Register
of Historic Races. If so, it must identify the
appropriate State Historic Preservation
Officer/Tribal Historic Preservation Officer
(SHPO/THPO) to consult with during the
process. It should also plan to involve the
public, and identify other potential
consulting parties. If it determines that it
has no undertaking, or that its undertaking
has no potential to affect historic
properties, the agency has no further
Section 106 obligations.
Identify historic properties
If the agency's undertaking could affect
historic properties, the agency determines
the scope of appropriate Identification
efforts and then proceeds to Identify his-
toric properties in the area of potential '
effects. The agency reviews background •
Information, consults with the SHPO/THPO
and others, seeks information from
knowledgeable parties, and conducts
additional studies as necessary. Districts,
sites, buildings, structures, and objects
listed in the National Register are
considered; unlisted properties are evalu-
ated against the NationaJ Park Service's
published criteria, in consultation with the
SHPO/THPO and any Indian tribe or Native
Hawaiian organization that may attach
religious or cultural Importance to them.
If questions arise about the eligibility of a
given property, the agency may seek a
formal determination of eligibility from the •
National Park Service. Section 106 review
gives equal consideration to properties that
have already been included in the National
Register as well as those that meet
National Register criteria.
If the agency finds that no historic
properties are present or affected.
it provides documentation to the
SHPO/THPO and, barring any objection in
30 days, proceeds with its undertaking.
If the Agency finds that historic properties
are present, it proceeds to assess possible
.adverse effects.
Assess adverse effects
The agency, In consultation with the
SHPO/THPO, makes an assessment of
adverse effects on the identified historic
properties based on criteria found in the
Council's regulations.
If they agree that there will be No Adverse
Effect, the agency proceeds with the
undertaking and any agreed upon
conditions.
If the parties cannot agree or they find that
there Is an Adverse Effect, the agency
begins consultation to identify ways to
avoid, minimize, or mitigate adverse
effects.
Resolve adverse effects
The agency consults with the SHPO/THPO
and others, who may include Indian tribes
and Native Hawaiian organizations, local
governments, permit or license applicants,
and members of the public. The Council
may participate in consultation when there
are substantial impacts to Important historic
properties, when a case presents important
questions of policy or interpretation, when
there is a potential for procedural problems,
or when there are issues of concern to
Indian tribes or Native Hawaiian
organizations.
Consultation usually results in a Memoran-
dum of Agreement (MOA), which outlines
agreed upon measures that the agency will
take to avoid, minimize, or mitigate the ad-
verse effect In some cases, the consulting
parties may agree that no such measures
are possible, but that the adverse effects
must be accepted in the public interest
Implementation
If an MOA is executed, the agency
proceeds with its undertaking under the
terms of the MOA,
Failure to resolve adverse effects
If consultation proves unproductive, the
agency or the SHPO/THPO, or the Council
itself, may terminate consultation. If an
SHPO terminates consultation, the agency
and the Council may conclude an MOA
without SHPO involvement However, if a
THPO terminates consultation and the
undertaking is on or affecting historic
properties on tribal lands, the Council must
provide its comments. The agency must
submit appropriate documentation to the
Council and request the Council's written
comments. The agency head must take
into account the Council's written com-
ments in deciding how to proceed.
Tribes, Native Hawallans, &the public
Public involvement is a key ingredient in
successful Section 106 consultation, and
the views,of the public should be solicited
and considered throughout the process.
The regulations also place major emphasis
on consultation with Indian tribes and
Native Hawaiian organizations, In keeping
with the 1992 amendments to NHPA,.
Consultation with an Indian tribe must
respect tribal sovereignty and the
govemment-to-govemment relationship
between the Federal government and
Indian tribes. Even if an Indian tribe has
not been certified by NPS to have a THPO
that can act for the SHPO on its lands, It
must be consulted about undertakings on
or affecting its lands on the same basis and
in addition to the SHPO.
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UNIT #4 MAKING THE 106 PROCESS WORK FOR YOU: FOUR STEPS TO SUCCESS
Handout: The Revised Section 106 Process: Flow Chart. ACHP May 1999 (attached)
STEP I: ................................. . ........... INITIATE THE PROCESS
Question: Do you have an "undertaking" which might affect historic properties?
First, you must determine if you have an "undertaking" as defined by the National Historic
Preservation Act. EPA has developed a Screening Document to evaluate appropriate level of 106
review. The 106 process should be coordinated with other reviews (e.g. NEPA)
The National Historic Preservation Act defines "undertaking" - as:
"...a project, activity, or program funded in whole or in part under the direct or indirect
jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal
agency; those carried out with Federal financial assistance; those requiring a Federal
permit, license or approval; aHd4hose-subjecUo-state-oHocalT-egiilatro
or^pprovart
Then, identify consulting parties. Consulting parties include:
The appropriate SHPO and/or THPO (listing available at www.achp.org)
Other consulting parties identified by the SHPO/THPO
Members of the general public - outreach should reflect the:
• nature and complexity of the undertaking
• nature and complexity of the impacts
• extent of Federal involvement in the undertaking
• likely public interest and
• confidentiality concerns
Then consult with the identified parties to:
- include the parties in the Agency planning process
- establish the nature of the undertaking
- establish the nature of the undertaking's effects.
Two possible answers:
No! This is not an undertaking and/or this has no potential to cause effects -
Yes! This is an undertaking which might affect Historic Properties - GO TO STEP H
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STEP II IDENTIFY HISTORIC PROPERTIES
The Question: Are there historic properties in the project area which might be affected by
the undertaking?
In this step, you will work with the SHPO/THPO to determine the Area of Potential Effect
(APE), identify historical properties, identify properties of religious and cultural significance to
recognized tribes and make a determination on properties and the potential effects.
In general, the steps you will follow in the process of identifying historic properties are:
1. Establish areas(s) of potential effect
2. Determine whether the area has been surveyed or otherwise inspected to identify historic
properties
3. Determine whether the area is "large" or "small"
4. Determine whether the available information provides a reliable basis for decision
making
5. Determine whether the area should be subjected to intensive survey, and whether such a
survey can be carried out within a reasonable period of time and at reasonable cost
6. Determine whether an alternative to intensive survey is appropriate
7. Decide how to proceed with Section 106 review
Survey of historic properties
Few Agency employees have the necessary expertise to complete the research needed to evaluate
the presence of, or significance of cultural resources. Therefore it is frequently necessary to work
with consultant archaeologists and historians. Archaeologists and historians may be contracted
directly by the Agency, but more commonly are consultants to the applicant or project proponent.
Much of the work that needs to be done is research. The resource identification process is
divided into two progressive levels of survey:
Stage LA - Documentation Review and Strategy Development, and
Stage IB - Site Recognition Survey.
In certain instances, the limited scope of the project or its limited potential for effect on cultural
resources may permit the combination of the two levels of survey.
Stage IA - Documentation Review and Strategy development
The applicant, through the assistance of a qualified professional, carries out the Stage IA survey
to identify documented cultural resources and areas of cultural sensitivity in the project area. The
information from the survey is used to screen and develop project alternatives in order to
minimize direct and indirect impacts on historic and cultural resources. At a minimum, the
survey should include the following:
• A broad-based literature search,
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• Analysis of documentation obtained from the SHPO, state archaeologist, historical and
archaeological societies, libraries, museums and universities (at the-local,, state, and
regional levels),
• Analysis of published accounts, models of settlement systems and geomorphology to
predict the relative potential of the project area for the existence of documented
resources, and
• An initial field reconnaissance for familiarization with the planning area.
The qualified professional will prepare a report of the survey, including recommendations for
whether or not additional investigation is necessary. The EPA, in consultation with the state
reviewing agency, then evaluates the report and its recommendations for adequacy.
If additional work is recommended, the report should contain an explicit research strategy for the
field survey (Stage IB-Site Recognition Survey). The scope of the Stage IB will include the
sampling of areas of varying cultural sensitivity identified in the Stage LA survey.
Stage IB - Site Recognition Survey
The survey area for the Stage IB survey will be the area of direct impact of the proposed
alternative(s) and will be based on the research design. This survey will determine the presence
or absence of important cultural resources that could be affected by the proposed project and will
target those resources which would require further investigation. Subsurface testing to identify
undocumented archaeological sites will generally be necessary. Survey methodology and field
activities will be documented in a report prepared by the qualified professional detailing specific
recommendations for further action in relation to the proposed alternatives.
EPA, in consultation with the state reviewing agency, will evaluate all findings and
recommendations for adequacy and assess, in conjunction with facility planning documents, the
potential of project impacts. If potential impacts on an identified resource cannot be avoided or
insufficient data on the resource is available, the state/EPA will advise of the need to conduct a
Stage LI - Site Definition and Evaluation Survey. The state/EPA will evaluate the design and
scope of the proposed Stage LI survey for its adequacy,
Stage II - Site Definition and Evaluation Survey
This survey is carried out by the applicant on identified cultural resources that may be subject to
impact. The survey is undertaken when direct effects on a resource cannot be avoided by
reasonable modification of the undertaking or when information (extent, depth, significance)
about a resource is insufficient to assess avoidance/preservation alternatives. At a minimum,
this survey will provide data to allow for an assessment of the resource's National Register
eligibility (boundaries, integrity and significance) according to the "Criteria for Evaluation" in 36
CFR 60.6. EPA and the state, in consultation with the SHPO, will use this data to:
10
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• Avoid impacts to the cultural resource,
• Assess the need to request a determination of eligibility from the Keeper of the National
Register (36 CFR 63),
• Assess the proposed impact on the resource, and
• Develop a proposal for appropriate mitigation should the cultural resource be determined
eligible for listing in the National Register and avoidance is not practical.
Stage III - Data recovery.
Data recovery is sometimes appropriate to resolve adverse effects where disturbances are
unavoidable (i.e. certain archaeological sites). Data recovery can take the form of archaeological
excavation, recordation of architectural elements, or documentation of configurations of
contributing elements. See unit seven for guidance on the use of Data Recovery as a means to
resolve adverse effects.
National Register Eligibility Process
When a resource appears to meet the criteria for listing on the National Register, the EPA, in
consultation with the SHPO, will apply the "Criteria for Evaluation" to the resource. EPA, with
assistance from the state agency, will prepare appropriate documentation according to DOI
guidelines for eligibility. As part of the documentation, EPA will also solicit a written opinion
from the SHPO concerning the resource eligibility. If both the EPA and SHPO agree on the
eligibility, then the resource is considered eligible by "Consensus Determination".
If a question exists, or if EPA and the SHPO cannot agree on eligibility, the documentation can
be transmitted to the Keeper of the National Register for an official determination of eligibility
pursuant to 36 CFR 63.3.
The answers:
NO! "No historic properties affected" either because there are no historic properties in the
APE or because there are historic properties, but the undertaking won't affect them.
If so, provide documentation to the SHPO/THPO, notify consulting parties, and make
documentation available to the public. SHPO/THPO and Advisory Council have 30 days
to file an objection. If none filed within 30 days
106 COORDINATION COMPLETED
YES! Historic properties affected PROCEED TO STEP m
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STEP III DETERMINE EFFECT
In this step, you work with the SHPO/THPO and the public to apply the criteria of adverse effect
and determine if the effect of your undertaking on historic properties will be adverse.
The question: Will the affect on Historic Properties be adverse?
Criteria are Defined by §800.5:
"(1) Criteria of adverse effect. An adverse effect is found when an undertaking may alter,
directly or indirectly, any of the characteristics of a historic property that qualify the property for
inclusion in the National Register in a manner that would diminish the integrity of the property s
location, design, setting, materials, workmanship, feeling, or association. Consideration shall be
given to all qualifying characteristics of a historic property, including those that may have been
identified subsequent to the original evaluation of the property's eligibility for the National
Register. Adverse effects may include reasonably foreseeable effects caused by the undertaking
that may occur later in time, be farther removed in distance or be cumulative."
Who decides if an effect is adverse? The same parties who made the decision regarding what is
and isn't a resource in Unit Three. These parties must be consulted regarding the effect.
Usually, the guidance of the SHPO/THPO is instrumental in the Agency decision regarding
effects although the Council may step in, especially to resolve disputes regarding resources and
effects.
Review the list of examples of adverse effects below (taken from 800.5). Can you offer specific
examples of effects which result from your projects or programs?
"(2) Examples of adverse effects.
Adverse effects on historic properties include, but are not limited to:
(I) Physical destruction of or damage to all or part of the property;
(ii) Alteration of a property, including restoration, rehabilitation, repair, maintenance, stabilization,
hazardous material remediation and provision of handicapped access, that is not consistent with
the Secretary's Standards for the Treatment of Historic Properties (36 CFR part 68) and applicable
guidelines;
(iii) Removal of the property from its historic location;
(iv) Change of the character of the property s use or of physical features within the property s setting
that contribute to its historic significance;
(v) Introduction of visual, atmospheric or audible elements that diminish the integrity of the property s
significant historic features;
(vi) Neglect of a property which causes its deterioration, except where such neglect and deterioration
are recognized qualities of a property of religious and cultural significance to an Indian tribe or
Native Hawaiian organization; and
(vii) Transfer, lease, or sale of property out of Federal ownership or control without adequate and
legally enforceable restrictions or conditions to ensure long-term preservation of the property s
historic significance. "
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The criteria of adverse effect are applied in consultation with consulting parties
You must:
consult with the SHPO/THPO
consult with any tribe regarding religious and cultural significance
consider views provided by consulting parties and the public.
Phased application is allowed for
corridors,
large areas, and
cases where access to properties is restricted.
Two possible answers:
NO! No Historic Properties Adversely Affected
You must provide documentation and findings to all consulting parties and to the public.
The SHPO/THPO has 30 days to file an objection. If the SHPO/THPO does not respond
in 30 days than that is the same as agreement.
The Council will review only if there is a disagreement or by specific Council request.
The Council has 15 days to review. If there is no Council response within 15 days that is
the same as agreement
106 COORDINATION COMPLETED
YES! Historic Properties Adversely Affected
PROCEED TO STEP IV
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STEP IV RESOLVE ADVERSE EFFECTS
Question: Can we come to an agreement which will allow us to proceed in a manner
which will minimize and/or mitigate adverse effects?
A. Send notification to the Council - ACHP must be notified for all adverse effect findings.
ACHP can be notified by sending them the same documentation package as was sent to
consulting parties. The notification must include a description of:
the undertaking and the APE
identification steps and affected historic properties
effects and applicability of the criteria of adverse effect
views of consulting parties and the public.
It is important that the Council be notified of every finding of adverse effect as soon as
the finding is complete. The MOA should NOT be the first notice that the Council
receives of an undertaking with adverse effects.
B. Invite the Council to participate if:
a National Historic Landmark is adversely affected,
a Programmatic Agreement is proposed or
The agency wants Council involvement.
C. Consider alternatives to avoid effects and alternatives to mitigate or minimize effects to
historic properties
Alternatives to avoid potential effects
to historic properties might include:
no action alternative
shift in alignment
relocation to different area
design or process modification
non-structural solutions
other
Alternatives to mitigate or minimize
potential effects might include:
shift in alignment
design or process modification
non-structural solutions
data recovery
HABS/HAER* documentation
other
* Historic American Building Survey/Historic American
Engineering Record
Answers:
YES! Negotiate stipulations, prepare MOA, get signatures and approvals
SEE UNIT 5 "AGREEMENT DOCUMENTS"
END.
NO! Council must be invited to participate. Council may either consult, or comment
SEE UNIT 6A "WORKING WITH THE ADVISORY COUNCIL"
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UNIT FIVE
AGREEMENT DOCUMENTS
A. WHAT ARE AGREEMENT DOCUMENTS?
NAt S/ MOAs / PAS
B. HOW IS THE DECISION TO PREPARE A
DOCUMENT REACHED?
C. WHO PREPARES THE DOCUMENT?
D. WHO SIGNS THE DOCUMENT?
E. WHY DO WE NEED
AGREEMENT DOCUMENTS?
F. CAN THEY BE REVISED?
G. WHAT IF THE TERMS AREN'T
CARRIED OUT?
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UNIT 5 AGREEMENT DOCUMENTS
A. What are agreement documents?
Agreement documents are the formal written evidence that the Agency has complied with the
106 process. Decision documents record the findings of the 106 process, formalize the
agreement between consulting parties, and provide a written record of the measures to be
undertaken to resolve adverse effects.
The term "agreement document" includes three types of documents that conclude the process of
review under Section 106. Each type represents an agreement between an agency and a SHPO,
or an agreement among an agency, the SHPO, the Council, and sometimes other parties.
"No Adverse Effect" (NAE) determinations are made by agencies in consultation with
. SHPOs under 36 CFR (185) 800.5(d). Often in making such a determination, an agency,
an SHPO, and sometimes other parties agree on project changes or conditions to prevent
adverse effects to historic properties. Agencies provide NAE determinations, with
supporting documentation, to the Council for review.
Memoranda of Agreement (MOA) are executed under 36 CFR (185) 800.5(e)(4). In an
MOA an agency, a SHPO, the Council, and sometimes other parties agree on measures to
avoid, reduce, or mitigate adverse effects on historic properties, or to accept each effect in
the public interest.
Programmatic Agreements (PA) are executed under 36 CFR (185) 800.13. In a PA an
agency, the Council, and other parties agree on a process for considering historic
properties with respect to an entire agency program.
B. How is the decision to prepare an agreement document reached?
The process leading to an agreement document depends on the nature of the undertaking and its
effects.
NAE determinations. Under the regulations, the responsible Federal agency official applies the
Council's Criteria of Effect and Adverse Effect [36 CFR § 800.9] to historic properties
within an undertaking's area of potential effects, in consultation with the SHPO. If the
agency determines that the undertaking will have no adverse effect, the agency so advises
the Council, usually in a letter to the Council with supporting documentation. The extent
of the documentation required depends on whether the SHPO has formally concurred in
the determination and on the nature of the undertaking's effects.
If the fact that the undertaking will have no adverse effect is obvious, reaching the
determination should be easy and involve only simple, routine consultation between the
agency and SHPO. If there are questions to be resolved about the nature of the
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undertaking's effects, however, substantial consultation may go into reaching the
determination, involving onsite reviews, study of documents, weighing of alternatives,
perhaps making alterations in project plans, and the development of conditions which,
once agreed upon, will ensure, within reason, that adverse effects will be avoided.
MOAs. If the agency's application of the Criteria of Adverse Effect indicates that the undertaking
will have adverse effects, achieving agreement normally requires more formal
consultation, often involving a wider range of parties than is typical of an NAE
determination. Still, however, the nature of the consultation process is determined by the
extent of the undertaking and its effects. It may be obvious that there is no reasonable
alternative to the action causing adverse effects, and the measures that can be adopted to
reduce or mitigate such adverse effects may be equally obvious. In such a case an MOA
can usually be developed promptly. Where an undertaking presents more complex issues,
consultation involves careful discussion of the undertaking's various effects, examination
of alternatives to avoid or mitigate those effects, and a careful weighing of the public
interest, often in the context of public meetings, onsite inspections, the conduct of
appropriate studies, and the participation of diverse groups of people. The result is usually
an MOA representing the best compromise solution agreeable to all the consulting
parties.
PAs. A PA is usually developed because an agency finds that its actions under a given program,
within a large and complex project, or with respect to a given class of undertakings will
require many individual requests for Council comment under 36 CFR § § 800.4 through
800.6, and that making such requests will be inefficient or otherwise inconsistent with
effective program management. Under such circumstances the agency suggests to the
Council, or to an SHPO, that a PA be developed prescribing a review process tailored to
its particular program, to stand in place of the normal Section 106 review process.
Alternatively, the Council, an SHPO, or some other party may suggest to an agency that a
PA is appropriate, and the agency may agree. The parties then notify the potentially
concerned public and consult to reach agreement. The responsible agency and the Council
are always consulting parties on a PA, together with one or more SHPOs or the National
Conference of SHPOs (NCSHPO). Other parties participate in consultation and sign the
PA depending on the nature of the program and its effects. The process of consultation
toward a PA under 36 CFR § 800.13 is extremely flexible—to accommodate the diversity
of Federal programs, the regulations avoid prescribing a particular procedure. Once
agreement is reached, the consulting parties.execute the PA, which then goes into effect,
superseding the terms of 36 CFR § § 800.4 through 800.6 with respect to actions under
the program the PA covers.
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C. Who prepares the agreement document?
NAE determinations. Under 36 CFR § 800.5(d), the Federal agency official is responsible for
making an NAE determination, and therefore is responsible for documenting it. A
document memorializing an agreement on which an NAE determination is based may,
however, be developed by another party. For example, if an SHPO writes to an agency
saying that in his or her opinion an undertaking will have no adverse effect if specified
, conditions are carried out, the agency can then write to the Council committing itself to
carry out the conditions, appending the SHPO's letter with whatever supporting
documentation is necessary for the Council's review, and making its NAE determination.
In some cases the Council, too, may draft conditions upon which an NAE determination
can be based.
MOAs. The regulations at 36 CFR § 800.5(e) permit agencies and SHPOS to develop MOAs
- without Council participation, provided the responsible agency notifies the Council when
it initiates consultation with the SHPO. This notification affords the Council the
opportunity to participate if it chooses. MOAs developed without Council participation
are submitted by the agency to the Council for review; acceptance of such an MOA by the
Council concludes the Section 106 review process. Such MOAs are commonly called
two-party MOAs because a minimum of two parties (the agency official and the SHPO)
sign them before they are sent to the Council. Other parties may sign as concurring
parties.
The regulations also permit the Council to participate formally in the consultation
process. In such an event, the Council is a formal signatory to the MOA along with the
agency official, the SHPO, and any other parties. Such an MOA is commonly referred to
as a three-party MOA because it has a minimum of three signatories (agency official,
SHPO, and Council). Three-party MOAs are often prepared by the Council, but can be
prepared by any of the other consulting parties, once the parties have reached agreement
on its content.
The Council can also participate informally in the consultation process, so an agency
official or SHPO can ask the Council to provide a draft two-party MOA that the
consulting parties can then finalize and send to the Council for review and acceptance.
The Council will help develop such drafts to the extent that time and personnel
limitations permit.
PAs. PAs are usually prepared in final form by the Council, though they are often prepared in
draft by an agency official or an SHPO or group of SHPOs, or by others. The Council
must be consulted in the development of a PA. [36 CFR § 800.13] Certain kinds of
frequently used PAs, covering the programs of local governments using Community
Development Block Grants (CDBG) and related program funds, are commonly prepared
by SHPOs or local governments with minimum Council participation, however.
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D. Who signs the agreement document?
Three-party MO As are created as the result of consultation under 36 CFR § 800.5(e), in which
the Council elects to participate in consultation, or is invited to consult by the agency or SHPO.
The Council need not be invited to participate in consultation where the undertaking under
review is relatively simple, noncontroversial, and routine. In such cases two-party MO As are
most appropriate. The Council must be notified when an adverse effect on historic properties is
found and consultation begins toward a two-party agreement. Upon receiving such notification,
or upon otherwise learning about the undertaking, the Council may elect to participate formally
in the consultation.
NAE determinations. NAE determinations are usually memorialized in letters signed by the
relevant agency official, sometimes with attached conditions or exhibits, and are sent to
the Council with appropriate supporting documentation. SHPOs may concur in NAE
-.•.. determinations in the same letter that is signed by the agency official, or ma separate
letter. Other parties may concur in NAE determinations. Unless an agency has legal
authority to delegate its Section 106 responsibilities to another party, the agency official's
signature on the NAE document is mandatory.
MO As. At minimum, two parties sign every MOA. Normally the two parties are the Federal
agency official responsible for the undertaking and the SHPO. If the SHPO declines to
sign the MOA, or fails to respond within 30 days after receiving an agency request for his
or her signature, the agency official can ask the Council to sign the MOA in lieu of the
SHPO. [36 CFR § 800.1(c)(l)(ii)]
When a two-party MOA is accepted by the Council, the Council's authorized
•representative signs it on an acceptance line. The Council's representative signs
three-party MO As in the same manner as the agency officials and SHPOs. A Federal
agency official may only delegate MOA signature authority to a representative of a State
or local government if the agency has legal authority to delegate its Section 106
responsibilities. Where multiple Federal agencies are involved in an undertaking, all may
sign the MOA, or signature authority may be formally delegated to a lead agency.
Where the undertaking will affect the lands of an Indian tribe, the tribe must be invited to
concur in any agreement document. With respect to two-party and three-party MO As,
other parties who have participated in consultation may be invited to concur. For example
a local preservation organization may be invited to concur in an MOA if the agency and
SHPO (and the Council, if it is a participant) agree to do so.
PAs. PAs are signed by the representative of the responsible agency or local government and by
the Council. They are also usually signed by an SHPO, several SHPOs, or the president of
NCSHPO, depending on the nature of the program they cover. Other parties may concur
in a PA.
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E. Why do we need agreement documents?
Execution and implementation of an agreement document, whether it be an NAE determination,
an MO A, or a PA, evidences a Federal agency's fulfillment of its responsibilities under Section
106. In other words, agreement documents indicate both that the agency has taken the effects of
the undertaking into account, and that the agency has afforded the Council a reasonable
opportunity to comment. An agreement document obligates the parties to carry out its terms. If
the terms cannot be carried out the document must be amended, or further comments of the
Council must be sought in accordance with the regulations.
F. Can agreement documents be revised?
Agreement documents are normally revised if the nature of the undertaking changes. For
example, the locations where effects will occur or the nature of those effects may be altered, or
unanticipated effects maybe identified after the agreement document is concluded. Revisions
also are made if the measures originally agreed upon become insufficient to address the
preservation problems involved, or if they are unduly expensive or otherwise infeasible.
Revisions are sometimes made to accommodate a change in approach occasioned by professional
concerns, such as a change in the research questions addressed in an archeological data recovery
program. Finally, revisions may be necessary if a considerable amount of time passes between
execution of the agreement document and implementation of its terms, during which time
concepts of historic significance and how to deal with various kinds of historic properties may
change.
If after executing an MOA an agency determines that it will be unable to carry out the MOA's
terms, the agency should request an amendment in accordance with 36 CFR § 800.5(e)(5). Any
other party to an agreement document may request an amendment—for example, a party may
request an amendment if that party believes a change has occurred in the undertaking, which
creates new preservation problems that must be addressed. Amendments are negotiated in the
same manner as original agreements. Although the regulations do not specify a process for
amending agreements associated with NAE determinations, or for amending PAs, these
documents too should be revised, where necessary, through consultation among the original
participants.
G. What if an agreement document's terms are not carried out?
Since implementation of an agreement document evidences fulfillment of an agency's Section
106 responsibilities, it follows that failure to implement its terms evidences that the agency's
Section 106 responsibilities have not been fulfilled.
NAE determinations. Agencies are required by the regulations to carry out the measures they
agree to in reaching NAE determinations. [36 CFR § 800.5(d)(2)] If an agency fails to do
so it has not complied with Section 106 and must resubmit the undertaking for review.
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MO As. Failure to carry out an MOA's terms requires that the agency resubmit the undertaking to
which the MOA pertains for Council comment, by preparing a new MOA or amending
the existing MOA. If consultation to prepare a new MOA or amendments proves
unproductive, the agency is required to seek Council comment in accordance with 36
CFR § 800.6(b). [36 CFR § 800.6(c)(l)]
PAs. Failure to carry out a PA's terms requires that the responsible agency comply with the
regulations on a case-by-case basis with respect to individual undertakings that would
otherwise be covered by the PA. [36 CFR § 800.13(g)]
* This section is excerpted from guidance material prepared by the Advisory Council on Historic
Preservation. The full text of AGHP's guidance document is available on-line at the following address:
http://www.achp.gov/agreement.html
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UNIT SIX
WORKING WITH CONSULTING PARTIES
A. THE ADVISORY COUNCIL
B. THE SHPO/THPO
C. NATIVE AMERICAN TRIBES AND
NATIVE HAWAIAN ORGANIZATIONS
D. THE PUBLIC
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UNIT 6 WORKING WITH CONSULTING PARTIES
A. Working with the Advisory Council on Historic Preservation
The current 106 coordination process greatly reduces the role of the Advisory Council on
Historic Preservation.
1. Criteria for Council Involvement
The Council is likely to get involved if the project involves:
Substantial impacts on important properties,
Important questions of policy or interpretation,
Procedural problems, or
Issues of concern to Native Americans.
The regulations do not specify the conditions under which the Council should be invited to
participate, except that 36 CFR § 800.10 requires that the Council participate in consultation
concerning direct and adverse effects on National Historic Landmarks. The Council should be
invited to participate when the undertaking under review is complicated or potentially
controversial, when there is substantial public interest in the historic preservation issues
involved, when the undertaking presents issues about which Council policy is not established, or
when the national perspective the Council can bring to bear on preservation issues is required or
may be useful.
The Council can be consulted informally during a process which otherwise proceeds as a
two-party consultation. 30-day Council review is provided for two-party MOAs under 36 CFR §
800.6(a)(l) with respect to a generally routine undertaking with a few unusual elements, or if the
consulting parties are unfamiliar with the mechanics of MO A preparation.
2. National Landmarks
If there are adverse impacts on National Landmarks the Council must be invited to consult and
so must the Secretary of the ulterior. 36 CFR § 800.10 requires that the Council participate in
consultation concerning direct and adverse effects on National Historic Landmarks.
3. Council Comments:
must be made within 45 days (unless otherwise agreed)
are sent to the Agency Head (with copies to the Federal Preservation Officer
and consulting parties)
may be issued even when the Council is a signatory to the MOA
B. Working with the SHPO/THPO
The SHPO/THPO is the official designated to carry out the 106 process for most projects.
Regulations now put the SHPO/THPO in charge, with appeal to the Council. The SHPO is also
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the individual designated by the governor of the state to develop and administer the Historic
Preservation Plan for the State as required by the National Historic Preservation Act. The SHPO
is therefore a central repository and archive for all aspects of documentation of historical and
archaeological resources within the state. This means that the SHPO is the central source for all
of the contextual data which will be needed to adequately evaluate the resources affected by your
project.
Contact the SHPO/THPO as soon as an undertaking is identified
SHPO/THPO's office will assign a contact to track the undertaking
Routine coordination with the SHPO/THPO or contact is key to making the process work
Look to leadership by SHPO/THPO in eligibility determinations
notify SHPO/THPO of the Area of Project Effect (APE) early on
• if SHPO/THPO agrees on a finding of No Historic Properties Affected then 106
coordination process is complete.
If SHPO/THPO thinks there might be eligible resources in the APE, SHPO/THPO
will provide guidance on the need for further investigation/documentation.
SHPO/THPO/THPO is usually the permitting/licensing authority for
archaeological excavation
SHPO/THPO reviews draft MOA and signs final MOA.
• SHPO/THPO can assist Agency to determine the appropriate level of
documentary recording. Agency then verifies that all documentary recording is
completed and accepted by SHPO/THPO prior to the initiation of undertaking.
SHPO may designate appropriate state and local archive locations for copies of
the documentation.
The SHPO is mandated under law to provide assistance to the agency. However, like EPA, the
SHPO has to work with limited resources. It is therefore important to ensure that inquiries to the
SHPO are structured narrowly within the context of the 106 process. The SHPO usually can't,
for example, tell you if there are or are not resources in your project area. However, consultation
with the SHPO can help you to determine the need for an archaeological or historical survey of
your project area. The SHPO won't provide you with a scope of work for the survey, but will
typically review draft research proposals to ensure that the survey will be responsive to project
need.
C. Working with the Tribes
106 Consultation requirement applies to all Federally Recognized tribes. Tribes with a THPO
should always be consulted. Tribes without THPO must still be consulted if project would
affect:
properties on tribal lands or
religious and cultural properties off tribal lands.
The THPO is distinct from the SHPO in that the THPO's authority is limited only to tribal lands
and to tribal religious and cultural properties off tribal lands. Therefore the THPO does not have
the broader archives or repository of statewide information held by the SHPO
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Even tribes without a THPO (i.e. who have not assumed the authority of the SHPO for the tribe)
may still have a tribal representative who should be consulted. This consultation is required to
help the Agency determine the potential for effects on cultural resources. Native American
participation is necessary to identify sacred articles and articles of major cultural significance.
The Native American Graves Protection and Repatriation Act of 1990 (25 USC 3001-3013) may apply
to resources in the project area.
Native American Human Remains and Objects including:
Associated funerary objects - objects originally placed with, and still associated
with Native American human remains;
Unassociated funerary objects - objects originally placed with, but no longer
accompanied by, Native American human remains;
sacred objects - ceremonial objects needed for the practice of religion;
objects of cultural patrimony - objects having ongoing historical, traditional or
cultural importance central to the Native American group or-culture itself,
rather than property owned by an individual Native.
NAGPRA should not interfere with scientific study. If a lineal descendant, Indian tribe, or
Native Hawaiian organization requests culturally affiliated Native American cultural items the
Federal agency or museum shall expeditiously return such items "unless such items are
indispensable for completion of a specific scientific study, the outcome of which would be of
major benefit to the United States. Such items shall be returned by no later than 90 days after
the date on which the scientific study is completed." This provides ample opportunity for
evaluation and conservation of resources before return.
D. Working with the Public
The 106 Process must be open to interested parties at all stages. Participants may include local
members of community, residents in and near the APE, local historical societies, members of
unrecognized tribes, etc. These must all have an opportunity to participate in the 106 process.
The 106 public participation requirements can normally be fulfilled in coordination with other
program or project based public participation activities. Plan to include the 106 process when
developing your public participation programs. When making contact through the
advertisements, newsletters and the media for public meetings, hearings and workshops
remember to explicitly mention the 106 process (e.g "...and in compliance with Section 106 of
the National Historic Preservation Act". Collect and save all comments and correspondence
relative to historic preservation to document the public coordination process and its results.
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UNIT SEVEN
GUIDANCE FOR DATA RECOVERY
A. ADVISORY COUNCIL GUIDANCE
B. TWELVE KEYS TO SUCCESSFUL DATA
RECOVERY PROGRAMS
CONSERVATION AND THE FATE OF
RECOVERED RESOURCES
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UNIT 7 DATA RECOVERY GUIDANCE
A. The viability of data recovery as a means for resolving adverse effects depends on the
nature of the resource. Data recovery programs must be closely tailored to the basis of
eligibility. The Advisory Council has issued guidance on data recovery at 64 FR 27085-
27087 (attached to the regulations in this manual). If this guidance is followed, the
Council is unlikely to intervene in recovery actions.
B. There are twelve keys to successful data recovery programs:
1. The site must be valuable chiefly for information which can be recovered
2. No human remains, funerary objects, sacred objects, or items of cultural patrimony
3. No long-term value for preservation in place
4. No special significance to ethnic group or community which would object
5. Site not valuable for permanent in-situ display or public interpretation
6. Data recovery plan with research design approved and implemented
7. Work performed by professionals meeting qualification standards (48 FR 44738-39)
8. Adequate resources allocated to complete plan with periodic reporting to all parties
9. Final Report which meets DOI's standards (42 FR 5377-79) sent to SHPO/THPO
10. Oversight and peer review provided for large, unusual or complex projects
11. No unresolved issues with Tribes attaching religious and cultural significance to site
12. Terms and conditions part of MO A or Programmatic Agreement
C. Conservation and the Fate of Recovered Resources
Under the 12 guidelines provided above, data recovery can be an effective means for resolving
adverse effects. To ensure that data is not lost, however, the research must be completed
thoroughly. NAGPRA requires that human remains, associated and unassociated funerary
objects, and objects of tribal patrimony must be promptly surrendered to tribal authorities.
However, it provides that any such objects which are the subject of on-going study may remain in
the possession of the federal government (or its representatives) while the study in underway.
This clause provides ample opportunity for proper completion of field studies, post field-work
research and conservation of recovered resources before the resources are surrendered. Objects
must then be surrendered within 90 days of the completion of the study.
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ATTACHMENT 1
EPA SCREENING FORM
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Instructions
This form is an Adobe Acrobat file. It has been provided to you in this format to assist you in filling
out the form on-line.
Spaces have been provided for written responses where indicated. Click the left mouse button in
the empty space and begin typing. Check boxes are activated by single clicking on your left mouse
button. Questions which allow multiple answers will have boxes. Those where you can only choose
one answer are indicated with circles or "radio buttons". In order to proceed to the next question,
you should use your tab key. Boxes and circles can also be activated by using the space bar.
The information you enter on this form can be printed, however your data will not be saved if you
choose to exit the program. You will be given two choices at the end of the document: Print or
Reset. If you choose reset, all of the data you have entered will be erased. If you need to save your
responses, you must print them.
In the future, this form may be placed on the EPA Website. At that point, the completed form may
be transmitted to the Office of Federal Activities by selecting the "send" key. Since this form is
currently not on the EPA Website, this feature can not be used.
When you have completed the checklist, please print and then mail to:
Patricia Haman
US Environmental Protection Agency
Office of Federal Activities
410 M. Street S. W.
Washington, DC 20460
If you have any questions about the form, please contact Patricia by calling: 202-564-7152 or by
e-mail: haman.patricia@epamail.epa.gov
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Checklist for Determining and Assessing Involvement with
Section 106 of the National Historic Preservation Act
US Environmental Protection Agency — Office of Federal Activities
Introduction
The purpose of this checklist is to provide background information to EPA's regional and headquar-
ters Historic Preservation Officers to assess the applicability of Section 106 of the National Historic
Preservation Act of 1966 as amended, 16 U.S.C. 470f (NHPA). This checklist should be used as
early as possible when cultural resources/historic properties are potentially present. Please respond
to as many of the checklist items as you can; regional Historic Preservation Officers and/or the
project officer should assist in preparing this checklist.
Technical Assistance
The Advisory Council for Historic Preservation maintains a helpful and user-friendly web site.
This site provides details on the Section 106 process and may be helpful in preparing this checklist.
The site is located at http://www.achp.gov/index.html.
Part A — Background Information/Screening
The purpose of part A is to assist in determining the extent of EPA involvement and responsibility
under Section 106 of NHPA and to identify the appropriate project contacts. This section should be
completed as much as possible, prior to contacting your regional or headquarters preservation of-
ficer.
Al. Project/Action description: [Describe the nature of the project/action and its relationship to
historic properties, including a description of any public issues and/or concerns raised.]
A2. Originating EPA region and division:
A3. How was EPA contacted about this project/action? [Describe methods used and parties
involved such as letters from public officials.]
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A4. EPA point of contact (name, address, phone, e-mail):
AS. Categorize EPA s role: [Include statutory and regulatory references if appropriate, such as
Clean Water Act. Clean Air Act etc.]
permit action (include type and reference)
LJ review under NEPA
Q program implementation
Q other:
A6. Who is undertaking project/action? (choose one)
Agency
State
O Tribe O Territory
Private
(If NEPA Documentation required, name of lead agency)
Primary Contact/Lead Agency Local Government or Tribal Contact
A7. Funding mechanism or program: (choose all that apply)
Q Federal Q State Q Local Of
Private
A8. Check other regulations which may apply to the project/action.
Q National Environmental Policy Act (NEPA) 42 U.S.C. 432 et sec.
CEQ regs. implementing NEPA, 40 CFR part 1500
EPA regs. implementing NEPA, 40 CFR part 6
Section 309 and/or other sections of Clean Air Act
Section 404 and/or other sections of the Clean Water Act
Section 102 and/or other sections of the Marine Protection, Research, & Sanctuaries Act
Endangered Species Act
EPA regs. on ocean dumping, 40 CFR parts 220-228
(Question A8 continued next page...)
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EPA regs. on disposal of dredged or fill material, 40 CFR parts 230-231
Q EPA regs. for the Municipal Wastewater Treatment Works, 40 CFR, part 35
CD EPA regs: Public Participation; Conservation & Recovery, Safe Drinking and Clean Water
Acts, 40 CFR, Part 35.
Q Executive Order 11988, Wetlands
Q Executive Order 11990, Floodplains
Q Executive Order 12898, Environmental Justice
Q other:
A9. Indicate number and type of historic property(ies) potentially affected by the project/
action, using examples below as a guide.
Number
Building(s): (barn, church, fort, hotel, house, industrial facility)
Structure(s): (aircraft, boat, bridge, canal, earthwork, kiln, lighthouse, smokestack)
Object(s): (fountain, milepost, monument)
Archeological site(s): (battlefield, building ruins, campsite, landscape, prehistoric site,
prehistoric rock shelter, ship wreck)
Traditional cultural properties: (dance grounds, vistas, waterways)
A10. Briefly describe the potentially affected historic properties, including significant
characteristics of each (may reference historic reports and studies).
All. What is the nature of the potential effect?
O Direct (dejnolition, earth disturbance, land acquisition, altered views, noise, etc...)
Ll Indirect (induced growth, increased traffic, etc...)
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Part B — Property or Resources Affected by Project/Action
The purpose of part B is to provide additional information regarding potentially affected historic
properties.
Bl. Project area location/ownership:
USGS quadrangle name(s)
Project/action area description:
Q Single site or property
Q Region
O other:
Watershed
Estuary
Ownership: (check all that apply and the name of the owner or owners):
Q Private _
Q Federal
Q State
Q Tribal
Municipal
B2. What methods were used to identify historic properties? (check all that apply)
D historic resource identification survey Q National Register records review
Q field visit Q historic map review
Q phase I archaeological survey Q phase II archaeological survey
Q early coordination letter to SHPO/THPO Q early coordination letter to local government
O other (describe):
B3. What is the duration of the potential effect?
Short-term (temporary due to construction, etc...)
Long-term (land acquisition, demolition, change in land use, etc...)
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B4. List potential effect(s) on the historic property (ics) noted above.
(check all that apply)
access/egress to historic property changed or obstructed
demolition of principal building or structure
partial or full demolition of ancillary structures or features
partial/total acquisition of property
relocation of property
transfer, sale or lease of property out of Federal control or ownership
reconstruction/rehabilitation of principal building or structure
alteration of views to and from property
modem construction adjacent to historic property or district
utility line crossing historic property
installation of underground infrastructure (sewer & water lines, other utilities) within
property
remediation of hazardous and toxic materials
other:
B5. Indicate the type of alternatives considered to avoid potential effects to historic
properties, (check all that apply)
CJ no action alternative
Q shift in alignment of proposed project/action
Q relocation to different area
Q design or process modification
LJ non-structural solutions
Q other:
B6. Indicate the type of alternatives considered to mitigate or minimize the potential effects.
(check all that apply)
Q shift in alignment of proposed project/action
LJ design or process modification
(Question B6 continued next page...)
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O non-structural solutions
Q data recovery
Q Historic American Building Survey/Historic American Engineering Record
Documentation
Q other:
B7. Was a preferred alternative selected?
O Yes © No
If yes, does the preferred alternative have a greater impact on historic resources than the
other alternatives studied? © Yes © No © Uncertain
B8. Indicate alternatives or mitigation measures which were considered, but not chosen,
and the reason for rejection.
no action alternative
Reason for rejection
shift in alignment of proposed project/action
Reason for rejection
relocation to different area
design or process modification
Reason for rejection
CJ non-structural solutions
Reason for rejection
data recovery
Reason for rejection
Q other:
Reason for rejection
Reason for rejection
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Part C — Coordination Summary
The purpose of part C is to provide a summary of the public and agency coordination conducted for
the project/action, including a description of the contacts, method of notification, and the responses
received. This information is vital in assuring compliance under Section 106, and will be used to
determine if any further coordination or public involvement is necessary.
Cl. Public outreach and coordination methods, (check all that apply)
[J public information meetings
public officials briefmg(s)
newsletters/brochure mailing
special meetings
other:
(THPO) notified?
Yes O No
If yes, date notified and method used (attach copies of correspondence):
written
Q oral
Q other:
Date:
Date:
Date:
Summary of SHPO/THPO response (attach copies of correspondence):
Did EPA respond to SHPO/THPO comments? O Yes Q No
If yes, date and method of response (attach copies of correspondence):
Q written
Q oral
Q other:
Date:
Date:
Date:
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C3. Local government agency or historic society notified?
Yes
No
If yes, date notified and method used (attach copies of correspondence):
LJ written
Q oral
Q other:
Date:
Date:
Date:
Name of agency/society officials contacted:
Summary of local response (attach copies of correspondence):
Did EPA respond to local agency/society comments? O Yes O No
If yes, date and method of response (attach copies of correspondence):
written
Q oral
Q other:
Date:
Date:
Date:
C4. Indian Tribes /Native Hawaiian organizations notified?
Q Yes Q No © not applicable
If yes, date notified and method used (attach copies of correspondence):
written
Q oral
Q other:
Date:
Date:
Date:
Name of Tribal or Native Hawaiian organization(s) or officials contacted:
Summary of response from Tribal or Native Hawaiian organization(s):
(Question C4 continued next page...)
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Did EPA respond to Tribal /Native Hawaiian organization comments?
If yes, date and method of response (attach copies of correspondence):
Yes
No
written
Q oral
G other:
Date:
Date:
Date:
C5. Summary of other Federal, State or local agency coordination efforts/Section 106
consultation.
Name of Person Completing Checklist:
phone number:
fax number:
Date:
e-mail address:
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ATTACHMENT 2
LISTING OF SHPOs BY STATE
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State Information and
SHPO List
Alabama
Dr. Lee Warner, SHPO
Alabama Historical Commission
468 South Perry Street
Montgomery, AL 36130-0900
Phone: 334-242-3184
Fax: 334-240-3477
E-mail: lwarner@mail.preserveala.org
Deputy: Ms. Elizabeth Ann Brown
E-mail: ebrown@mail.preserveala.org
Alaska
Ms. Judith Bittner, SHPO
Alaska DNR, Ofc History & Archeology
550 West 7th Avenue, Suite 1310
Anchorage, AK 99501-3565
Phone: 907-269-8721
Fax: 907-269-8908
E-mail: judyb@dnr.state.ak.us
Deputy: Joan Antonson
American Samoa
Mr. John Enright, HPO
Executive Offices of the Governor
AS Government/Historic Preservation
Office
Pago Pago, American Samoa 96799
Phone:011-684-633-2384
Fax: 684-633-2367
E-mail: enright@samoatelco.com
Deputy: Mr. David J. Herdrich
E-mail:
David_J_Herdich@samoatelco.com
Arizona
Mr. James W. Garrison, SHPO
Mr. James W. Garrison, SHPO
Arizona State Parks
1300 West Washington
Phoenix, AZ 85007
Phone: 602-542-4174
Fax: 602-542-4180
E-mail: jgarrison@pr.state.az.us
Deputy: Ms. Carol Griffith
E-mail: cgriffith@pr.state.az.us
Deputy: Dr. William Collins
E-mail: wcollins@pr.state.az.us
Arkansas
Ms. Cathie Matthews, SHPO
Department of Arkansas Heritage
323 Center Street, Suite 1500
Little Rock, AR 72201
Phone: 501-324-9150
Fax:501-324-9154
E-mail: cathiem@arkansasheritage.org
Deputy: Mr. Ken Grunewald, 501-324-
9357
E-mail: keng@arkansasheritage.org
No listings for B.
California
Dr. Knox Mellon, SHPO
Office of Hist Pres, Dept Parks &
Recreation
P.O. Box 942896
Sacramento, CA 94296-0001
Phone: 916-653-6624
Fax: 916-653-9824
Deputy: Mr. Stephen Mikesell
Colorado
Ms. Georgianna Contiguglia, SHPO
Colorado Historical Society
1300 Broadway
Denver, CO 80203
Phone: 303-866-3395
Fax: 303-866-4464
Deputy: Mr. Mark Wolfe
Phone: 303-866-2776
Fax:303-866-2041
E-mail: mark.wolfe@chs.state.co.us
Deputy: Dr. Susan M. Collins
Phone: 303-866-2736
E-mail: susan.collins@chs.state.co.us
Connecticut
Mr. John W. Shannahan, SHPO
Connecticut Historical Commission
59 So. Prospect Street
Hartford, CT 06106
Phone: 860-566-3005
Fax: 860-566-5078
E-mail: John. shannahan@po.state.ct. us
Deputy: Paul Loether
Delaware
Mr. Daniel Griffith, SHPO
Division of Historical and Cultural Affairs
Tudor Industrial Park
604 Otis Drive
Dover, DE 19901
Phone:302-739-5313
Fax: 302-739-6711
E-mail: dan.griffith@state.de.us
Deputy: Ms. Joan Larrivee
Delaware State Hist Preservation Office
15 The Green, Dover, DE 19901
Phone: 302-739-5685
Fax: 302-739-5660
E-mail: joan.larrivee@state.de.us
District of Columbia
Ms. Lisa Burcham, SHPO
Historic Preservation Office
801 North Capitol Street NE, 3rd Floor
Washington, DC 20002
Phone: 202-442-8800
Fax: 202-535-2497
E-mail: lisa.burcham@dc.gov
Mr. David Maloney
Phone: 202-442-8818
E-mail: david.maloney@dc.gov
No listings for E
Florida
Dr. Janet Matthews, SHPO
Div of Historical Resources, Dept of
State
500 S. Bronough St., Room 305
Tallahassee, FL 32399-0250
Phone: 850-245-6300
E-mail: jmatthews@mail.dos.state.fl.us
Bureau of Historic Preservation
Toll Free Phone: 800-847-7278
Phone: 850-245-6333
Fax: 850-245-6437
Mr. Lonice C. Barrett, SHPO
Historic Preservation Division/DNR
156 Trinity Avenue, SW, Suite 101
Atlanta, GA 30303-3600
Phone: 404-656-2840
Fax:404-651-8739
Deputy: Dr. W. Ray Luce, Director
E-mail: ray_luce@dnr.state.ga.us
Deputy: Mr. Richard Cloues
E-mail: richard_cloues@dnr.state.ga.us
Guam
Ms. Lynda B. Aguon, SHPO
Guam Historic Preservation Office
Department of Parks & Recreation
-------
PO Box 2950 Building 13-8 Tiyan
Hagatna, Guam 96932
Phone: 1-671-475-6290
Fax: 1-671-477-2822
E-mail: laguon@mail.gov.gu
Hawaii
Mr. Peter T. Young, SHPO
Department of Land & Natural Resources
601 Kamokila Blvd. Suite 555
Kapolei, HI 96707
Phone: 808-548-6550
Fax:808-587-0018
Acting Administrator: Ms. P. Holly
McEldowney
State Historic Preservation Office
Phone:808-692-8015
Fax: 808-692-8020
E-mail: holly.mceldowney@hawaii.gov
Deputy: Jon C. Smith
Phone: 317-232-1646
Fax:317-232-0693
E-mail: jsmith@dnr.state.in.us
Iowa
Ms. Anita Walker, Acting SHPO
State Historical Society of Iowa
Capitol Complex
East 6th and Locust St.
Des Moines, IA50319
Phone: 515-281-8741
Fax:515-242-6498
E-mail: anita.walker@ca.state.ia.us
Deputy: Dr. Lowell Soike
Phone: 515-281-3306
Fax:515-282-0502
E-mail: loweil.soike@dca.state.ia.us
Deputy: Mr. Robert Collins
Phone: 225-342-8200
E-mail: rcollins@crt.state.la.us
Deputy: Mr. Jonathan Fricker
Phone:225-342-8160
E-mail: jfricker@crt.state.la.us
Maine
Mr. Earle G. Shettleworth, Jr., SHPO
Maine Historic Preservation Commission
55 Capitol Street, Station 65
Augusta, ME 04333
Phone:207-287-2132
Fax: 207-287-2335
E-mail: earte.shettleworth@maine.gov
Deputy: Mr. Kirk F. Mohney
E-mail: kirk.mohney@maine.gov
Idaho
Steve Guerber, SHPO
Idaho State Historical Society
1109 Main Street, Suite 250
Boise, ID 83702-5642
Phone: 208-334-2682
Deputy: Suzi Neitzel
Phone: 208-334-3847
Fax: 208-334-2775
E-mail: sneitzel@ishs.state.id.us
Deputy: Ken Reid
Phone: 208-334-3861
Illinois
Mr. William L. Wheeler, SHPO
Associate Director
Illinois Historic Preservation Agency
1 Old State Capitol Plaza
Springfield, IL 62701-1512
Phone: 217-785-4512
Fax:217-524-7525
Deputy: Mr. Theodore Hild, Chief of Staff
E-mail: ted_hild@ihpa.state.il.us
Deputy: Ms. Anne Haaker
Indiana
Mr. John R. Goss, SHPO
Director, Department of Natural
Resources
402 West Washington Street
Indiana Govt. Center South, Room W256
Indianapolis, IN 46204
E-mail: dhpa@dnr.state.in.us
No listings for J
Kansas
Ms. Mary R. Allman, SHPO, Executive
Director
Kansas State Historical Society
6425 Southwest 6th Avenue
Topeka, KS 66615-1099
Phone: 785-272-8681 x202
Fax: 785-272-8682
E-mail: mallman@kshs.org
Deputy: Mr. Richard D. Pankratz,
Director
Historic Pres Dept
Phone: 785-272-8681 x217
Deputy: Ms. Christy Davis, Asst. Director
Historic Pres Dept
Phone: 785-272-8681 x215
Kentucky
Mr. David L. Morgan, SHPO, Executive
Director
Kentucky Heritage Council
300 Washington Street
Frankfort, KY 40601
Phone: 502-564-7005
Fax: 502-564-5820
E-mail: dmorgan@mail.state.ky.us
Louisiana
Ms. Laurel Wyckoff, SHPO
Dept of Culture, Recreation & Tourism
P.O. Box 44247
Baton Rouge, LA 70804
Phone: 225-342-8200
Fax: 225-342-8173
Marshall Islands. Republic of the
Mr. Lenest Lanki, HPO
Secretary of Interior and Outer Islands
Affairs
P.O. Box #1454, Majuro Atoll, MH 96960
Phone: 011-692-625-4642
Fax:011-692-625-5353
Deputy: Clary Makroro
E-mail: tunkul@ntamar.com
Maryland
Mr. J. Rodney Little, SHPO
Maryland Historical Trust
100 Community Place, Third Floor
Crownsville, MD 21032-2023
Phone:410-514-7600
Fax:410-514-7678
E-mail: little@dhcd.state.md.us
Deputy: Ms. Elizabeth Hughes
Phone: 410-514-7604
E-mail: hughese@dhcd.state.md.us
Deputy: Mr. Michael Day
Phone: 410-514-7629
E-mail: day@dhcd.state.md.us
Massachusetts
Ms. Cara Metz, SHPO
Massachusetts Historical Commission
220 Morrissey Boulevard
Boston, MA 02125
Phone: 617-727-8470
Fax:617-727-5128
TTD: 1-800-392-6090
E-mail: Cara.Metz@sec.state.ma.us
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Deputy: Ms. Brona Simon, Dir Technical
Servs
E-mail: Brona.Simon@sec.state.ma.us
Michigan
Brian D. Conway, SHPO
State Historic Preservation Office
Michigan Historical Center
Box 30740
Lansing. Ml 48909-8240
Phone: 517-373-1630
Fax: 517-335-0348
E-mail: conwaybd@state.mi.us
Micronesia. Federated States of
Mr. Rufino Mauricio, FSM HPO
Office of Administrative Services
Div of Archives and Historic Preservation
FSM National Government
P.O. Box PS 70
Palikir, Pohnpei, FM 96941
Phone:011-691-320-2343
Fax: 691-320-5634
E-mail: fsmhpo@mail.fm
FSM includes four States,whose HPOs
are listed below:
Mr. Alfonso Fanechigiy, HPO
Yap Historic Preservation Office
Office of the Governor
PO Box 714
Colonia, Yap, FM 96943
Phone: 011-691-350-2194/2255
Fax: 691-350-2381
E-mail: hpoyapfsm@mail.fm
Mr. David B. Welle, Chuuk SHPO
Department of Commerce & Industry
PO Box 280, Moen, Chuuk (Truk), FM
96942
Phone:011-691-330-2761
Fax: 691-330-4906
Mr. Emensio Eperiam, HPO
Dir, Dept of Land
Pohnpei State Government
P.O. Box 1149, Kolonia, Pohnpei, FM
96941
Phone:011-691-320-2611
Fax:011-691-320-5599
E-mail: nahnsehleng@mail.fm
Mr. Berlin Sigrah, Kosrae HPO
Div of History and Cultural Preservation
Dept of Conservation and Development
Tofol, Kosrae, FM 96944
Phone: 011-691-370-3078
Fax:011-691-370-3767
E-mail: dalu@mail.fm
Minnesota
Dr. Nina Archabal, SHPO
Minnesota Historical Society
345 Kellogg Boulevard West
St. Paul, MN 55102-1906
Phone: 651-296-2747
Fax: 651-296-1004
Deputy: Dr. Ian Stewart
Phone: 651-297-5513
Deputy: Ms. Britta L. Bloomberg
Phone: 51-296-5434
Fax: 651-282-2374
E-mail: britta.bloomberg@mnhs.org
Mississippi
Mr. Elbert Milliard, SHPO
Mississippi Dept of Archives & History
P.O. Box 571
Jackson, MS 39205-0571
Phone: 601-359-6850
Deputy: Mr. Kenneth H. P'Pool
Division of Historic Preservation
Phone: 601-359-6940
Fax: 601-359-6955
E-mail: kppool@mdah.state.ms.us
Missouri
Mr. Stephen Mahfood, SHPO
State Department of Natural Resources
205 Jefferson, P.O. Box 176
Jefferson City, MO 65102
Phone: 573-751-4422
Fax: 573-751-7627
Deputy: Mr. Mark A. Miles
Director
State Historic Preservation Office
P.O. Box 176
Jefferson City, MO 65102-0176
Phone: 573-751-7858
Fax: 573-526-2852
E-mail: nrmilem@mail.dnr.state.mo.us
Deputy: Ms. Sara Parker
Phone: 573-751-1010
E-mail: nrparks@mail.dnr.state.mo.us
Montana
Dr. Mark F. Baumler, SHPO
State Historic Preservation Office
14108th Avenue
P.O. Box201202
Helena, MT 59620-1202
Phone: 406-444-7717
Fax: 406-444-6575
E-mail: mbaumler@.state.mt.us
Deputy: Mr. Herbert E. Dawson
Nebraska
Mr. Lawrence Sommer, SHPO
Nebraska State Historical Society
P.O. Box 82554
1500 R Street
Lincoln, NE 68501
Phone: 402-471-4745
Fax: 402-471-3100
E-mail: nshs@nebraskahistory.org
Deputy: Mr. L. Robert Puschendorf
Phone: 402-471-4769
Fax:402-471-3316
E-mail: dshpo@mail.state.ne.us
Nevada
Mr. Ronald James, SHPO
Historic Preservation Office
1 DON Stewart Street
Capitol Complex
Carson City, NV 89701-4285
Phone: 775-684-3440
Fax: 775-684-3442
Deputy: Ms. Alice Baldrica
Phone: 775-684-3444
E-mail: ambaldri@clan.lib.nv.us
New Hampshire
Mr. James McConaha, Director/SHPO
NH Division of Historical Resources
P.O. Box 2043
Concord, NH 03302-2043
Phone: 603-271-6435
Fax: 603-271-3433
TDD: 800-735-2964
E-mail: jmcconaha@nhdhr.state.nh.us
Deputy: Ms. Linda Ray Wilson
Phone: 603-271-6434 or 603-271-3558
E-mail: lwilson@nhdhr.state.nh.us
New Jersey
Mr. Bradley M. Campbell, SHPO
DEP
401 East State Street
PO Box 402
Trenton, NJ 08625
Phone: 609-292-2885
Fax: 609-292-7695
Deputy: Ms. Dorothy Guzzo
Historic Preservation Office, 4th Fl
501 East State Street
PO Box 404
Trenton, NJ 08625
Phone:609-984-0176
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Fax: 609-984-0578
E-mail: dquzzo(S)dep.state.ni.us
Fax:919-733-8653
E-mail: david.brook@ncmail.net
1115 Commercial Street, NE, Suite 2
Salem, OR 97301-1012
Deputy: Mr. Marc A. Matsil
Historic Preservation Office, 3rd Fl
Phone: 609-292-3541
Fax: 609-984-0836
Deputy: Mr. Richard F. Barker
Phone: 609-292-2772
New Mexico
Ms. Katherine (Kak) Slick, SHPO
Historic Preservation Div, Ofc of Cultural
Affairs
228 East Palace Avenue
Santa Fe, NM 87503
Phone: 505-827-6320
Fax: 505-827-6338
E-mail: kslick@oca.state.nm.us
Deputy: Jan Biella
E-mail: jbiella@lvr.state.nm.us
Deputy: Dorothy Victor
E-mail: dvictor@lvr.state.nm.us
New York
Ms. Bernadette Castro, SHPO
Parks, Recreation & Historic
Preservation
Agency Building #1, Empire State Plaza
Albany. NY 12238
Phone: 518-474-0443
Historic Preservation Staff:
Ms. Ruth L. Pierpont, Director
Bureau of Field Services
NY State Parks, Rec. & Hist. Pres.
Peebles Island PO 189
Waterford, NY 12188-0189
Phone: 518-237-8643 x 3269
Fax:518-233-9049
E-mail: ruth.pierpont@oprhp.state.ny.us
North Carolina
Dr. Jeffrey J. Crow SHPO
Division of Archives & History
4610 Mail Service Center
Raleigh, NC 27699-4610
Phone:919-733-7305
Fax:919-733-8807
E-mail: jeffrey.crow@ncmail.net
Deputy: Mr. David Brook
Historic Preservation Office
4617 Mail Service Center
Raleigh, NC 27699-4617
Phone:919-733-4763
North Dakota
Mr. Merlan E. Paaverud, Jr., SHPO
State Historical Society of North Dakota
612 E. Boulevard Ave.
Bismarck, ND 58505
Phone: 701-328-2666
Fax: 701-328-3710
E-mail: mpaaverud@state.nd.us
Deputy: Ms. Fern E. Swenson
Phone:701-328-2672
E-mail: fswenson@state.nd.us
Northern Mariana Islands,
Commonwealth of the
Ms Mary Margaret (Maggie) Sablan,
Acting HPO
Dept of Community & Cultural Affairs
Div Historic Preservation, Airport Road
Saipan, MP 96950
Phone: 670-664-2120/2125
Fax:670-664-2139
Ohio
Ms. Rachel M. looker, SHPO
Ohio Historic Preservation Office
Ohio Historical Society
567 East Hudson Street
Columbus, OH 43211-1030
Phone: 614-298-2000
Fax: 614-298-2037
E-mail: rtooker@ohiohistory.org
Deputy: Mr. Franco Ruffini
E-mail: fruffini@ohiohistory.org
Oklahoma
Dr. Bob L. Blackburn, SHPO
Oklahoma Historical Society
2100 N.Lincoln Blvd.
Oklahoma City, OK 73105
Phone: 405-521-2491
Fax: 405-521-2492
Deputy: Ms. Melvena Thurman Heisch
State Historic Preservation Office
2704 Villa Prom, Shepherd Mall
Oklahoma City, OK 73107
Phone: 405-522-4484
Fax:405-947-2918
E-mail: mheisch@ok-history.mus.ok.us
Mr. Michael Carrier, SHPO
State Parks & Recreation Department
Deputy: Mr. James Hamrick
Phone: 503-378-4168 x231
Fax: 503-378-6447
E-mail: james.hamrick@state.or.us
Palau. Republic of
Ms. Victoria N. Kanai, HPO
Ministry of Community & Cultural Affairs
P.O. Box 100
Koror, PW 96940
Phone: 011-680-488-2489
Fax: 680-488-2657
Pennsylvania
Pennsylvania Historical & Museum
Comm
Bureau for Historic Preservation
Commonwealth Keystone Bldg, 2nd
Floor
440 North Street, 2nd Floor
Harrisburg, PA 17120-0093
Phone: 717-705-4035
Fax:717-772-0920
Deputy: Ms. Jean Cutler
E-mail: jecutler@state.pa.us
Puerto Rico. Commonwealth of
Ms. Enid Torregrosa De La Rosa,
SHPO
State Historic Preservation Office
PO Box 9066581
San Juan, PR 00906-6581
Phone: 787-721-3737
Fax: 787-722-3622
E-mail: etorregrosa@prshpo.gobierno.pr
Deputy: Elizabeth Sola Oliver
E-mail: esola@prshpo.gobierno.pr
No listings for Q
Rhode Island
Mr. Frederick C. Williamson, SHPO
Rhode Island Historic Preservation &
Heritage Comm
Old State House, 150 Benefit St.
Providence, Rl 02903
Phone: 401-222-2678
Fax:401-222-2968
Deputy: Mr. Edward F. Sanderson
E-mail: esanderson@preservation.ri.gov
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South Carolina
Dr. Rodger E. Stroup, SHPO
Department of Archives & History
8301 Parklane Road
Columbia, SC 29223-4905
Phone: 803-896-6100
Fax: 803-896-6167
Deputy: Ms. Mary W. Edmonds, 803-
896-6168
E-mail: edmonds@scdah.state.sc.us
South Dakota
Mr. Jay D. Vogt, SHPO
State Historic Preservation Office
Cultural Heritage Center
900 Governors Drive
Pierre, SD 57501
Phone: 605-773-3458
Fax: 605-773-6041
E-mail: jay.vogt@state.sd.us
Tennessee
Ms. Betsy L. Child, SHPO
Dept of Environment and Conservation
401 Church Street, L & C Tower 21st
Floor
Nashville, TN 37243-0435
Phone:615-532-0109
Fax: 615-532-0120
Deputy: Mr. Herbert L. Harper
Tennessee Historical Commission
2941 Lebanon Road
Nashville, TN 37243-0442
Phone: 615-532-1550
Fax:615-532-1549
E-mail: herbert.harper@state.tn.us
Texas
Mr. F. Lawerence Oaks, SHPO
Texas Historical Commission
P.O. Box 12276
Austin, TX 78711-2276
Phone: 512-463-6100
Fax:512-463-8222
E-mail: l.oaks@thc.state.tx.us
Deputy: Mr. Terry Colley
Phone: 512-463-6100
E-mail: terry.colley@thc.state.tx.us
Deputy: Mr. Stanley O. Graves, Dir
Architecture Div
Phone: 512-463-6094
Fax: 512-463-6095
E-mail: stan.graves@thc.state.tx.us
Deputy: Dr. James E. Bruseth, Dir
Antiquities Prot
Phone: 512-463-6096
Fax: 512-463-8927
E-mail: jim.bruseth@thc.state.tx. us
Utah
Mr. Wilson Martin, SHPO
Utah State Historical Society
300 Rio Grande
Salt Lake City, UT 84101
Phone: 801-533-3500
Fax: 801-533-3503
E-mail: wmartin@utah.gov
Deputy: Mr. Roger Roper, Historic
Preservation
Phone: 801-533-3561
E-mail: rroper@utah.gov
Deputy: Mr. Jim Dykman,
Antiquities/Archeology
Phone: 801-533-3555
E-mail: jdykman@utah.gov
Vermont
Ms. Emily Wadhams, SHPO
Vermont Division for Historic
Preservation
National Life Building, Drawer 20
Montpelier, VT 05620-0501
Phone:802-828-3211
E-mail: emily.wadhams@state.vt.us
Deputy: Mr. Eric Gilbertson, Director
Phone: 802-828-3043
Fax: 802-828-3206
E-mail: ergilbertson@dca.state.vt.us
Virgin Islands
Mr. Dean C. Plaskett, Esq., SHPO
Department of Planning & Natural
Resources
Cyril E. King Airport
Terminal Building — Second Floor
St. Thomas, VI 00802
Phone: 340-774-3320
Fax: 340-775-5706
State Historic Preservation Office:
Mr. Myron Jackson, Director
17 Kongens Gade
Charlotte Amalie
St. Thomas, VI 00802
Deputy: Ms. Claudette C. Lewis
Phone: 340-776-8605
Fax: 340-776-7236
Ms. Kathleen Kilpatrick, SHPO
Department of Historic Resources
2801 Kensington Avenue
Richmond, VA 23221
Phone: 804-367-2323
Fax: 804-367-2391
E-mail: kkilpatrick@dhr.state.va.us
Washington
Dr. Allyson Brooks SHPO
Office of Archeology & Historic
Preservation
PO Box 48343
Olympia, WA 98504-8343
Phone: 360-586-3065
1063 S Capitol Way, Suite 106
Olympia, WA 98501
Phone: 360-586-3064
Fax: 360-586-3067
E-mail: allysonb@acted.wa.gov
Deputy: Mr. Greg Griffith
E-mail: gregg@cted.wa.gov
West Virginia
Ms. Nancy Herholdt, SHPO
West Virginia Division of Culture &
History
Historic Preservation Office
1900 Kanawha Boulevard East
Charleston, WV 25305-0300
Phone: 304-558-0220
Fax: 304-558-2779
Deputy: Ms. Susan Pierce
E-mail: susan.pierce@wvculture.org
Wisconsin
Ms. Alicia L. Goehring, SHPO
Wisconsin Historical Society
816 State Street
Madison Wl 53706
Phone: 608-264-6500
Fax: 608-264-6404
E-mail: algoehring@whs.wisc.edu
Wyoming
Mr. Richard Currit, SHPO
Wyoming State Hist. Pres. Ofc.
2301 Central Avenue, 3rd Floor
Cheyenne, WY 82002
Phone: 307-777-5497
Fax: 307-777-3543
E-mail: rcurri@state.wy.us
Deputy: Mary M. Hopkins, Cult Records
Phone: 307-766-5324
E-mail: hopkins@uwyo.edu
No listings for X, Y or Z
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Tribal Historic Preservation Offices
8/18/2003
Mr. Robert Cast
Caddo Tribe of Oklahoma
Tribal Historic Preservation Office
P.O. Box 487
Binger, OK 73009
(405) 656-2901
Mr. James Picotte
Cheyenne River Sioux Tribe
P.O. Box 590
Eagle Butte, SD 57625
(605) 964-7554
Ms. Marcia Pablo
Confederated Salish and Kootenai Tribes of the
Flathead Indian Nation
Tribal Preservation Office
P.O. Box 278
Pablo. MT 59855
(406) 675-2700
Dr. Manfred Jaehning
Confederated Tribes of the Umatilla Indian
Reservation
P.O. Box 638
Pendleton, OR 97801
(541)276-3447
Mr. James Bird
Eastern Band of Cherokee Indians
Cultural Resources Department
Qualla Boundary P.O. Box 455
Cherokee, NC 28719
(828)497-1594
Mr. Brian Bisonette
Lac Courte Oreilles Band of Lake Superior Chippewa
Indians of Wisconsin
Tribal Historic Preservation Office
13394 W. Trepania Road
Hayward, Wl 54843
(715)634-0092
Mr. Gerald White
Leech Lake Band of Chippewa Indians
6530 Hwy 2 NW
Cass Lake, MN 56633
(218)335-2940
Dr. Wenonah G. Haire
Catawba Indian Nation
Catawba Cultural Preservation Project
611 East Main Street
Rock Hill, SC 29730
(803) 328-2427
Ms. Joan Mitchell
Chippewa Cree Tribe of the Rocky Boy's Reservation
RR1 #544
Box Elder, MT 59521
(406) 395-4147
Ms. Camille Pleasants
Confederated Tribes of the Colville Reservation
Archaeology and History Department
P.O. Box 150
Nespelem.WA 99155
(509) 634-2654
Mr. Robert Brunoe
Confederated Tribes of the Warm Springs
Reservation in Oregon
Department of Cultural Resources
P.O. Box C
Warm Springs, OR 97761
(541)553-2006
Ms. Loretta Jackson
Hualapai Tribe
P.O. Box 310
Peach Springs, AZ 86434
(928) 769-2224
Ms. Kelly Jackson
Lac du Flambeau Band of Lake Superior Chippewa
Indians
P.O. Box 67
Lac du Flambeau, Wl 54538
(715)588-2139
Ms. Janine Bowechop
Makah Tribe
Makah Cultural and Research Center
P.O. Box 160
Neah Bay, WA 98357
(360) 645-2711
Ms. Betty Jo Wozniak
Menominee Indian Tribe of Wisconsin
P.O. Box 910
Keshena.WI 54135
(715)799-5154
Mr. David Grignon
Menominee Indian Tribe of Wisconsin
P.O. Box 910
Keshena.WI 541350910
(715)799-5258
Ms. Donna McFadden
Mescalero Apache Tribe
P.O. Box 227
Mescalero, NM 88340
(505) 464-4494
Ms. Natalie Weyaus
Mille Lacs Band of Ojibwe Indians
43408 Oodena Drive
Onamia, MN 56359
(320)532-4181
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B/lr. John Brown
Blarragansett Indian Tribe
T.O. Box 700
Wyoming, Rl 02898
•401)364-9873
Mr. Alan Downer
Vavajo Nation
istoric Preservation Department
P.O. Box 4950
Window Rock, AZ 86515
•928)871-6437
Ms. Corina Williams
^Dneida Nation of Wisconsin
•"ribal Historic Preservation Office
P>.0. Box 365
Oneida.WI 54155
^920) 490-2096
•/Is. Stephanie Rolin
Poarch Band of Creek Indians
311 Jack Springs Road
ktmore, AL 36502
1251)368-9136
•Ms. Lisa Bresette
•ted Cliff Band of Lake Superior Chippewas
88385 Pike Road, Highway 13
fayfield.WI 54814
'15)779-3648
«s. Celeste Vigil
;okomish Indian Tribe
541 Tribal Center Road
Shelton, WA 98584
C60) 426-4232
s. Rhonda Foster
Squaxin Island Tribe
?E 70 Squaxin Lane
helton, WA 98584
!60) 432-3850
•Ms. Marnie Atkins
•"able Bluff Reservation - Wiyot Tribe
tribal Historic Preservation Office
1000 Wiyot Drive
toleta, CA 95551
707) 733-5055
^Ar. Earl Barbry, Jr.
•"unica-Biloxi Indians of Louisiana
•>.O. Box 331
Marksville, LA 71351
C 18) 253-8174
s. Laurie Perry
Wampanoag Tribe of Gay Head (Aquinnah)
«ribal Historic Preservation Officer
3 Black Brook Road
quinnah, MA 025359701
(508) 645-9265
B)r. Thomas Gates
^furok Tribe
1034 Sixth Street
fjreka, CA 95501
07) 482-1822
Ms. Bambi Kraus
National Association of Tribal Historic Preservation
Officers
P.O. Box 19189
Washington, DC 200369189
(202) 628-8476
Mr. Gilbert Brady
Northern Cheyenne Tribe
P.O. Box 128
Lame Deer, MT 59043
(406) 477-6035
Mr. Donald Soctomah
Passamaquoddy Tribe
Tribal Historic Preservation Office
P.O. Box 102
Princeton, ME 04668
(207) 796-0822
Dr. Jonathan Damp
Pueblo of Zuni
Heritage and Historic Preservation Office
P.O. Box 339
Zuni, NM 87327
(505)782-4814
Ms. Kathleen Mitchell
Seneca Nation of Indians
Seneca-lroquois National Museum
794-814 Broad Street
Salamanca, NY 14779
(716)945-1738
Mr. Randy Abrahamson
Spokane Tribe of Indians
P.O. Box 100
Wellpinit, WA 99040
(509)258-4315
Mr. Tim Mentz
Standing Rock Sioux Tribe
P.O. Box D
Fort Yates, ND 58538
(701)854-2120
Timbisha Shoshone Tribe
P.O. Box 206
Death Valley, CA 923280206
(760) 786-2374
Mr. Kade Ferris
Turtle Mountain Band of Chippewa
P.O. Box 900
Belcourt, ND 58316
(701)477-2641
Mr. John Welch
White Mountain Apache Tribe
Heritage Program
P.O. Box 507
Fort Apache, AZ 85926
(928) 338-3033
For a clickable map of THPO's by tribe visit:
http://www2.cr.nps.gov/tribal/tribaloffices.htm
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ATTACHMENT 3
36 CFR PART 800
-------
7-
Tuesday,
December 12, 2000
Part H
Advisory Council on
Historic Preservation
36 CFR Part 800
Protection of Historic Properties; Final
Rule
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77698 Federal Register/Vol. 65, No. 239/Tuesday, December 12, 2000/Rules and Regulations
ADVISORY COUNCIL ON HISTORIC
PRESERVATION
36 CFR Part 800
RIN3010-AA05
Protection of Historic Properties
AGENCY: Advisory Council on Historic
Preservation.
ACTION: Final rule; revision of current
regulations.
SUMMARY: The Advisory Council on
Historic Preservation is publishing its
final rule, replacing the previous rule
which implemented the 1992
amendments to the National Historic
Preservation Act (NHPA), and improved
and streamlined the rule in accordance
with the Administration's reinventing
government initiatives and public
comment. Litigation earlier this year
challenged that previous rule. This
rulemaking has addressed questions and
concerns raised by that litigation, and
has given the public a chance to provide
input to determine how the rule has
operated and revise the rule as
appropriate. The final rule modifies the
process by which Federal agencies
consider the effects of their
undertakings on historic properties and
provide the Council with a reasonable
opportunity to comment with regard to
such.undertakings, as required by
section 106 of the NHPA. The Council
has sought to better balance the interests
and concerns of various users of the
section 106 process, including Federal
agencies, State Historic Preservation
Officers (SHPOs), Tribal Historic
Preservation Officers (THPOs), Native
Americans and Native Hawaiians,
industry, and the public.
DATES: This final rule is effective
January 11, 2001.
FOR FURTHER INFORMATION CONTACT: If
you have questions about the rule,
please call Frances Gilmore or Paulette
Washington at the regulations hotline
(202) 606-8508, or e-mail us at
regs@achp.gov. When calling or sending
e-mail, please state your name,
affiliation, and nature of your question,
so your call or e-mail can then be routed
to the correct staff person. Informational
materials about the new rule will be
posted on our web site (http://
www.achp.gov) as they are developed.
SUPPLEMENTARY INFORMATION: The
information that follows has been
divided into five sections. The first one
provides background information
introducing the agency and
summarizing the history of the
rulemaking process. The second section
highlights the changes incorporated into
the final rule. The third section
describes, by section and topic, the
Council's response to public comments
on this rulemaking. The fourth section
provides a description of the meaning
and intent behind specific sections of
the final rule. Finally, the fifth section
provides the impact analysis section,
which addresses various legal
requirements, including the Regulatory
Flexibility Act, the Paperwork
Reduction Act, the National
Environmental Policy Act, the
Unfunded Mandates Act, the
Congressional Review Act and various
relevant Executive Orders.
I. Background
The Advisory Council on Historic
. Preservation ("Council") is the major
policy advisor to the Government in the
field of historic preservation. Twenty
members make up the Council. The
President appoints four members of the
general public, one Native American or
Native Hawaiian, four historic
preservation experts, and one governor
and one mayor. The Secretary of the
Interior and the Secretary of
Agriculture, four other Federal agency
heads designated by the President, the
Architect of the Capitol, the chairman of
the National Trust for Historic
Preservation and the president of the
National Conference of State Historic
Preservation Officers complete the
membership.
This final rule sets forth the revised
section 106 process. Section 106 of the
National Historic Preservation Act of
1966, as amended, 16 U.S.C. 470f
(NHPA), requires Federal agencies to
take into account the effect of their
undertakings on properties included in
or eligible for inclusion in the National
Register of Historic Places and to afford
the Council a reasonable opportunity to
comment on such undertakings.
Through Section 211 of the National
Historic Preservation Act, the Council is
authorized to "promulgate such rules
and regulations as it deems necessary to
govern the implementation of section
106 * * * in its entirety."
After publishing two Notices of
Proposed Rulemaking (59 FR 50396,
October 3, 1994; and 61 FR 48580,
September 13,1996), the Council
published a final rule setting forth a
revised process implementing section
106 in its entirety (64 FR 27044-27084,
May 18,1999). Such rule went into
effect on June 17,1999, and superseded
the rule previously issued in 1986.
Two major forces behind that revision
process were the 1992 amendments to
the National Historic Preservation Act
(NHPA), and the Administration's
reinventing government efforts. In
October, 1992, Public Law 102-575
amended the NHPA and affected the
way section 106 review is carried out.
Among other things, the 1992
amendments:
1. Clarified that "[properties of
traditional religious and cultural
importance to an Indian tribe or Native
Hawaiian organization may be
determined to be eligible for inclusion
on the National Register." 16 U.S.C.
470a(d)(6)(A);
2. Required that "[i]n carrying out its
responsibilities under section 106, a
Federal agency shall consult with any
Indian tribe or Native Hawaiian
organization that attaches religious and
cultural significance to properties
described" above. 16 U.S.C.
470a(d)(6)(B); Also see 36 CFR
800.2(c)(3) (granting such tribes and
Native Hawaiian organizations,
"consulting party" status in the section
106 process). Implementation of this
statutory consultation requirement is
found throughout the proposed rule.
See, for example, 36 CFR 800.3(f)(2),
800.4(a)(4), 800.4(b), 800.4(c)(l),
800.5(a), 800.6(a)-(b).
3. Added a provision in the NHPA
prohibiting Federal agencies from
granting a license or assistance to
applicants who, with the intent to avoid
the requirements of section 106,
significantly adversely affected historic
properties related to the license or
assistance. In such cases, the Federal
agency can only grant the license or
assistance if it determines, after
consulting with the Council, that
circumstances justify granting the
license or assistance despite the effects
to the historic property. 16 U.S.C. 470h-
2(k). See 36 CFR 800.9(c).
4. Explicitly recognized the long-
standing practice of having Federal
agencies develop agreements to address
adverse effects of their undertakings to
historic properties. This practice had
also been recognized in the earlier, 1980
amendments, where Section 205(b) of
the NHPA was changed to state that the
Council could be represented in court
by its General Counsel regarding
"enforcement of agreements with
Federal agencies." It also clarified that
where such an agreement is not reached,
the head of the relevant Federal agency
must document his/her decision
pursuant to section 106. Such agency
head cannot delegate that responsibility.
It also provided that agreements
executed pursuant to the section 106
process would govern the relevant
Federal undertaking and all its parts. 16
U.S.C. 470h-2(l). See 36 CFR 800.6,
800.7.
5. Added a member to the Council.
This Council member would be a Native
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Federal Register/Vol. 65, No. 239/Tuesday, December 12, 2000/Rules and Regulations 77699
American or Native Hawaiian appointed
by the President. 16 U.S.C. 470i(a)(ll).
6. Explicitly clarified the fact that the
Council has authority to "promulgate
such rules and regulations as it deems
necessary to govern the implementation
of section 106 of this Act in its entirety."
16 U.S.C. 470s (emphasis added)
(highlighted text was added by the 1992
amendments); and
7. Amended the definition of the term
"undertaking," by adding "[projects,
activities, and programs] subject to State
or local regulation administered
pursuant to a delegation or approval by
a Federal agency" to the list of actions
constituting an "undertaking." 16 U.S.C.
470w(7)(D). The amended, statutory
definition of "undertaking" was
adopted verbatim in the rule. 36 CFR
800.16(y).
Additionally, as part of the
Administration's National Performance
Review and overall regulatory
streamlining efforts, the Council
undertook a review of its regulatory
process to identify potential changes
that could improve the operation of the
section 106 process and conform it to
the principles of the Administration. A
description of the Council's revision
efforts from 1992, which led to the final
rule that went into effect in 1999 ("1999
rule"), is found in its preamble (64 FR
27044-27084, May 18, 1999). That
preamble extensively details its history,
purpose, intent, and response to public
comment.
On February 15, 2000, the National
Mining Association ("NMA") filed a
lawsuit challenging the 1999 rule.
Among other things, the lawsuit alleged
violations of the Appointments Clause
of the Constitution and certain
provisions of the Administrative
Procedure Act pertaining to rulemaking.
After assessing the allegations contained
in the lawsuit, the Council decided to
move forward with the present
rulemaking process that culminates
today with this final rule. The Council
believed that this rulemaking would
provide an opportunity to address
assertions about the procedural
adequacy of the promulgation of the
1999 rule, including those about the
participation of the National Trust for
Historic Preservation ("Trust") and the
National Conference of State Historic
Preservation Officers ("NCSHPO"), as
Council members, in the adoption of the
final, revised rule. It would also give the
public a chance to provide input to
determine how the rule has operated
and revise the rule as appropriate. This
rulemaking does not evidence Council
agreement with the merits of the
allegations but, rather, the Council's
desire to remove these issues from
litigation.
Accordingly, at the June 23, 2000
Council meeting in Maine, the
Chairman of the Council asked the
Council members to take two actions.
The first action was a new vote on the
adoption of the 1999 rule, without the
participation of the Trust and NCSHPO.
The Council members voted 16-0 in
favor of the 1999 rule, with the Trust
and NCSHPO voluntarily recusing
themselves from the yote and any
deliberation on it.
The second action was a vote on
undertaking the present rulemaking
process, using the text of the 1999 rule
as the proposed rule. Again, the Council
members voted in favor of moving
forward with the rulemaking by a vote
of 16-0, with the Trust and NCSHPO
voluntarily recusing themselves from
the vote and any deliberation on it.
Accordingly, on July 11, 2000 the
Council published a proposed rule for
public comment (65 FR 42833-42849).
The public was given a 30-day period,
until August 10, in which to comment
on the proposed rule. All those who
filed a timely request for an extension
of the comment period were given until
August 31 to submit their comments.
We believe the extension granted was
reasonable in light of the circumstances.
As stated above, the text of the
proposed rule submitted for public
comment was the same as the one for
the final rule that had been in effect for
more than a year. That final rule, in
turn, was the product of a rulemaking
process that afforded the public ample
opportunity, throughout six years, to
participate and comment. The preamble
of that 1999 final rule (found at 64 FR
27044-27084, May 18, 1999) extensively
details its history, purpose, intent, and
response to public comment. It is a
lengthy document and will not be re-
printed here.
After the close of the public comment
period, the Council, minus the Trust
and NCSHPO, considered the comments
and incorporated changes into a draft
rule as was deemed appropriate. On
November 17, 2000, the Council voted
on whether to adopt the draft rule as a
final rule. As stated before, the Council
members representing the Trust and
NCSHPO had already recused
themselves from the rulemaking process
and proposed suspension. They
accordingly removed themselves from
the table and took no part in the
deliberations and vote on this matter.
The Council voted to adopt the draft
rule as the final rule now being
published, by a vote of 17 for, 1
abstention, and none against.
The Council reiterates that the Trust
and NCSHPO did not participate in any
way whatsoever in the deliberations,
decisions, votes, or any other Council
activities regarding this rulemaking.
Their only participation in this
rulemaking took the form of a written
comment filed by NCSHPO on the
proposed rule. Such comment was
submitted by NCSHPO, as a member of
the general public, during the
commenting period provided by the
notice of proposed rulemaking.
II. Highlights of Changes
The Council retained the core
elements of the section 106 process that
have been its hallmark since 1974. The
Council also retained the major
streamlining improvements that were
adopted in June, 1999. Changes adopted
were primarily modifications to remove
operational impediments in the process
and clarifications of certain provisions
and terms. In addition, a number of
technical and informational edits were
made throughout the rule. Major
changes are as follows:
1. Clarification of the Role of State
Historic Preservation Officers.
Section 800.2(c)(l) was amended to
acknowledge the statutory responsibility
of SHPOs to cooperate with agencies,
local governments, and organizations
and individuals to ensure that historic
properties are considered in planning.
2. Clarification of the Role of Indian
Tribes and Tribal Historic Preservation
Officers
Section 800.2(c)(2) was completely
rewritten to better distinguish the roles
of Indian tribes that had assumed the
responsibilities of SHPOs on their tribal
lands under section 101(d)(2) of the Act
from that of Indian tribes which had
not. The Council notes that these
amendments do not change the
substantive role of non-101(d)(2) Tribes
or any other party in the section 106
process under the proposed rule, but
simply provide for a clearer rule.
Section 800.2(c)(2)(ii) was also amended
to clarify that the Act requires agency
consultation with Indian tribes and
Native Hawaiian organizations that
attach religious and cultural
significance to historic properties
regardless of whether the historic
properties are located on or off tribal
land. Section 800.2(c)(2)(ii)(B) was
amended to better reflect the
sovereignty of Indian tribes over their
tribal lands.
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77700 Federal Register/Vol. 65, No. 239/Tuesday, December 12, 2000/Rules and Regulations
3. More Flexibility To Involve
Applicants
Section 800.2(c)(5) was amended to
resolve a major problem regarding the
participation of applicants for Federal
assistance or permission in the Section
106 process. Under the change, an
agency may authorize a group of
applicants to initiate the section 106
process, rather than being required to
grant individual authorizations.
Language was also added to clarify that
such authorizations do not relieve the
Federal agency of its obligations to
conduct government-to-government
consultation with Indian tribes.
4. Clarification of Undertakings Covered
by the Section 106 Process
Section 800.3(a)(l) was amended to
better state the premise of the rule that
only an undertaking that presents a type
of activity that has the potential to affect
historic properties requires review. The
previous language implied that making
such a determination related to the .
circumstances of the particular
undertaking, rather than the more
generic analysis of whether the type of
undertaking had the potential to affect
historic properties.
5. Reinforcement of the Federal
Agency's Responsibilities in Identifying
Historic Properties
Section 800.4(a) was amended to
assert that determinations in this
subsection are made unilaterally by the
Agency Official, after consultation with
SHPO/THPO. Some had misunderstood
the previous version as providing for
consensus determinations.
6. Revision of the Role of Invited
Signatories
Section 800.6(c)(2) was rewritten to
remove confusion about the ability of
the Federal agency to invite other
parties to become formal signatories to
Memoranda of Agreement and to clarify
their rights and responsibilities as
invited signatories. Also regarding
memoranda of agreement, § 800.6(c)(8)
was amended to provide that the option
for their termination exists not only
when one party simply cannot comply
with its terms, but also when the terms
are not being followed for whatever
reason.
7. Revision of the Use of Environmental
Impact Statements (EIS) To Comply
With Section 106
Section 800.8(c)(4) was rewritten to
more clearly state the actions a Federal
agency must take in making a binding
commitment in an NEPA documents to
carry out measures to avoid, minimize
or mitigate adverse effects and thereby
use the NEPA process to comply with
section 106 requirements.
8. Redefinition of the Role of the
Council When Improving the Operation
of Section 106
Section 800.9(d)(2) was amended to
require the Council to participate in
section 106 reviews in a manner parallel
to SHPOs/THPOs when the Council
decides to join individual case reviews
it would not otherwise engage in. This
occurs when the Council has
determined that section 106
responsibilities are not being properly
carried out by an agency or SHPO/
THPO and the Council's participation
can remedy the problem.
9. Modification of Documentation
Standards
Section 800.11(a) was amended to
state that a Federal agency's
responsibility to provide documentation
was limited by legal authority and the
availability of funds. Section
800.11(c)(2) was also amended to
require Federal agencies to include the
views of die SHPO/THPO when
consulting with the Council on
withholding confidential information.
10. Inclusion of National Register
Eligibility Assessment in Consideration
of Post-Review Discoveries
Section 800.13(b)(3) was amended to
add a requirement that a Federal agency
seeking expedited section 106 review
for properties discovered after approval
of an undertaking provide information
on the eligibility of affected properties
for the National Register.
11. Increased Flexibility for
Programmatic Agreements
Section 800.14(b) was amended by the
addition of a new section authorizing
the Council to create "prototype
programmatic agreements" which could
be executed by a Federal agency and an
SHPO/THPO without Council
participation. This would permit
routine programmatic agreements that
follow an accepted model to be
completed more expeditiously.
12. Improved Consideration of
Stakeholder and Public Views on
Proposed Exemptions
Section 800.14(c)(5) was amended to
add Council consideration of the views
of SHPOs/THPOs and others consulted
when determining whether to approve
an exemption from the section 106
process. The Council was also required
to notify the agency and SHPOs/THPOs
of it decision on the requested
exemption.
13. More Flexibility for Federal Agencies
When Consulting With Indian Tribes on
Nationwide Program Alternatives
Section 800.14(f) was amended to
reemphasize a Federal agency's
obligation under various authorities to
consult with Indian tribes and Native
Hawaiian organizations when
developing nationwide program
alternatives, but to acknowledge that it
is the agency's responsibility to
determine the appropriate means of
meeting those obligations.
in. Response to Public Comments
Following is a summary of the public
comments received in response to the
notice of proposed rulemaking, along
with the Council's response. The public
comments are printed in bold typeface,
while the Council response follows
immediately in normal typeface. They
are organized according to the relevant
section of the proposed rule or their
general topic.
Section 800.1
The Council should expand the
definition of SHPO responsibilities
beyond cooperation with the Secretary,
Advisory Council and Federal agencies
to include explicit reference to
organizations and individuals, such as
regulatees and their consultants. The
Council noted that such language was
warranted by the NHPA, and therefore
inserted language regarding such SHPO
duties per section 101{b)(3)(F) of the
NHPA.
The very last sentence of this section
should be changed to: "The Agency
Official is encouraged to initiate the
section 106 process as early as
practicable in the undertaking's
planning so that it may consider
impacts on historic resources." The
language on the proposed rule stated
that the Agency Official "shall ensure
that the section 106 process is initiated
early in the undertaking's planning * *
*" The Council disagreed with the
commenter's proposed change since it is
crucial that agencies initiate the section
106 process at a point where
alternatives have not yet been
foreclosed. Otherwise, the review would
be rendered meaningless.
Council is urged to preserve
flexibility provision under the 1986
regulations, which stated: "The Council
recognizes that the procedures for the
Agency Official set forth in these
regulations may be implemented by the
Agency Official in a flexible manner
reflecting different program
requirements, as long as the purposes of
section 106 of the Act and these
regulations are met." Specific areas of
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flexibility are incorporated in the
proposed rule to embody the general
flexibility term found in the 1986 rule.
Among these are: phased identification,
compression of steps, NEPA
coordination, and the various program
alternatives under § 800.14 of the rule.
Section 800.2(a)
The regulations should state that
Federal agencies that authorize
applicants to initiate consultation are
still responsible for their government to
government relationships with tribes.
The Council agreed and incorporated
such change at § 800.2(c)(5) since the
statement comports with Executive
Orders and Memoranda regarding the
government-to-government
responsibilities of Federal agencies
towards federally recognized tribes.
Requirements of § 800.14 preclude
implementation of § 800.2(a) insofar as
it calls for utilization of the agency's
existing procedures to fulfill
consultation requirements. The Council
disagreed. The comment failed to
consider the difference between
procedures that implement 36 CFR part
800 (those under § 800.2(a)) and
procedures that actually substitute/
modify the process under 36 CFR part
800 (those under § 800.14).
Nothing in NHPA requires Federal
agencies to consult with a particular
party, thus, while such consultation
may be beneficial, it should be left to
the discretion of the Federal agency
under NHPA. The Council not only
believes that such consultation is
beneficial, but it also believes it has the
required authority to justify this and all
other sections of the proposed rule.
Consultation occurs in the section 106
process propounded by the rule in a
way that is fully consistent with the
statute. See, for example, the statutory
language under section 101 of the NHPA
regarding SHPO and THPO assistance to
Federal agencies in the section 106
process, the consultation requirements
with Indian tribes and Native Hawaiian
organizations under the 1992
amendments to the NHPA, and language
under Section 110 of the NHPA
ensuring that public involvement occurs
in the section 106 process. Such
consulting entities have the specialized
knowledge and interest that Federal
agencies may lack. Consultation with
these parties provides the Federal
agency with the information it needs to
make reasoned assessment of how its
undertakings affect historic properties.
Furthermore, it is clear to the Council
through its years of experience, that
such consultation is necessary and that
Federal agencies heavily rely on such
assistance (in particular that of the
SHPOs). Please also refer to responses
given under the legal topics.
Federal officials (and not State, local
or tribal government officials) are
responsible for taking into account the
effects of their undertakings on historic
properties. Furthermore, it is
inappropriate to mention Section 112 of
the NHPA in this section since the
Council has no authority to enforce it.
The Council agrees that the
responsibility for section 106
compliance lies with Federal agencies,
including the "take into account"
responsibility. The Council clarifies that
section 112 is merely restated in the rule
for reference purposes (as opposed to
enforcement).
ACHP refusal to take a position
regarding delegation of authority have
resulted in SHPOs disregarding FCC's
jurisdiction and emphasizes on
enforcement over historic preservation.
During the time frame of this
rulemaking, the Council issued a
memorandum to the FCC, all SHPOs
and the telecommunications industry
clarifying its position on delegations of
authority. This and several other issues
mentioned by the telecommunications
industry in this rulemaking process
have been or are in the process of being
addressed through ongoing discussions
with the industry, the FCC and SHPOs.
These discussions commenced before
the present rulemaking process. Such
ongoing discussions are referred
hereinafter as "Telecommunications
Working Group."
Although section 101 of the NHPA
establishes an advisory role for SHPOs
to assist Federal agencies, the rules fail
to establish consistent objective
standards for SHPOs to apply in
carrying out their duties. It undermines
the ability of SHPOs and Federal
agencies to adequately serve the
Council's goal of protecting historic
properties. The Council believes that
the rule contains adequate standards
that guide SHPOs in carrying out their
functions. These standards can be found
in various parts of the rule (e.g., criteria
of adverse effect under § 800.5(a), and
various definitions of terms under
§ 800.16). Further standards, such as the
National Register Criteria of Eligibility
(36 CFR part 63), are referenced in the
present rule, and guide SHPO duties.
Furthermore, pursuant to the NHPA, the
Department of the Interior regularly
reviews SHPO programs and ensures
such programs and their personnel have
the necessary expertise to guide their
performance of their statutory duties,
which include "to consult with * * *
Federal agencies * * * on Federal
undertakings that may affect historical
properties." 16 U.S.C. 470a(b)(3)(I).
"Delegation authority" should be
expanded to include "approved" state
agencies and other pre-approved
designees to conduct section 106
coordination on behalf of the Agency
Official. The Council disagrees since the
comment fails to realize that such
authority can only come through statute.
Congress specifically placed section 106
compliance responsibilities on Federal
agencies. Only Congress can shift that
responsibility. The Council is only
aware of certain Department of Housing
and Urban Development programs
containing such a statutory delegation.
Section 800.2(b)
Licensees should be recognized as
consulting parties under the
regulations. Applicants for licenses,
permits, approvals or assistance are
specifically listed in the rule as
consulting parties (see §§ 800.2(c)(5)
and 800.3(f)(l)).
Add the following to § 800.2(b)(2):
"Within 30 days of receipt of a request
for such advise, the Council shall reply
in writing with advise, or it shall reply
in writing that it will not offer advice
stating its reason(s) for so doing." This
is needed to ensure Council responds in
a timely fashion. The Council disagreed
with this proposal. Time limits, and the
consequences of not replying in time,
are already specified in the proposed
rule as needed.
Section 800.2(c)
Remove the first sentence of
§ 800.2(c)(l)(I). It is unrealistic to
charge the SHPO with "reflecting the
interests of the State and its citizens in
the preservation of their cultural
heritage." This only encourages
agencies to treat SHPO coordination as
the be-all and end-all of consultation,
even where large numbers of a State's
citizens violently disagree with a SHPO
position. The rule reasonably supports
the idea that the SHPO reflects the
interests of the State by virtue of being
a State official appointed by the elected
State Governor.
Several comments requested that the
rule distinguish the roles of Tribes that
have an approved "Tribal Historic
Preservation Officer' (THPO) pursuant
to section 101(d)(2) of the NHPA, and
those that do not. The use of the term
"THPO" for both was deemed to be
highly confusing. As stated in the
highlight of changes above, §800.2(c)(2)
was completely rewritten to better
distinguish the roles of Indian tribes
that had assumed the responsibilities of
SHPOs on their tribal lands under
section 101(d)(2) of the Act from that of
Indian tribes which had not. The
Council notes that these amendments do
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not change the substantive role of non-
101(d)(2) Tribes or any other party in
the section 106 process of the proposed
rule, but simply provide for a clearer
rule.
Many THPO's have construed this
provision to mean that they must be
invited to participate as "consulting
parties" on all undertakings affecting
properties of traditional religious and
cultural importance, a position at odds
with the NHPA. It is requested that the
role of tribal representatives and
THPO's in consultation off tribal land
to be clarified consistent with the
statute. The Council believes that
section 101(d){6)(B) of the NHPA clearly
gives federally recognized tribes and
Native Hawaiian organizations a right to
be consulted regarding historic
properties of religious and cultural
significance to them. The cited section
of the statute does not qualify that right
depending on whether the historic
property is located on or off tribal lands.
It also does not qualify that right
depending on whether the tribe has a
THPO certified pursuant to section
101(d)(2)oftheNHPA.
Too difficult to implement
requirements of § 800.2(c)(2) when the
project is not on reservation land. It is
unreasonable for each Federal agency
to develop on their own information as
to which tribe(s) may be associated
with specific geographic areas. While
the Council acknowledges certain initial
difficulties in identifying tribes to
consult outside tribal lands, it believes
the statute is clear in mandating such
consultation regardless of the location of
the historic property. The Council and
the National Park Service are currently
conducting a guidance project to assist
agencies in identifying Indian tribes to
be consulted.
Regulations do not create a
"consultative" role for SHPO staff who
would prefer to spend their time and
efforts preserving historic properties
rather than enforcing procedures on
telecommunications projects. The
SHPOs have a specific statutory duty to
consult with Federal agencies and assist
them with their section 106 duties. 16
U.S.C. 470a(b)(3)(I). Moreover, the
SHPOs do spend their time directly
preserving historic properties through
their involvement in the section 106
process. The Council has not received
contrary views from any SHPOs.
Finally, similar issues of SHPO/
telecommunications industry work in
the section 106 process is being
addressed by the ongoing
Telecommunications Working Group.
Definition of "additional consulting
parties" is too open ended, since it
makes it possible for anyone who can
claim a "concern" to become a
consulting party, adding delays and
expenses to the process (§ 800.2(c)(6)).
Even if Council had authority over this
issue, at a minimum the rule should
require a demonstration of some form
of protectable interest similar to the
concept of legal standing. Standards for
additional consulting parties adequately
balance the project's need for
expediency and the right of those with
defined interests in getting involved in
the process. To ensure this provision is
. not abused, the rule gives the Agency
Official the ultimate discretion to invite
additional consulting parties or not. The
Council believes the Agency Official is
in a better position to balance the
benefits of including these parties
against the costs of so doing. The
Agency Official will be able to do this
on a case by case basis, according to the
particulars of the specific undertaking at
issue.
Use of the phrase "SHPO/THPO" has
led to misunderstandings concerning
the different regulatory roles of the
SHPOs and THPOs in consultation on
projects located off tribal lands.
Guidance is needed to clarify these
roles. The Council believes the rule is
clear in that Federally recognized tribes
have to be consulted regarding historic
properties of cultural and religious
significance to them, regardless of the
location of such properties. With the
changes regarding the use of the term
THPO, there should be no confusion as
to consultative rights of tribes.
Expanded definition of consulting
parties has made it difficult and time
consuming for agency officials to
establish an appropriate consultation
process. Guidelines for determining
formal consulting parties should be
developed. The Council believes that
§§ 800.2 and 800.3(f) set forth clear
standards for who should be a
consulting party, and a clear process for
who makes the determination and
when. A further expansion on this topic
to aid Federal agencies is better suited
for guidance.
Regulations give tribes a secondary
role to SHPOs with respect to tribal
cultural and sacred properties which
are not on tribal lands. The 1992
Amendments were intended to provide
tribes with rights at least equivalent to
SHPOs regardless of where the
properties are located. Tribes want
same consultation rights as SHPO for
tribal cultural properties located off
tribal lands. SHPO role is a creation of
the regulations and is not required in
the Act. The Council does not believe
that Tribes have a secondary role to
SHPOs. They do have a different role
however. The rule recognizes that
Tribes are entitled to consult regarding
historic properties of religious and
cultural significance to them that may
be affected by an undertaking. The
SHPO is also entitled to consult,
consistent with the definition of SHPO
responsibilities in the Act, regarding
historic properties. 16 U.S.C. 470a(b)(3).
The regulations assume that the
THPO is a regulatory/executive body of
a tribal government. Federal agencies
believe that consulting with the THPO
or tribal cultural resource manager
fulfills the government-to-government
responsibility. Agencies need to become
familiar with this responsibility. The
regulations fail to address or identify
the process for government-to-
government consultation. It is the duty
of the relevant Federal agency (and not
the Council) to specify how they meet
their government-to-government
responsibilities. See Executive
Memorandum on Government-to-
Government Relations with Native
American Governments, dated April 29,
1994.
Granting SHPOs a role on tribal
lands where there is no 101(d)(2) THPO
is an intrusion on tribal sovereignty
and is hypocritical since tribes are not
given an equivalent role for their
traditional cultural and sacred
properties off tribal lands. The Council
disagrees. Tribes that attach religious
and cultural significance to historic
properties must be invited to consult,
regardless of where the property is
located. The proposed rule follows
statutory roles given to Tribes and
SHPOs. See 16 U.S.C. 470a in general,
and 470a(d)(2)(D)(iii).
The regulations provide a significant
role for the THPO, above the tribal
government leader. Federal agencies
now have an "out" to avoid the
government-to-government
responsibility. Agencies need to learn,
and ACHP trainers need to emphasize,
the difference. The regulations should
include a section that requires agencies
to develop a process that recognizes the
THPO role. The Council reasonably
assumes 101(d)(2) THPOs are the
appropriate contact for government to
government relations. Nevertheless, the
Council will confirm this statement
with the Department of the Interior.
800.2(c)(3)(vi) is confusing. This
allows for the SHPO and Council to
ignore and avoid tribal involvement. It
also provides an outlet for Federal
agencies to disregard Federal law,
E.O.s, etc. Finally, the SHPO then
becomes a decision maker on tribal
lands. This provision was requested by
Tribal comments that wanted to avoid
Tribes being required to sign an
agreement if they chose not to sign it. A
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waiver under §800.2(c)(3)(vi) requires
positive action from the Tribe, and
therefore does not present a loophole to
be used by Federal agencies or any other
entities.
A tribe that does not have a 101(d)(2)
THPO does not have the same authority
as a tribe that does. This gives the
SHPO the ability to come onto
reservation lands and dictate how the
tribe handles its preservation program
and individual projects. Would like the
regulations to provide tribes the option
of inviting the SHPO into consultation
on tribal lands. Section 101(d)(2) of the
NHPA provides for THPO substitution
of the SHPO on tribal lands if approved
by DOI. If there is no approved 101(d)(2)
THPO, NHPA provides that the SHPO
shall consult with Federal agencies on
any undertaking within the State. Also,
NHPA specifically states the right of
private owners of land within tribal
boundaries to request SHPO
involvement in undertakings on tribal
lands. See section 470a(d)(2)(D)(iii) of
-NHPA.
Change last sentence to: Nothing in
this part alters, repels, interprets, or
modifies tribal sovereignty or preempts,
modifies, or limits the exercise of any
such rights. This change would delete
"is intended to . . ." The Council
agreed with such a change since it was
needed to more properly accord with
tribal sovereign rights and the original
intent of the section.
Section 800.2(c)(5)
Several comments requested that the
rule be changed so that Federal
agencies will not be required to give
specific authorization for each
applicant to initiate consultation with
SHPO/THPOs. The Council supported
amending the proposed rule to allow
agencies to authorize applicants to
initiate consultation on a broader basis
than individual authorizations.
Because of the time and resources
required to consult with Tribes, more
Federal agencies are delegating their
consultation responsibilities, without
guidance, to consultants, applicants
and others. Many tribes, however,
refuse to interact with parties other
than the Federal agency or agency
director. The Council responds to this
concern by clarifying that such
insistence is due to the Federal
agencies' government-to-government
responsibilities under Executive Orders
and Memoranda.
Delegating authority to applicants is
delegating Federal agency
responsibility. This process lacks the
integrity of upholding the intent of laws
and EOs. Generally, tribes are insisting
on formal consultation with Federal
agencies, not applicants. Federal
agencies are required to consult with
Indian Tribes on a government-to-
government basis pursuant to Executive
Orders, Presidential memoranda, and
other authorities. The proposed rule
therefore was amended to acknowledge
this responsibility. The authorization to
applicants to initiate consultation does
not include consultation with Tribes.
Section 800.2(d)
Proposed part 800 elaborate
procedures for public participation go
well beyond the provisions of NHPA.
NHPA does not require separate public
notice and comment requirements at
every stage of the review process.
Recommend that part 800 recognize
Federal agencies' existing public
participation procedures and permit
agencies to rely on those procedures in
addressing adverse effects only. The
rule does not require separate public
notice and comment requirements at
each step. Also, the proposed rule
already allows for use of agency
procedures. Nevertheless, it is simply
impractical and illogical to solely rely
on agency procedures for public
involvement regarding section 106 if
such procedures fail to address historic
preservation issues.
Public participation provisions are
an improvement over the 1996
proposed rule, but still invite problems.
Council is not vested with authority to
regulate public participation. Section
106 does not address this topic. Council
has no authority to vest anyone, but
itself, with a reasonable opportunity to
comment on the Federal undertaking.
The Council believes it has the required
authority to justify this and all other
sections of the proposed rule. Please
refer to our response regarding legal
authority, below.
This provision lies outside of the
NHPA section 106 authority, and is a
back door mechanism to impose upon
Federal agencies the Council's
interpretation of the interested public
instead of leaving the interpretation of
that role to the agencies, in consultation
with the Secretary of Interior as
provided for in section 110(a)(2)(E) of
the NHPA. Deleting this provision is
recommended. The Council disagrees.
As stated below, the Council has the
required authority to justify this and all
other sections of the proposed rule.
Furthermore, § 800.2(d)(3) allows the
use of agency procedures to the extent
they provide pertinent information on
historic preservation.
Section 800.3(a)
Several comments requested
clarification that under § 800.3(a) the
agency should not be considering case-
specific issues, and that in this section
the reference is to "type and nature" of
the undertaking. In light of these
comments and practical experience, the
Council agreed that such a change was
necessary. The language in § 800.3(a)
was amended to state that the
determination is as to whether the
undertaking is a "type" of activity that
has the potential to cause effects on
historic properties, assuming such
properties would be present.
Regulations should address what
happens with program alternatives or
PAs that were executed before the
effective date of the new regulations.
Such agreements are still valid and will
continue to be in effect according to
their terms.
Section 800.3(b)
The section should read that the
Agency Official "may coordinate
* * *." Council cannot require such
coordination. The comment misreads
the proposed rule. It only states that the
Agency Official "should coordinate,"
implying encouragement, but not
requirement.
Section 800.3(c)
30 day response period is too long
and only ensures the destruction or
damage to an archeological site where
the project went forward because of the
necessities of the mission. A 15 day
response period would be much more
appropriate in recognition of the rapid
forms of communication available. The
Council disagrees. The 30 day time
period reflects an adequate balance
between project need for expediency
and workload requirements on
reviewers.
Either delete section 3(c)(3)
altogether, or add further guidance or
regulatory definition of the phrase
"* * * and to the nature of the
undertaking and its effects on historic
properties." Also, delete any discussion
of timing in section 3(c)(4). It
erroneously implies that nearly
everything submitted to the SHPO falls
under a 30 day review period. Review
time periods should simply be
referenced in the various sections of
§§ 800.4-800.6. The rule indeed
imposes a 30 day limit on SHPO/THPO
at each step of the process where a
formal response is required to findings
and determinations, unless otherwise
noted. See § 800.3(c)(4). SHPO/THPO
cannot require the process to stop by
failing to respond by the end of this
period. On the other hand, there is no
such clock for consultation alone (e.g.,
regarding APE or for seeking ways to
avoid, minimize or mitigate adverse
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effects). All that the Federal agency
needs to do regarding such consultation
is to make a reasonable effort to consult
(which may or may not take 30 days)
and move forward with the process.
Section 800.3(d)
Once SHPO declines to participate,
Federal agencies should have no
further burdens. To the extent that the
Council is relying on SHPOs to
comment or consult on its behalf under
section 106, the agency complies with
section 106 by providing SHPO
(Council) an opportunity to comment.
Rule should also contain presumption
that SHPO concurs with a written
finding if it does not respond within 30
days. Accordingly, § 800(d) should
read: (1) If the SHPO declines in writing
to participate, or otherwise cooperate,
in the section 106 process, the Agency
Official shall proceed as it believes
appropriate; (2) If the SHPO does not
respond within 30 days to a written
finding under this part, or sooner if
reasonably requested by the Agency
Official, a presumption of concurrence
with such finding shall be created.
Federal agency obligations under
section 106 of the NHPA do not
terminate when the SHPO or any other
entity declines to continue
participating. SHPOs do not comment or
participate in consultation on behalf of
the Council. A process of allowing the
agency to proceed without any Council
review when SHPO declines to
participate or respond within the 30
days is inconsistent with the letter,
intent and spirit of the law. Nothing in
the NHPA indicates in any way
whatsoever that Federal agency
responsibilities under section 106
disappear once a SHPO refuses to
participate. The statute mandates
Federal agencies to take into account the
effects of their undertakings on historic
properties and afford the Council a
reasonable opportunity to comment
regardless of what any other entity does
or does not do. 16 U.S.C. 470f. It is
noted that the rule does have certain,
reasonable presumptions of concurrence
when a response does not come in time.
See particularly, §800.3(c)(4).
Section 800.3(f)
The regulations do not give adequate
guidance regarding federally
designated THPO's, Federally
recognized tribes without a designated
THPO, and federally recognized tribes
not occupying tribal lands. Guidance is
also needed to identify associated
tribes, crosscutting boundaries or
ancestral lands, differentiate among
differing views of ancestral lands to
ensure that tribes' rights are addressed
without impinging upon the property
rights of private landowners. Such
information can be provided in
guidance but is not appropriate in a
rule. Furthermore, see information
above regarding Council/NFS project
regarding assistance to Federal agencies
regarding ancestral lands.
Section fails to establish who is
responsible for establishing the list of
consulting parties, setting a time limit
in which the SHPO should respond,
and defining what constitutes a good
faith effort in doing so. This comment
is incorrect. The proposed rule does
establish that the Agency Official is
ultimately responsible for establishing
the list of consulting parties. It also sets
forth the 30 day comment period. The
meaning of a "good faith effort" will be
better handled through guidance.
Section 800.4(a)
This is a useful and important
provision. Minor wording changes are
proposed to remove any suggestion that
the SHPO is responsible for the
decision: "(a) Determine scope of
identification efforts. In consultation
with the SHPO/THPO and other
consulting parties, the Agency Official
shall (1) Determine and document the
area of potential effects, as defined in
§ 800.16(d); etc." The Council agreed
with this recommended amendment
since it clarifies that the ultimate
decision here is made by the Agency
Official. However, the phrase "and other
consulting parties" was removed from
the recommended language since the
obligation to consult at this stage would
not extend to other consulting parties.
Section on determining Area of
Potential Effect fails to include time
limit for a response by SHPO or other
consulting parties to an agency's
determination of APE. As stated above,
the agency obligation is to consult.
Failure by SHPO/THPO to respond to
consultation within a reasonable time
would allow agency to finalize its
unilateral determination of the area of
potential effect and move forward in the
process.
Indian Tribes are given broad
discretion to designate any property to
which they attach religious and
cultural significance, whether or not
within tribal lands, as historic hi the
context of the consultation process.
There are no standards directly
relevant to the eligibility of such
properties for the National Register.
The broad discretion creates great
uncertainty, delay, and costs. The rule
should contain criteria on designating
religiously or culturally significant
properties. This comment is incorrect.
These properties must be "historic
properties" and therefore meet the
National Register criteria. They must
follow the same process as other
potentially historic properties.
Requirement to consult with SHPO
regarding the APE should be deleted. It
needlessly extends the already
protracted consultation process without
any concomitant benefits. The Council
believes that consultation with SHPO is
valuable at this critical point to avoid
later problems. Furthermore,
consultation with the SHPO/THPO at
this critical decision making point has
always been viewed as an important
part of the process. The Council decided
to retain the duty to consult with the
SHPO/THPO since the Council believes
that SHPO/THPOs have special
expertise as to the historic areas in their
jurisdiction and the idiosyncracies of
such areas, and can greatly assist the
Agency Official, using such expertise, in
determining an accurate area of
potential effects. Nevertheless, it is
noted that the Federal agency is
ultimately responsible for making the
final determination about the area of
potential effect (i.e., the concurrence of
the SHPO/THPO in such determination
is not required).
In the case of scattered site housing
rehabilitation program, the Agency
Official should have the authority to
determine that (1) the area of potential
effect is limited to the property to be
rehabilitated, and (2) any structure to
be rehabilitated that is less than 50
years old is not considered eligible. The
result would allow scattered site
housing rehabilitation to proceed in a
responsible manner without adding a
time-consuming consultation process
with no apparent benefit to the public
or environment. The Council disagrees.
Not all scattered site projects are the
same. Where a block of properties are to
be rehabilitated, the historic district
may be affected. The less than 50 years
old exemption should be handled
during negotiation of a Programmatic
Agreement.
Given that some of the tribes with
ancestral interest in a project area are
no longer physically located within the
state, it is difficult or unfeasible to
comply with this provision. The reg
needs to set some practical limits on
consulting with Tribes in identifying
historic properties. The NHPA does not
set such limits on consultation. The
location of tribes and the boundaries of
tribal lands are consequences of history
to which tribes were subjected.
Accordingly, the fact that a tribe may
not live on or near a significant property
should not be an impediment to its
participation in consultation. As stated
above, this is the subject of a guidance
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project currently under way between the
Council and the National Park Service.
The regulations should set forth a
process to follow when the SHPO
disagrees with an agency determination
of the area of potential effects (APE)—
similar to the process for
determinations of eligibility. Also, we
need further guidance on what is
considered "documenting" the APE.
The Council believes the process in the
rule regarding APE should remain
unchanged. The determination of APE
should be ultimately done by the
Federal agency in consultation with the
SHPO. SHPO can seek informal advice
from the Council. Guidance could be
developed regarding what is considered
"documenting" the APE.
Section 800.4(b)
Comments recommended that the
provisions of section 106 be extended
only to properties formally determined
eligible, and that this section should
therefore be deleted. The Council
disagrees. Both the Council and the
Department of the Interior have
interpreted the NHPA to require section
106 consideration of all properties that
are listed on the Register, as well as all
those that meet the criteria of eligibility
on the National Register, regardless of
whether a formal determination by the
Keeper has been made. Well established
Department of the Interior regulations
regarding formal determinations of
eligibility specifically acknowledge the
appropriateness of section 106
consideration of properties that Federal
agencies and SHPOs determine meet the
National Register criteria. See 36 CFR
63.3. The NHPA specifically defines
"historic properties" as those that are
"included in, or eligible for inclusion on
the National Register." 16 U.S.C.
470W(5). Not only does the statute
allow this interpretation, but it is the
only interpretation that reflects (1) the
reality that not every single acre of land
in this country has been surveyed for
historic properties, and (2) the NHPA's
intent to consider all properties of
historic significance. It has been
estimated that of the approximately 700
million acres under the jurisdiction or
control of Federal agencies, more than
85 percent of these lands have not yet
been investigated for historic properties.
Even in investigated areas, more than
half of identified properties have not
been evaluated against the criteria of the
National Register of Historic Places.
These estimates represent only a part of
the historic properties in the United
States since the section 106 process
affects properties both on Federal and
non-Federal land. Finally, the fact that
a property has never been considered by
the Keeper neither diminishes its
importance nor signifies that it lacks the
characteristics that would qualify it for
the National Register.
Rule should clarify that the section
106 process does not impose
identification burdens upon the private
applicant. Although identification
obligations are placed on Federal
agencies, in reality the burden is often
passed on to the applicant through
delays or conditioning the agency's
decision until the applicant has funded
the identification efforts. Federal agency
ability to shift burden to applicant is
dependent on that agency's independent
authority. The section 106 rule does not
confer such authority nor relieve
Federal agencies of its duties. This may
be an appropriate guidance topic to be
developed.
Regulations fail to respect the
National Register nomination and
listing process and grant unbridled
authority to impose section 106
requirements on properties already
deemed ineligible. Properties that are
determined ineligible are not subject to
section 106 consideration. Revisiting
eligibility determinations is encouraged
on certain occasions, but not mandatory.
Any imputation of a new substantive
duty under section 106 to discover
unidentified properties is negated by
the detailed provisions for the
discovery of unknown properties
contained elsewhere in NHPA. The
Council disagrees. The obligation to
identify during planning is different
than coming across something during
construction. Further obligation is
limited in scope, duration and intensity.
The "discovery" provisions of the
NHPA do impose a continuing duty to
survey and identify historic properties.
See 16 U.S.C. 470h-2(2)(A). However,
the reality is that such an effort has not
reached every acre of land of this
country that could be affected by a
Federal undertaking, and the NHPA
seeks to protect historic properties even
if they had not been identified prior to
the proposition of an undertaking. This
is clearly reflected in the statute where
.it provides, for example, that agency
procedures implementing the Council's
section 106 rule would provide a
process for identifying historic
properties. 16 U.S.C. 470h-2(a)(2)(E)(ii).
The NHPA would not contain this
language if it believed the other, general
surveying provisions were sufficient.
Since SHPOs are statutorily required
to conduct comprehensive statewide
surveys of historic properties (section
101(b)(3) of NHPA), Federal agencies
and permit applicants should not have
to be required to engage in field
investigations or surveys. SHPOs
should already know what historic
properties exist. No. Agency obligation
to "take into account" effects on historic
properties necessarily places an
affirmative duty to identify historic
properties. The Council notes that the
rule does not compel shifting of such
agency burden to applicants. Also,
please refer to the immediately
preceding response.
Although proposed rule on its face
may place identification efforts on
Federal agencies, the reality is that
these burdens are borne by applicants.
This is usually done by delaying or
conditioning the Federal decision until
the applicant has funded the
identification effort requested by the
SHPO or Council. This tactic is
improper and the rule should clarify
that the process does not impose the
burden upon applicants through either
direct or indirect means, including
delays. The rule does not compel
shifting of this or other Federal agency
burdens to applicants. Section 106
obligations lie with the Federal agency.
Although Federal agencies may be
requiring submissions, as a basis of
accepting applications, this is not
compelled by the rule.
Council only has authority to
promulgate rules regarding section 106.
Since section 106 does not address the
identification of historic properties or
evaluation of historic significance, the
Council has no authority to regulate
these activities. The duty to identify
historic properties are placed upon
Federal agencies, the Secretary of the
Interior, and SHPOs under other
sections of the NHPA (namely sections
101 and 110). The Council disagrees.
The NHPA grants the Council the
authority to promulgate regulations
regarding section 106 "in its entirety."
16 U.S.C. 470s. It would be impossible
for an agency to take into account the
effects of its undertakings on historic
properties (which include those listed
on the Register, as well as those eligible
for listing), as section 106 requires, if it
does not know what those historic
properties are in the first place.
Accordingly, the identification and
evaluation provisions of this rule are
reasonable under the authority. Also,
see response to comment above
regarding ongoing identification duties.
This provision for phased
identification and evaluation using an
MOA is inconsistent with our prior
understanding that an MOA should be
used exclusively to stipulate mitigation
measures for properties that have been
identified and fully evaluated. With this
change, why would an agency do a
project specific PA? Phased
identification acknowledges the reality
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of large projects. A programmatic
agreement may be an alternative, but
this provision expands the flexibility of
the rule.
Section 800.4(c)
This section should be revised to
overcome the current perception that
agencies are required to identify every
single specific property that may be
affected and study each sufficiently to
apply the National Register criteria.
This drives up the cost of S. 106
consultation, unnecessarily delays the
process, discourages consideration of
indirect and cumulative effects, and
complicates coordination with NEPA.
The provision for phased ID and
evaluation helps, but § 800.4(a) should
be revised to make it clear that it is
permissible to address eligibility
prospectively, and to focus on "types of
properties" rather than to identify
every single property. The phased
identification provisions of the rule are
intended to deal with this issue. The
Council intends to provide guidance
regarding phasing.
Section 800.4(c)(l) is misleading in
stating that tribes have "special
expertise in assessing the eligibility of
historic properties that may possess
religious and cultural significance to
them." Their expertise is not in
applying the criteria of eligibility, it is
in identifying some kinds of historic
properties and in identifying effects
that might not be apparent to others.
The current wording sets up the tribes
to overrule decisions made by agencies
and SHPOs. The Council clarifies that
tribal expertise is not in applying the
eligibility criteria per se, but in bringing
a special perspective to how a property
possesses religious and cultural
significance. This reflects the fact that
such Tribes are particularly well placed
to provide insights and information on
those properties of religious and
cultural significance to them. It is
common sense to reach out to the Tribes
regarding these issues.
Requiring eligibility determination
from the Keeper when SHPO disagrees
with Agency Official determination
gives SHPO a veto over the project. The
Keeper eligibility process is so lengthy
that applicants have no alternative but
to go along with the SHPO's position
regarding time-sensitive projects. SHPO
can delay projects simply by claiming
not to have sufficient information.
Department of the Interior regulations
require a response from the Keeper
within 45 days. Those regulations also
recognize the concurrent Agency/SHPO
determination scheme. See 36 CFR part
63. The section 106 rule does not
encourage wrongful delays by any party.
Cases where an abuse of the process is
suspected can always be brought to the
attention of the Federal agency
conducting the review and/or the
Council.
Proposed rule gives Tribes the de
facto ability to designate any property
to which they attach religious and
cultural significance as a historic
property. Tribes can then pressure the
Agency Official to take their concerns
into account above all others. Proposed
rule effectively requires Federal
agencies to defer to Indian tribes on
what properties are reached by section
106, and give added (if not dispositive)
weight to religious considerations in
that determination. The Council
disagrees. Properties of religious and
cultural significance to Tribes must
meet the National Register criteria in
order to be considered "historic" and
subject to section 106 consideration.
The fact that a Tribe attaches religious
and cultural significance to them does
not make them "historic," but neither
does it preclude them from meeting the
National Register criteria. The Federal
agency makes the determination of
eligibility, and disputes are ultimately
resolved by the Keeper based on the
secular National Register criteria. The
Tribe is consulted but, again, the
ultimate decision in the case of a
dispute with the Federal agency finding
by a SHPO/THPO, is the Keeper.
The NHPA does not empower the
Council to require Agency Officials to
obtain a determination of eligibility
from the Keeper. In fact the NHPA
prohibits "any person or local
government" from providing a
nomination for inclusion of a property
on the Register unless such property is
located within a State where there is no
SHPO. Moreover, this is redundant
with 36 CFR part 63. There is no basis
for requiring SHPO concurrence or
agreement. Finally, the NHPA expressly
prohibits the nomination of any historic
property for the Register where the
owner objects. 16 U.S.C. 470(a)(6). Such
prohibition should be integrated into
the proposed rule to reflect that when
such objection is lodged with a Federal
agency, they may terminate their
section 106 review. The comment fails
to realize that a determination of
eligibility is not the same as a
nomination/listing on the National
Register. The Council also points out
that under the NHPA, an owner's
objection to a nomination/listing still
can lead to the Secretary of the Interior
determining the eligibility of the
property. It should also be noted that
this rule provides that an owner of an
affected property can, and should be,
invited as an additional consulting party
in the section 106 process. See
§800.2(c)(6) of the rule. Finally, see
responses above to the issue of Agency/
SHPO concurrence determinations of
eligibility.
Various comments comment
suggested that in the last sentence, the
word "special" should be changed to "unique."
The Council disagreed. The word
"unique" excludes everyone else and
gives the incorrect impression that
Tribes have the final word that cannot
really be challenged by the Agency.
Also, see response above regarding the
need of properties of "religious and
cultural significance" to Tribes to meet
National Register criteria in order to be
considered "historic."
Section 800.4(d)
The addition of a 30 day waiting
period, even when no historic
properties are identified, is
unreasonable. Suggest that the waiting
period after submission to SHPO/THPO
be eliminated consistent with previous
regulations. The Council disagreed.
This period is necessary so the
consulting parties and the Council can
review the finding responsibly and
object if appropriate. Such review also
allows mistakes to be caught in time
before they potentially lead to costly
litigation.
Move this subsection under § 800.5
and re-title § 800.5 to "Assessment of
Effects." The proposed change was
rejected since these are outcomes of
identification and effect assessments.
However, the Council may draft
guidance on the topic of assessment of
effects.
Section 800.5(a)
A tribal comment stated that the
exemption of properties of religious and
cultural significance from the
demolition by neglect provision
(§ 800.5(a)(2)(vi)) is so broadly written
that it could lead to the loss of National
Register districts in pueblos and other
Native communities. This provision had
been added at the request of Indian
tribes. It specifies that the exception
only applies where neglect and
deterioration are recognized qualities of
the property. A further safety valve is
that a "no adverse effect" determination
is subjected to review by consulting
parties (which would include Tribes
that attach religious and cultural
significance to the historic property at
issue). See § 800.5(c). Lastly, the
Council is not aware of this provision
having been applied inappropriately or
over the objections of Tribes.
Criteria of adverse effect too broad,
and encompasses activities of benefit to
the public. Accordingly, such activities
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are delayed. Examples of such activities
are: reclamation of abandoned mines,
creation of wetlands, "hazardous
material remediation" (§ 800.5(a)(2)(ii)),
rehabilitation of historic properties,
and provision of handicapped access.
Adverse effect criteria are linked
specifically to objective National
Register criteria published by the
National Park Service, which are used to
determine characteristics that contribute
to a property's historic significance. If
those characteristics are adversely
affected, then the historic significance is
impaired. It is noted that program
alternatives under § 800.14 are intended
to deal with repetitive or minimal
impact situations. Finally, while the
listed activities may be of benefit to the
public, it does not necessarily follow
that such positive activities could not
also cause an adverse effect on historic
properties. Again, all that the section
106 process requires is that such effects
be taken into account. The section 106
process does not prohibit any projects,
beneficial or otherwise.
Proposed rule uses impermissibly
vague and overbroad terms, in violation
of the Due Process Clause. Its definition
of "adverse effects" includes those
when an undertaking "may" alter
"indirectly" "any" of the
characteristics making the property
eligible in a way that would diminish
the integrity of the property's "feeling"
or "association." Such definition does
not give fair notice as to what it
requires, and is not grounded on
intelligible principles. This further
complicates, expands, and lengthens
the process, adding difficulties, costs
and uncertainty. As stated above,
adverse effect criteria are linked
specifically to objective National
Register criteria published by the
National Park Service. The National
Register criteria itself expands on the
meaning of its terms and provides
various examples. These criteria have
been fleshed out through consideration
and application countless times, over
the years, since the program began, and
explained through various guidance
documents. For example, see National
Register Bulletin 15, "How to Apply the
National Register Criteria for
Evaluation," which includes definitions
of the terms "feeling" and
"association."
Criteria of adverse effect should
exclude "insignificant" transfers of
property. De minimis transfers of
property are being subjected to lengthy
section 106 process. The rule provides
for an avenue, under § 800.14(c),
whereby the appropriate agency can
pursue an exemption.
The criteria of Adverse Effect is
devoid of any limitations on the
proximity of an undertaking to a
historic site, allowing the SHPO to be
inconsistent and subjective when
evaluating effects. The standard set
forth under section 106 is effect, not
proximity. While it is possible that
distance separating an undertaking from
a particular historic property may
remove any effects, such a
determination should be made on a case
by case basis, and is not suitable for a
generalization. Different undertakings
simply have different areas of potential
effects according to several factors such
as the nature of the undertaking itself,
the nature of the historic property at
issue and topography.
The current and proposed rule do not
take into account the fact the
cumulative impact of adding a
monopole to areas with modern
intrusions would not be an adverse
effect. The proposed rules, therefore,
will lead to consultative gridlock as the
expansion of wireless services
continues. This and several other issues
mentioned by the telecommunications
industry in this rulemaking process
have been or are in the process of being
addressed through ongoing discussions
with the industry, the FCC and SHPOs.
These discussions commenced before
the present rulemaking process. Such
ongoing discussions are referred
hereinafter as "Telecommunications
Working Group."
Section 800.5(b)
Final decision regarding adverse
effects is charged on the Agency
Official. Council has no authority to
impose its determination on this matter.
Council may comment on the issue, but
the final decision is to be made by the
Agency Official. The Council has used
its expertise in setting up the criteria of
adverse effects on this rule. It therefore
has a justifiable role and the expertise
in ensuring the correct interpretation of
its rule. Section 800.7 of the rule is clear
in stating that the Agency Official can
terminate consultation on ways to
avoid, minimize or mitigate adverse
effects, and request Council comments.
The Agency Official can then proceed
with its undertaking in any way it
wants, after taking the Council's expert
comments into account.
There is no basis for mandating
consultation regarding adverse effects.
To the extent that other sections of the
NHPA require Agency Official
consultation with the SHPO, these
provisions are not to be implemented
by section 106 regulations of the
Council. The Council believes this
consultation is reasonable and necessary
in that it provides the Federal agency
with the information and considerations
needed for it to take into account the
effects of its undertakings on historic
properties. Consulting parties are
defined in such a way as to ensure they
have the necessary interest and
competence in informing Federal
agency decisions on historic properties.
As elsewhere in the process,
consultation ensures that correct and
informed decisions are made and that
mistakes are not overlooked. See
response regarding legal authority,
below.
To address agreements like
Community Development Block Grant
(CDBG) Programmatic Agreements, the
Council should add language which
recognizes situations where the specific
details of future activities are unknown
and the consulting parties agree that
adverse effects will be avoided through
review and standard mitigation
measures. Such language can, and many
times is, used and provided for in the
Programmatic Agreements themselves.
There is no need to add this language to
the process under the rule to reach such
agreements. As stated before, the
Council has revised the rule to provide
for prototype agreements, which could
be particularly helpful in the CDBG
context.
Section 800.5(c)
Proposed rule gives Tribes power to
require further analysis (and therefore
delay) under the process whenever they
attach religious or cultural significance
to a property. Tribes are provided the
same consultative opportunities to
review an agency's findings that other
consulting parties are provided. The
rule only encourages, but clearly does
not require, the agency to reach such
concurrence. See response above to
comments regarding properties of
"cultural and religious significance."
Also see section 101(d)(6)(B) of the
NHPA.
Subsection (c)(l) is directly contrary
to NHPA since NHPA only requires
documentation when an adverse effect
is found. 16 U.S.C. 470(1). This
comment misreads the statute. Section
110(1) of the NHPA simply indicates
that when no solution to adverse effects
is reached and embodied in an
agreement in accordance with this rule,
the Federal agency must document its
decision after considering Council
comment. This is completely different
than providing the documentation
necessary for reviewers to understand
agency decisions in the normal section
106 process, which is reasonable and
not precluded by anything in the
statute.
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Subsection (c)(2) must clarify that a
finding of adverse effect does not
require consultation under section 106.
The Council is provided a reasonable
opportunity to comment under section
106. The Council disagrees. Section
110(1) of the NHPA explicitly indicates
its blessing of the Memorandum of
Agreement consultation concept when it
states that when no such solution is
reached in accordance with this rule,
then the agency head must document its
decision after considering Council
comment. Furthermore, the rule clearly
states that once a Federal agency has
entered into such consultation, it can
terminate and proceed to Council
comment.
Regarding § 800.5(c)(2)(i), anytime a
consulting party objects to a finding, the
Federal agency should notify all
consulting parties and consult again
with all parties prior to seeking
consultation with the Council.
Regarding 5(c)(3), the Council should
also notify all consulting parties of its
determination. Regarding the
§ 800.5(c)(2)(i) point, the Council
clarifies that if consultation with the
objecting party leads to changes
affecting other parties, the Agency
should go back to them. The Council
also notes that it would notify all
consulting parties regarding its
§ 800.5(c)(3) determination.
Section 800.6(a)
The regulations grant an
unconstrained authority to require
mitigation to avoid adverse effects with
no constraints on cost and without
requiring any nexus between the
mitigation and actual adverse effect.
Comment is incorrect. The agency can,
based on the applicant's position, refuse
any mitigation measures and terminate
consultation. Furthermore, the rule is
quite clear in that the consultation that
may lead to an agreement is to avoid,
minimize or mitigate the adver.se effects
on the historic properties.
Rules should provide that any
Adverse Effect comment should include
recommendations and core criteria for
mitigation to reduce the effects to No
Adverse Effect. While this is
permissible, the Council believed the
rule should not require it as a duty of
SHPO/THPO at the determination of
adverse effect step. Review at that point
is intended to focus on identifying
whether adverse effects exist, and not to
provide a full range of mitigation
options.
Section 800.6(b)
Proposed rule inappropriately
attempts to require parties to sign an
MOA to avoid additional delays from
Council comment on the undertaking.
Federal Register Council has no
authority to require execution of a
binding contractual agreement of any
kind. Section 110(1) does not mean that
the Council may compel the use of
MOAs. This is beyond Council
authority and must be deleted from the
rule. The rule does not require or
compel execution of an MOA.
Furthermore, section 110(1) of the NHPA
explicitly indicates its endorsement of
the Memorandum of Agreement (MOA)
consultation concept when it states that
(1) when no such solution is reached in
accordance with this rule, then the
agency head must document its decision
after considering Council comment, and
(2) when such an agreement is reached,
it shall govern the undertaking and all
its parts.
There is no specific time period for
Council review of a MOA when Council
is participating in consultation which
can significantly lengthen the section
106 compliance process. Regulatory
time limits or guidelines (30-45 days)
should be promulgated. Similarly, there
is no review time specified for Council
response to the submission of an
executed MOA. Recommend time limit
or guidelines of 30 days. The Council
consults regarding MOAs but does not
"review" them. The Council does not
review executed MOAs, so there are no
delays of agency action.
Section 800.6(c)
Several comments requested changes
to the rule to clarify the issue of invited
signatories. The Council agreed that this
section needed to be changed. The
changes to the rule indicate that the
Agency Official is the one that
ultimately decides who is an invited
signatory, and that the rights to seek
amendment or termination of an MOA
attach to those that actually sign the
MOA.
A comment regarding 36 CFR
800.6(c)(2)(I) supported retention of the
permissive "may" in allowing agency to
invite an Indian Tribe or Native
Hawaiian organization to become a
signatory to a MOA, but would find a
language such as "should" or "shall" to
be unacceptable. Several tribal
comments, on the other hand, requested
that the tribes be given a signatory
right. This was a major issue during the
development of the 1999 rule. After
careful consideration, the
Administration made a policy decision
that is reflected in the proposed rule.
Indian tribes are not mandatory
signatories to an MOA dealing with
effects on historic properties off tribal
lands. The Council has no new evidence
to support changing that position.
SHPOs are given broad discretion to
determine appropriate mitigation for an
MOA, resulting in the process being
unregulated. This comment is incorrect.
The Federal agency has the discretion to
agree or disagree with SHPO/THPO
views regarding an MOA. When an
agreement is not reached, the agency
goes for Council comment to wrap up
the process.
Section 800.7(c)
There is no authority for the Council
to dictate to Federal agencies how they
consider Council comments, how they
document or prepare records of
decisions, nor how or whether they
notify the public, nor require the
agency to provide the Council with the
decision prior to approving the
undertaking. The NHPA specifically
grants the Council the authority to
promulgate rules to implement section
106 in its entirety. Section 106 requires
Federal agencies to give the Council a
reasonable opportunity to comment.
Section 110(1) of the NHPA explicitly
requires the Federal agency to document
its decision made pursuant to section
106. The Council is well within its
authority to implement these
requirements and determine how such
opportunity is provided the Council,
and how the required documentation is
provided.
Time for Council comment should be
limited to 30 days, and the Agency
Official could decide to grant an
extension if it so desired. The Council
believes the 45 day comment period is
reasonable, takes into account the
reality of staff and Council workload
and need for adequate consideration,
and reflects a shorter time period than
previous rules (the section 106 rule
adopted in 1986 set a 60 day period).
Section 800.8(a)
Rule contravenes NEPA by seeking to
require processing under NEPA of
undertakings that have no significant or
no adverse impact on historic
properties. The Council emphasizes that
the rule clearly does not require NEPA
processing for anything. That is
something the Federal agency must
decide independently.
Rule contravenes NEPA in that it
undermines the categorical exclusion
provisions of NEPA by requiring section
106 processing for all categorically
excluded Federal actions and failing to
provide a compatible process for
excluding from section 106 those
actions that have small or insignificant
impacts, thus causing waste of
enormous public and private
compliance resources struggling with
the least measurable and least
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important Federal actions. The
statement is incorrect. Section 106 of
the NHPA covers "undertakings"
regardless of NEPA categorical
exclusions. The NHPA and NEPA are
independent statutes with separate
obligations for Federal agencies.
Furthermore, § 800.14(c) provides for a
way that agencies can request and
obtain exemptions.
Section 800.8(c)
Comments suggested need for
guidance to facilitate use of provisions
allowing substitution of NEPA for
section 106 process. The Council is
committed to develop such guidance
and assist Federal agencies that desire to
follow these provisions of the rule.
Ally integration of the NEPA process
with section 106 should allow EAs as
well as EISs to constitute full
compliance with section 106. Section
800.8(c) of the rule allows just that
when certain reasonable standards are
met. Those standards ensure that
historic properties are taken into
account in a manner consistent with the
NHPA.
Council has no authority to prescribe
rules regulating Federal agencies' use of
NEPA to comply with section 106. Such
an approach was rejected during the
1992 amendments. The Council notes
that the NEPA coordination provisions
of this rule only apply when the Federal
agency independently chooses NEPA
documents/process to substitute for the
regular section 106 process that they
would have had to follow otherwise.
The Council has the authority to set
conditions for an agency to substitute
another process for the Council's
government-wide rule.
. Requirement that the NEPA
documents include mitigation measures
should be deleted. The Supreme Court
has stated repeatedly that NEPA
mandates that mitigation measures be
discussed, but that there is no
requirement that a detailed mitigation
plan be adopted. The Council has no
authority to attach such a requirement
to the NEPA process. Again, the NEPA/
106 substitution provisions of this rule
apply only when the NEPA process is
used to substitute regular section 106
process that the Federal agency would
have had to follow otherwise. Nothing
in the rule requires adoption of
mitigation measures since the option of
getting formal Council comments
instead is still available.
Section 800.9(a)
It is not the responsibility of the
Council to decide whether or not their
procedures have been followed
regarding Agency determinations. The
only Council right is to expect a
reasonable opportunity to comment and
that its comments will be considered
before the agency proceeds with the
undertaking. The rule makes it clear
that this is not a binding "decision" by
the Council, but an advisory opinion
(see section 202 of the NHPA). The
Council, as the agency promulgating the
section 106 rule, has the specific
expertise and interest in opining as to
whether its rule has been correctly
followed.
Section 800.9(b)
The process in § 800,9(b) regarding
the Council's determination, of a
foreclosure lies outside of the Council's
authority. A finding of foreclosure is an
advisory opinion within the Council's
authority (see Section 202 of the NHPA).
The Council, as the agency
promulgating the section 106 rule, has
the specific expertise and interest in
opining as to whether its rule has been
correctly followed.
Section 800.9(c)
Comments questioned the statutory
authority for Council to promulgate
regulations implementing section
110(k) of the NHPA. Section 211 of the
NHPA authorizes the Council to
promulgate regulations to implement
section 106 in its entirety. Section
110(k) directly relates to the section 106
and what an agency must do when an
applicant's actions may have precluded
section 106 review. Moreover, section
110(k) specifies a requirement that the
Council be consulted. The rule simply
re-states Section 110(k), sets forth how
the Council will be consulted, and
reminds agencies of their further section
106 responsibilities.
Section 800.9(d)
Council's assertion, under
§ 800.9(d)(2), that it can participate in
individual case reviews, however it
deems appropriate, finds no support in
any section of the NHPA and should be
deleted. The Council changed the rule
in response to this comment. The
change expressly limits the role of the
Council in such reviews to accord with
the role already given to the Council
under subpart B and parallel to that of
SHPO/THPOs.
Section 800.10
A comment questioned the statutory
authority for Council to promulgate
regulations implementing Section 110
of the NHPA. Section 211 of the NHPA
authorizes the Council to promulgate
regulations to implement section 106 in
its entirety. The Council notes that
undertakings affecting National
Historical Landmarks (NHLs) are subject
to section 106 review. NHLs are
"historic properties" listed on the
National Register. The provisions of
§ 800.10 lay out how the Council may
participate in the section 106 review of
these particularly important historic
properties, how the Council may request
a report from the Secretary of the
Interior pursuant to section 213 of the
NHPA, and how the Council will
provide a report to the Secretary on the
outcome of the consultation.
Section 800.11(a)
NHPA section 470k limits the
substance and extent of any
documentation requirement dependent
upon each Federal agency's authority
and funding; therefore the proposed
§ 800.11 should be revised to clarify
that the rules' documentation
requirements are not mandatory but are
recommended guidelines consistent
with NHPA 470k and the Council's
advisory role. To better comport with
statutory language, §800.11 was
changed by adding language that
clarifies that documentation
requirements are mandatory but limited
"to the extent permitted by law and
within available funds." 16 U.S.C. 470k.
The documentation provisions remain
mandatory since the Council and other
reviewers simply cannot comment
without a basis, which can only be
provided by adequate documents. The
Council believes that the document
requirements are not only minimal, but
should be readily available to any
agency as its record supporting its
decisions in the process.
When a documentation dispute is
presented to the Council, it must be
resolved in a timely manner. When
documentation disputes are referred to
the Council, the Council is committed to
expeditiously providing a resolution to
them. The resolution provided by the
Council will include guidance as to
when the relevant party should
complete their review of the finding or
determination at issue—taking into
account how long the party disputing
the documentation has had the
documentation, particularly in cases
where such documentation is deemed
by the Council to have been adequate.
Documentation standards are
extremely broad, and likely to create
confusion. Specific standards should be
included that reference and adopt, at a
minimum, documentation sufficient to
satisfy the definition of "sacred site" in
EO 13007 ("any specific, discrete,
narrowly delineated location on
Federal land that is identified by" an
authoritative Indian tribal source).
Documentation standards are
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77710 Federal Register/Vol. 65, No. 239/Tuesday, December 12, 2000/Rules and Regulations
adequately specific and far more
specific than those of past regulations.
The matter about defining "sacred sites"
is better handled through guidance.
Nevertheless, the Council clarifies once
more that sites, sacred or otherwise,
must meet the National Register criteria
in order to be considered in the section
106 process.
Questions statutory authority for
Council to impose extensive
documentation requirements. Section
110(1) of the NHPA requires agencies to
document their section 106 decisions,
but does not authorize Council to
elaborate. Section 203 of the NHPA
authorizes the Council to obtain
information from Federal agencies, but
does not require those agencies to
provide the information. Section 203 of
the NHPA would be meaningless if it
authorized the Council to obtain
documents from Federal agencies, but
did not require such agencies to comply
according to the law. Furthermore, the
Council is within its statutory authority
to promulgate regulations implementing
section 106 in its entirety, in setting the
rule's reasonable documentation
requirements. Documenting decisions .
not only assures meaningful compliance
with the requirement to take into
account effects to historic properties,
but it produces the necessary
information for consulting parties to
assist the Federal agency in meeting its
duties. Furthermore, the Council would
not have a reasonable opportunity to
comment on an undertaking without .
having adequate documentation on the
undertaking and relevant historic
properties, as provided in this section of
the rule.
Section BOO.llfc)
It is too cumbersome for the agency
to be required to consult the Secretary
of the Interior and the Council every
time it wishes to withhold information
under this provision. This consultative
process is set forth and mandated by
section 304 of the NHPA. The rule
simply outlines a reasonable process for
the Council participation required by
section 304.
Regarding § 800.11(c)(2), the Agency
official should also submit to Council
the views of SHPO regarding the
confidentiality of information. The
Council agreed and changed the rule to
reflect this. SHPOs views as to
confidentiality and harm to resources
are relevant, and confidentiality is not
limited to tribal issues.
Section 800.11(d)
Documentation level for a finding of
no Historic Properties Affected is
unreasonable. The Council believes the
level of documentation is more than
reasonable, if not minimal, since the
agency should already have the listed
documentation readily on hand in order
to have been able to reach such a
decision.
Section 800.11(e)
Section 800.11(e)(5) should require
that each criteria of adverse effect be
explained, whether found applicable or
inapplicable, to ensure consistency in
agency documentation. The Council
disagreed with this proposal. Many
criteria may have no relevance
whatsoever to a particular project.
Nevertheless, the Council believes some
guidance may be warranted in the future
to promote consistency in agency
documentation.
Section 800.12(a)
It is not clear how the regulations
apply during rehabilitation work,
monitoring the emergency from a
cultural resources perspective, or when
to implement the regulations during
emergency situations. The Council
believes the rules are clear that the
emergency provisions are triggered
when an agency proposes an emergency
undertaking in response to a declared
disaster. The provisions require
notification and a seven day review
period.
Section 800.12(d)
Implementation time for emergency
procedures should be extended from 30
days for a formally declared event to 90
days in order to allow for limited
agency resources to adequately address
all the issues that arise from a disaster
related event. The longer an
implementation time is extended, the
lesser the justification for emergency,
abbreviated procedures. Furthermore,
the rule already allows requests for
extensions of time when needed. The
Council has not declined any such
extension requests.
Section 800.13(b)
Agencies often do not often want to
assume a new find to be National
Register eligible. To address this, the
comment offered a proposed change.
The Council believed the suggested
concept was useful and incorporated
changes to the rule. The changes state
that the subject of eligibility can be
raised (and be considered by agency) in
comments. As explained above, section
106 applies to those properties listed or
eligible for listing on the National
Register. This change acknowledges the
importance of National Register
eligibility at this point.
Section 800.13(b)(2) should be
removed for the same reason that the
data recovery exemption was removed
from the 86 regulations. The Council
disagreed. A short cut for these post-
review discoveries of archaeological
resources of value only for their data is
necessary. The Council believes that
tribal involvement will provide an
adequate safeguard.
Section 800.14
The program alternative provisions
are too rigid, intimidating and difficult
to apply and create a one-size-fits all
approach. The revised regulations
should make this provision more useful
so that it can be applied more
productively to Federal agencies and
industry. What the alternatives under
§ 800.14 do is to provide vehicles to
tailor the section 106 process to the
particular needs of each agency, agency
program or group of undertakings.
While the intent is to provide such
flexibility in the final product, it is still
essential to maintain the role of the
public, preservation officers and other
stakeholders in providing necessary
input in shaping those products.
Section 800.14(a)
Include a provision for Council
monitoring and evaluation of whether
Federal agency program alternatives
are working or not. Council monitoring
of program alternatives should be on a
regular basis, including, but not limited
to, how agencies implement the
"exempted categories" projects. Also,
add a provision for the Council to
publish a list of acceptable Federal
Agency alternative programs and make
them available to the public.
Monitoring measures would be
included, as appropriate, in the
alternatives' agreements themselves.
Regarding a list of Council approved
alternatives, the Council does not need
a change to its rule to publish such a
list.
Since agency must submit any
proposed alternate procedures for
review by Council and NCSHPO,
requirement for publication in the
Federal Register should be eliminated.
The Council disagrees. Federal Register
notice of final adoption of these
alternatives is needed to notify the
public as to these changes in how
Federal agencies comply with section
106.
Regarding all of § 800.14, the Council
is granted no rights under the NHPA to
be consulted with about Federal agency
development of their procedures.
Section 110(a)(2) requires consultation
with the Secretary of the Interior, but
not with the Council. Federal agencies
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may find consultation with the Council
desirable, but it is not required by the
statute. The comment simply misreads
section 110(a)(2) of the NHPA. That
section deals with non-binding
procedures that agencies may use to
implement the Council's binding,
section 106 regulations under 36 CFR
part 800. The alternatives under section
800.14 directly modify or substitute for
the Council's binding regulations
regarding certain programs or
undertakings, and therefore require our
direct involvement. The Council
believes it has the internal experience
and expertise to make such evaluations.
Also, the diversity of its membership
ensures that a balanced perspective is
brought to final determinations
regarding consistency. Section 211 of
the NHPA states that the Council "is
authorized to promulgate such rules and
regulations as it deems necessary to
govern implementation of section 106
* * * in its entirety." Section 110(a)(2)
of the NHPA states that the "(Federal
agency historic preservation) program[s]
shall ensure * * * that the agency's
procedures for compliance with section
106 * * * are consistent with
regulations issued by the Council
* * *" (emphasis added). It must be
understood, among other things and
upon closer examination, that section
110 of the NHPA does not specifically
provide for Federal agencies to
substitute their programs for the section
106 regulations promulgated by the
Council. Through § 800.14 of the rule,
the Council is allowing for such
substitution, believing this may help
agencies in their section 106
compliance. However, the Council will
not allow such substitution if the agency
procedures are inconsistent with the
Council's 106 regulations. The Council,
in its expertise, holds that its
regulations correctly implement section
106, and that it would therefore be
inimical to its mandate and contrary to
the spirit and letter of section
100(a)(2)(E) of the NHPA, for the
Council to allow inconsistent
procedures to substitute the Council's
section 106 regulations.
The Council should seek the views of
affected SHFOs and notify them of final
adoption when an Indian tribe enters
into an agreement with the Council to
substitute tribal regulations for Council
regs. The Council notes that section
101{d)(5) of NHPA already requires such
consultation with the affected SHPO,
and that the Council would obviously
notify such affected SHPO as to a final
substitution.
Section 800.14(b)
These regulations require more steps,
more paperwork, and therefore more
time to process routine CDBG
Programmatic Agreements. Under the
new regulations, the Council must
participate more actively in these
highly routine and repetitive
agreements; and the Council treats the
activities covered by CDBG agreements
as "adverse effects." We request
Council reconsider its procedures for
routine PAs. In response to this
comment, the Council agreed to provide
a new procedure for routine
Programmatic Agreements. See
§800.14(b)(4).
It is not clear that Programmatic
Agreements under §800.14(b)(3) are
developed by an agency official in
consultation with the SHPO. Additional
guidance is needed beyond simply
referencing § 800.6. The Council notes
that the SHPO and other consulting
parties must be consulted, just as they
would be consulted for a Memorandum
of Agreement under § 800.6.
Section 800.14(c)
The Council should modify the
proposed rule to accommodate and
promote voluntary habitat conservation
efforts under the ESA. It should
establish as an "exempted category",
exempting from section 106 review, all
voluntary incidental take and
enhancement of survival permits issued
by either FWS or NMFS under section
10 of the ESA. Also, approval of and
voluntary participation in a "take
limitation" or exemption created under
a special conservation rule adopted by
either the FWS or NMFS under section
4(d) of the ESA should also be
exempted from NHPA review. These
and other specific alternatives and
exemptions recommended by the
commenting public should be decided
after the appropriate § 800.14 process is
followed, and not through the
rulemaking itself. The Council
encourages Federal agencies to submit
proposed exemptions and other
alternatives.
Under § 800.14(c)(5), the Agency
Official should submit the views of
SHPO/THPO to the Council along with
the other required documentation. The
Council should also notify SHPO/THPO
of the Council decision. In
§ 800.14(c)(7), SHPO's and others
should be able to request that the
Council review an Agency's activities to
determine if the exemption no longer
meets the criteria. The Council decided
to change this section to explicitly add
SHPO/THPO comments to those that
need to be submitted. The Council
assures the commenting public that it
will notify SHPO/THPOs of final
decisions regarding exemption
decisions. Finally, the Council notes
that anyone can request the Council to
conduct a review of a program
alternative without need of amendment
to the rule.
Section 800.14(fJ
Requiring comment from all Indian
tribes is unnecessarily broad. Section
800.14(f)(l) should be amended so as to
provide an appropriate government-to-
government consultation with affected
Indian tribes and consultation with
Native Hawaiian organizations when a
nationwide Programmatic Agreement is
being developed, adding language to the
effect that "when a proposed program
alternative has nationwide
applicability, the Agency Official shall
identify an appropriate government-to-
government consultation with Indian
tribes and consultation with Native
Hawaiian organizations." The Council
agreed with the concept and rationale of
the proposed change. It therefore added
language to § 800.14(f) regarding tribal
consultation for nationwide agreements,
while honoring the underlying intent of
meaningful consultation with Indian
tribes and Native Hawaiian
organizations.
Section 800.16(d)
Rule is unclear, and allows area of
potential effect for a one acre wetland
permit, to encompass entire
development site (which could be over
one hundred acres). The area of
potential effects should be the one acre
of wetland. Vagueness of rule leaves
applicants vulnerable to high costs and
long permit delays. The issue of area of
potential effects and wetlands permits is
one that needs to be worked out
between the Council and the Corps of
Engineers. The Council notes that
section 106 requires Federal agencies to
take into account the effects of
undertakings on historic properties. An
undertaking is defined by the statute to
include a "project (or) activity * * *
requiring a Federal permit, license or
approval." The effects .to be considered
are those of the "project" that required
the permit. Moreover, in most instances
the effects of projects are felt by historic
properties beyond the immediate .
footprint of a project. To illustrate, a
historic property whose integrity would
be affected by increased noise is affected
even though it is not itself located on
the site of the source of that noise. The
Federal agency must take into account
such effects. Having said this, the
Council understands the need for
guidance on the subject of establishing
areas of potential effects regarding the
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77712 Federal Register/Vol. 65, No. 239/Tuesday, December 12, 2000/Rules and Regulations
particular concerns reflected in this
comment and others. The Council will
be developing such guidance.
Definition of APE is too broad, adding
expense for surveys (usually borne by
applicants), and unlawfully
encompassing private or State lands.
See answer above. Also, section 106
requires Federal agencies to take into
account effects on historic properties
regardless of whether they are located in
private or public lands.
Section 800.16(e)
To the extent the Council seeks to
prescribe a role for SHFOs, this
definition should include in the
alternative the comments of the SHPO.
The comment is incorrect. The term
"comment," as use on the rule, means
the formal comments by the Council.
The SHPO is never entrusted with that
responsibility. The SHPO role through
the process comes from its assistance
responsibilities in the section 106
process (see section 101(b) of the
NHPA).
Section 800.16(1)
The definition of effect should be
consistent with language used to define
area of potential effect (§ 800.16(d)) and
the criteria of adverse effect
(§ 800.5(a)(l)). The Council agreed and,
for consistency, changed the rule so that
the "alterations" is used for both
definitions.
Section 800.16(w)
Several comments requested the
Council to revise the rule to distinguish
between section 101(d)(2), NTS
approved THPOs and non-101(d)(2)
tribes. They strongly recommend that
different terms be used for these two
types of tribes in order to more clearly
reflect their different authorities on
tribal lands. The Council agreed and
changed the rule accordingly. In
summary, the Council (1) deleted the
reference to non-101(d)(2) tribes from
the definition of "THPOs" on this
section of the rule, and (2) revised the
language regarding these consulting
parties under section of § 800.2(c).
Section 800.16(x)
A definition of "dependent Indian
communities" for the purposes of this
regulation is needed. Folks need a legal
definition from the Council. The
Council used the definition of Indian
tribes provided by the statute. The
Council will bring this issue to the
attention of the Department of the
Interior and work on clarification.
Section 800.16(y)
The term "undertaking" needs to be
better defined within the regulation so
as to clearly eliminate actions with no
potential to affect historic properties.
Section 800.3(a)(l) provides at the
beginning of the process that Federal
agencies have no further section 106
responsibilities if the undertaking is not
a type of activity that has the potential
to affect historic properties.
Various comments requested in
different forms that the Council should
clarify that Federal funding is a
condition precedent to the application
of the section 106 process. The Council
notes that there is case law supporting
that position as well as case law stating
that funding is not a prerequisite. The
Council has maintained the statutory
definition of "undertaking," verbatim,
in the regulations. The Agency Official
is responsible, in accordance with
§ 800.3(a), for making the determination
as to whether a proposed Federal action
is an undertaking. As appropriate, an
agency should examine the nature of its
Federal involvement taking into
consideration factors such as the degree
of Federal agency control or discretion;
the type of Federal involvement or link
to the action; and whether or not the
action could move forward without
Federal involvement. An agency should
seek the advice of the Council when
uncertain about whether or not its
action falls within the definition of an
undertaking.
Do not want incidental take permits
(ITPs) under the Endangered Species
Act to be subject to section 106 review.
As stated before, the Council notes that
this and other specific alternatives and
exemptions should be decided after the
appropriate §800.14 process is followed
and not through rulemaking itself. The
Council encourages Federal agencies to
submit proposed exemptions and other
alternatives.
Various comments argued in various
forms that Surface Mining Control and
Reclamation Act (SMCRA) permits
issued by States, after Office of Surface
Mining (OSM) delegation of the
program, are not subject to the section
106 process. The Council believes that
it is the responsibility of the Federal
agency, rather than the State, to comply
with section 106. The Council intends
to continue working with OSM to
develop and finalize a-solution to this
issue.
The proposed rule does not apply to
the siting of wireless facilities, since the
construction of communications towers
does not constitute a Federal
undertaking. As stated before, this and
several other issues mentioned by the
telecommunications industry in this
rulemaking process have been or are in
the process of being addressed through
ongoing discussions with the industry,
the FCC and SHPOs. These discussions
commenced before the present
rulemaking process. Such ongoing
discussions are referred hereinafter as
"Telecommunications Working Group."
Appendix A
Various comments stated that
Council participation in consultation
should be mandatory when requested
by a tribe, particularly because tribes
are not mandatory signatories off tribal
lands. The Council disagreed. The
Council needs to retain discretion, just
as it has in any other Section 106
reviews. Such discretion is necessary
not only to allow the Council to manage
its limited resources, but also to further
encourage the goal of Agency and
SHPO/THPO independence in the
process. We have no evidence that this
discretion is not being exercised
appropriately.
The Council should change its rule to
allow it to comment on the most
important cases, involving the SHPOs/
THPOs in an advisory capacity, not a
managerial role. The Council believes
the rule accomplishes this. Under the
rule, the Council only gets involved in
some of the cases meeting Appendix A
criteria. The rule requires the Council to
explain how such criteria is met before
entering consultation, and provides
SHPOs/THPOs with an advisory role.
General Consultation
THE COUNCIL'S "HANDBOOK ON
TREATMENT OF ARCHAEOLOGICAL
PROPERTIES" IS WOEFULLY OUT OF DATE
AND SHOULD BE UPDATED AS SOON AS
POSSIBLE. ALSO "PREPARING AGREEMENT
DOCUMENTS" SHOULD BE REVISED TO
REFLECT THE CHANGES IN THE NEW
REGULATIONS. THE COUNCIL SHOULD ALSO
EXPLORE ESTABLISHING PEER REVIEW
SYSTEMS IN RESOLVING DISPUTES THAT
INVOLVE THE IDENTIFICATION, EVALUATION
AND/OR TREATMENT OF ARCHAEOLOGICAL
SITES. The Council agrees that the
mentioned documents should be
updated. Regarding the establishment of
peer review systems, such an option
could be explored.
Overly burdensome consultation
requirements. Commenter cites seven
different points of notification or
consultation even when there are no
historic properties present, and a dozen
or more if there should be historic
properties, resulting in unnecessary
delays for thousands of routine
projects. The commenter estimates that
implementation and documentation of
the numerous consultation points
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Federal Register/Vol. 65, No. 239/Tuesday, December 12, 2000/Rules and Regulations 77713
requires V* to Vz FTE on every National
Forest in the Southwest. The rule
provides for ways to tailor the process.
The Council notes that a Programmatic
Agreement under Section 800.14 should
be suggested to the Forest Service. Such
Programmatic Agreements have proved
effective in the past in further
streamlining and fitting the section 106
process to the particular needs of agency
programs. The comment also raised an
issue on the number of consultation
points for situations where there are no
historic properties affected.
Consultation is necessary for an agency
to learn whether historic properties are
present or not, and then whether and
how those present would be affected.
Section 106, again, requires the effects
of undertakings on historic properties be
taken into account. For that to happen,
there has to be a process for identifying
the properties and assessing the effects
on such properties. As stated before,
Section 800.14 presents several options
an agency can pursue to advance an
alternative way of complying with
Section 106 which better fits the
realities of their particular programs.
Some SHPO's have attempted to
implement the Council's proposed Part
800 rules by treating the regulations as
a springboard for additional,
mandatory compliance steps and
unreasonable documentation
requirements that only serve to delay
the review process. Clarify that SHPO's
must follow proposed part 800's
regulatory deadlines. Please refer to
earlier responses regarding the 30 day
time limits, above.
Proposed rules discourage SHPOs/
THPOs from consulting with private
sector companies and individuals
seeking consultation regarding their
projects. Government to government
consultation if invoked by Tribes may
prevent historic preservation matters
from receiving their full consideration.
As stated before, the rule has been
changed to facilitate Federal agency
authorizations for applicants to initiate
the section 106 process. Government-to-
government relationships between the
Federal Government and Tribes is based
on Presidential Memoranda, Executive
Order 13084, treaties, and statutes.
Furthermore, the Council believes that
consultation with Tribes assures full
consideration regarding historic
properties on tribal lands or of
significance to tribes.
Numerous provisions of proposed
rule attempt to confer upon SHPO
consultation, agreement (i.e.,
concurrence) or virtual veto powers.
Section 106 does not mention any role
for the SHPOs, let alone a requirement
that the SHPO concur in agency
determinations. SHPO's
responsibilities, like the Council, are to
assist and to advise. Proposed rule
confers unauthorized powers on SHPOs
and the Council, and result in
additional administrative requirements
and delays. The SHPO's role is limited
in the rule to consulting and advising,
based in their responsibilities pursuant
to section 101(b)(3) of the NHPA. When
a step calls for concurrence, SHPO
concurrence can end the process from
further evaluation. When the SHPO
does not concur, a project is not vetoed;
rather, the Federal agency is moved to
the next, logical step in the process.
Nothing in the rule gives anyone veto
power over an undertaking. The Federal
agency ultimately decides by itself what
to do with the undertaking, once it has
complied with its Section 106
responsibilities.
Council should confirm that SHPOs
have no legal authority over private
parties. Neither the Council nor this
rule gives SHPOs the legal authority to
require any action from private parties.
Nothing in the NHPA requires that
every party that finds preservation to
be interesting to be given a formal role
in the section 106 process, with the
ability to delay or derail Federal
undertakings. The Council agrees, and
believes that the rule reflects that
regarding who are consulting parties
and how the Federal agency can control
who becomes an additional consulting
party.
Proposed rules provide a mechanism
for a Federal agency to proceed over
the objections of SHPO/THPO or
without an MOA, however, the Federal
agency and its regulatees would have
already paid a steep price for their
efforts through project delays,
duplicative legal reviews and other
expenses associated with earlier
consultation with SHPOs, THPOs, and
ACHP. Section 106 of the NHPA
requires Federal agencies to take into
account the effects of their undertakings
on historic properties and afford the
Council a reasonable opportunity to
comment. Just as with NEPA and other
laws, Federal agency compliance with
such obligations necessarily requires
effort and time. Through various
methods, such as time limits and
program alternatives (which give
Federal agencies the tools to further
streamline and adapt the process to
their needs), the Council has provided
for cutting down such compliance costs.
Federal agencies often have no
cultural resources expertise and
therefore rely on SHPO to make
findings for them. Although Council
staff has urged SHPO offices not to be
forced into this position, it is just too
much work to get agencies to obtain the
necessary expertise. This is an
important program issue, but not a
regulatory one. The Council and the
National Park Service should work with
agencies in this area.
Additional guidance may be needed
to further clarify the roles of
participating parties in the consultation
process. The Council agrees that such
guidance should be developed.
The length of the comment periods
are well founded and prudent because
they insures that the parties respond in
a timely manner. The rule also clarifies
and emphasizes opportunities for
Tribes, Native American organizations,
and the interested public to participate
in consultation. The Council agrees.
General Negative
The regulations have strayed from
the consultation and advisory process
envisioned by Congress for "nationally
significant historic sites." It is
evidenced by Congress' enactment of
section 101(a) of the NHPA that a site
does not have to be of "national"
significance in order to meet National
Register criteria and be considered
under section 106 review (sites of State
or local significance can meet the
criteria as well).
Section 106 process is unnecessary
because it duplicates an existing local
zoning review/approval process for
radio towers (a process that considers
the impact that proposed towers might
have on nearby historic properties).
Therefore, it imposes unnecessary costs
on carriers, and those costs are
invariably passed on to the consumers.
Congress has determined that local
governments—not the Federal
Government—should resolve such
issues as the location, height and design
of communications facilities. While
certain local zoning measures may
address historic preservation concerns,
Federal agency undertakings are still
subject to section 106. The NHPA does
not relieve them of this duty. As stated
before, this and several other issues
mentioned by the telecommunications
industry in this rulemaking process
have been or are in the process of being
addressed through ongoing discussions
with the industry, the FCC and SHPOs.
One objective of this exercise is to better
coordinate Federal and local review
processes. These discussions
commenced before the present
rulemaking process.
Instead of imposing overly-detailed
proscriptive regulations that are
difficult to understand and enforce, the
Council should work with agencies and
others to develop incentive programs
that encourage innovative and effective
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77714 Federal Register/Vol. 65, No. 239/Tuesday, December 12, 2000/Rules and Regulations
protection and preservation
procedures. These could encourage
compliance much more efficiently than
the present enforcement model. This
can be done pursuant to the program
alternatives under § 800.14 of the rule.
Council should suspend this
rulemaking, and develop a new rule
that contains: (1) Procedures that the
Federal and State agencies can process
and apply; (2) provisions that assign
burdens and responsibilities that non-
Federal entities can understand and
reasonably support; and (3) an
approach to preservation that equitably
apportions responsibility and cost, and
provides positive incentives for
compliance. The Council believes the
rule presents reasonable procedures that
Federal agencies can process and apply.
The vast majority of the thousands of
section 106 reviews under the current
and past rules have been conducted and
concluded by Federal agencies without
serious problems. The fact that
disagreements sometimes arise
regarding certain findings and
determinations does not mean the
process cannot be applied but, rather,
reflects that it is being applied correctly.
Disagreements and working out
solutions is simply a part of a
consultative process. The Council notes
that, like section 106 itself, the rule only
place requirements on Federal agencies.
The incentive for Federal agency
compliance, beyond meeting legal
obligations set by the NHPA, is the
furtherance of the historic preservation
policies of the Federal Government, as
expressed in the NHPA.
I do not think that the 1999
regulations have resulted in, or will in
the foreseeable future result in, much
streamlining of the process. The
reduction in Council involvement has
created a void. SHPOs do not carry
sufficient respect to fill that authority
void. I recommend that the regulations
require the Council be notified as soon
as either the Agency official or the
SHPO expresses an opinion that an
effect will be adverse; and that the
Council be a signatory to all MOAs and
PAs. The notification requirement is
already in the rule (see § 800.6(a)(l)).
The Council will not become a signatory
to all MOAs, since a decision has been
made to streamline the process by
relying more on the Federal agency and
SHPO/THPO for routine cases.
General Positive
General positive comments are
summarized below, without a Council
response beyond stating its agreement.
A comment asked that the Council
refrain from further restricting public
participation or "other consulting
party" involvement in any way. It also
ask, that the Council not vest any
further authority in the SHPO or reduce
the involvement of SHPOs, THPOs, and
other consulting parties in agency
decision making.
Other comments stated that: (1) the
elimination of the distinction between
"no historic properties" and "no effect"
was a move in the right direction; (2) the
rule is working well and that positive
responses by certain Federal agencies
had been noted; (3) the rule is very
specific and provides sound guidance
for federal agencies and other parties;
(4) the rule clearly establishes the roles
and responsibilities of the parties; (4)
the rule works well and provides an
efficient framework for the
administration of the Act; (5) project
review has been streamlined by
reducing the need for Council review;
(6) the rule is operating well, has
appropriately defined the role of Federal
agencies as the responsible party for
section 106 compliance, achieves the
objective of streamlining the process,
and incorporates changes enacted in the
1992 amendments; (7) Federal agencies
are beginning to assume their
appropriate role as the lead in the
process, and the Council can focus on
difficult cases and problem agencies; (8)
the rules are an improvement over the
1986 regs; (9) the rule offers a
constructive framework for consultation
among SHPO, tribes and all interested
parties.
Miscellaneous
Since implementing NHPA
necessarily affects the agencies'
regulatees, FCC recommends that the
proposed rule include a "reasonable"
time period for Federal agencies to
develop their own implementing
procedures. Federal agencies have
always had the authority to develop
implementing procedures pursuant to
section 110(a)(2)(E). The Council has no
role in setting deadlines for Federal
agencies to develop these implementing
.procedures.
The deadlines for response from
Council and SHPOs (15 days and 30
days) are reasonable—assuming
adequate personnel to handle the
workload. Because SHPO's are
inadequately funded, they are
understaffed to meet these time frames.
Therefore, a 30 day review period for
the Council and a 45-day review period
for SHPOs is recommended. The
Council disagrees. The current
deadlines adequately balance the project
need for expediency and the workloads
of the Council and SHPO/THPOs.
General Tribal
In requesting that the role of THPO's
and tribal representatives be clarified
for those situations affecting properties
of religious and cultural significance off
tribal land, it is suggested that section
101(d)(2) limits THPO responsibilities
and authority to tribal lands and does
not require a Federal agency to consult
with those tribes regarding properties
of religious and cultural significance.
The Council disagrees. Section
101(d)(6)(B) of the NHPA requires tribal
consultation regarding historic
properties of religious and cultural
significance. Nothing in the statute
makes a distinction that would limit
such consultation to tribal lands.
It is inappropriate and illegal for
Council to implement 1992
amendments regarding Indian Tribes
through its proposed rule. Section 106
itself was not amended, and the
Secretary of the Interior is the agency
charged with promulgating regulations
to implement the tribe-related
amendments. The comment misreads
the NHPA. The rule appropriately deals
with tribal requirements as they directly
relate to the section 106 process. The
Council is authorized to promulgate
rules to govern the implementation of
section 106 "in its entirety." This
authority necessarily covers all aspects
that directly relate to the section 106
process. The 1992 amendments require
Federal agencies to consult with tribes
and Native Hawaiian Organizations in
carrying out their Section 106
responsibilities. While the Department
of the Interior provides assistance to
tribes and fosters communication among
tribes, SHPOs and agencies, it does not
oversee the section 106 process nor have
the requisite authority. It is noted that
the Department of the Interior sits on
the Council and voted in favor of
adopting this rule.
Several THPOs have begun to request
payment of fees for Section 106
consultation and have asserted THPO
powers outside of tribal lands. Council
could remove uncertainty and avoid
delays by clarifying that THPOs are
bound by the same rules as SHPOs and
THPO authority extends only over
tribal lands. This is a topic being
addressed by the ongoing
Telecommunications Working Group.
Once the Council reaches a decision on
this matter, it will be disseminated.
Concerned about several THPOs and
tribal representatives requesting
payment for the section 106
consultation required in the regulations
and believes such actions are contrary
to the regulations. This issue was raised
by the wireless industry, and will be
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Federal Register/Vol. 65, No. 239/Tuesday, December 12, 2000/Rules and Regulations 77715
addressed by the Telecommunications
Working Group.
We would not support changes to
grant expanded authority to tribes off
tribal lands. We strongly support
current provisions which enable tribes
to participate, as appropriate. The
Council agrees with this comment and
did not expand the tribal role in this
rule.
The proposed rule will impact us
resulting in the consultation with
Native Hawaiian organizations. The
requirement for consultation with
Native Hawaiian organizations will
require expenditure of time and funds
spent on EIS studies. The rule fails to
specify which Hawaiian Native
organizations (NHO) we would have to
consult with, which may be many. The
statute requires Federal agencies to
conduct such consultation. The rule is
not the appropriate venue for
identifying specific NHOs. That is the
responsibility of the Federal agency
based on the potential to affect
properties of significance to specific
organizations.
E.0.13084 has language that should
be utilized in the section 106 process.
EO 13084 addresses the development of
Federal agency policies and regulations.
The Council rule addresses individual
projects and programs, and not these
overall policies and rules developed by
other agencies.
The regulations took a positive step
regarding tribal input and
participation. It works when the agency
is truly in compliance with the
regulations. Need to work on how tribes
can be more involved; are legally
involved in decision making without a
specific agreement; and can be funded
to conduct the work demanded by
agencies and the regulations. The
Council is developing guidance on tribal
consultation.
The regulations conflict with the
language and purpose of the Act by
creating an artificial distinction
between tribal properties depending on
their location (on or off tribal lands).
Tribes are provided lesser consultation
rights where traditional cultural
properties are located off tribal lands.
The rule acknowledges tribal
sovereignty on tribal lands, which
necessarily distinguishes a tribe's role
on and off tribal lands. The rule does
not distinguish where properties are
located, but only the scope of tribal
involvement.
The regulations suggest that tribal
governments and the interested public
are at the same level of importance.
This concept ignores the sovereign
status of tribes and, as a result, Federal
agencies are disrespecting some tribal
treaties. An important statement of the
tribal government role is missing. With
the public on the same level as tribes,
the public can gain access'to documents
that may compromise the
confidentiality provisions of section
106. The Council disagrees. Section
800.2(c)(3) of the rule provides
information for Federal agencies
regarding sovereignty and the
government-to-government
responsibility. The public is simply
notified and involved as appropriate
but, unlike tribes in their land or
regarding historic properties of
significance to them, is not an entitled
consulting party.
Legal Authority
Several comments questioned the
Council's legal authority to issue the
rule. The main arguments were that: (1)
The Council was given advisory
functions by the statute, and that the
proposed rule transformed the role of .
the Council from purely advisory to one
with substantive regulatory authority
over other Federal agencies and parties;
(2) the Council could only issue
regulations regarding how it issued its
comments (from the "reasonable
opportunity to comment" provided by
section 106); and (3) there was no
statutory basis for a rule that dictates
how an agency takes into account the
effects of its undertakings or the
Council's comments.
The Council believes that the rule is
properly characterized as one providing
a process to be followed. Nowhere does
the rule impose an outcome on a
Federal agency as to how it will decide
whether or not to approve an
undertaking, or how. The rule merely
provides a process that assures that the
Federal agency takes into account the
effects of the undertaking on historic
properties. It does not impose in any
way whatsoever how such consideration
will affect the final decision of the
Federal agency on the undertaking. The
rule does not provide anyone with a
veto power over an undertaking.
Furthermore, the Council believes it
has the authority to promulgate the
present rule. Section 211 of the NHPA
states that: "The Council is authorized
to promulgate such rules and
regulations as it deems necessary to
govern the implementation of section
106 of [the NHPA] in its entirety." The
phrase "in its entirety" was added by
the 1992 amendments to the NHPA.
Directly talking to the meaning of the
"in its entirety" amendment, the
summary of the amendments stated that:
"This makes clear that the ACHP has
the authority to define not only how
agencies will afford the Council a
reasonable opportunity to comment, but
also how agencies should take effects on
historic properties into account in their
planning." Congressional Record,
Senate, S 3575, March 19, 1991. This
amendment was specifically introduced
to address the authority issues raised
earlier. Thus, it is clear that Congress
has given the Council the authority to
promulgate rules, such as the present
one, setting forth how Federal agencies
are to meet all their section 106
responsibilities to take into account the
effects of their undertakings on historic
properties, as well as to provide the
Council with a reasonable opportunity
to comment.
Moreover, the rule is solidly based on
the requirements of the statute and, as
Congress intended, provides a
predictable framework which fleshes
out those requirements. As stated
before, section 106 specifically requires
Federal agencies to take into account the
effects of their undertakings on historic
properties. 16 U.S.C. 470f. The first
general step in the process under the
rule requires Federal agencies to
identify the historic properties that may
be affected by the undertaking. 36 CFR
800.4. It is simply impossible for an
agency to take into account the effects
of its undertaking on historic properties
if it does not even know what those
historic properties are in the first place.
The second general step in the
process is for the Federal agency to
assess the effects of the undertaking on
the historic property. 36 CFR 800.5.
Again, an agency cannot take into
account effects on historic properties if
it does not first assess the nature of
those effects. The Council has utilized
its considered expertise on historic
preservation to create the criteria of
adverse effect that guides the end of this
step.
The third general step in the process
under the challenged rule is to consult
to attempt resolving adverse effects to
historic properties (through what is
called a Memorandum of Agreement), if
it has been determined the effects are
actually adverse. 36 CFR 800.6. Such an
approach is explicitly sanctioned by the
statute under Section 110(1) of the
National Historic Preservation Act. 16
U.S.C. 470h-2(l). Specifically, Section
110(1) of the statute states that:
With respect to any undertaking subject to
section 106 which adversely affects any
[historic property], and for which a Federal
agency has not entered into an agreement
pursuant to regulations issued by the
Council, the head of such agency shall
document any decision made pursuant to
section 106. . . . Where a section 106
memorandum of agreement has been
executed with respect to an undertaking,
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77716 Federal Register/Vol. 65, No. 239/Tuesday, December 12, 2000/Rules and Regulations
such memorandum shall govern the
undertaking and all its parts.
Id. (emphasis added). It bears
mentioning that this section was
amended by Congress after the section
106 rule that went into effect in 1999.
The amendment further conformed the
statute to that 1999 rule, which was
used as the proposal in the present
rulemaking. Specifically, section 5 (a) (8)
of HR 834, amended the language of
section 110(1) by striking "with the
Council" and inserting "pursuant to
regulations issued by the Council."
In the last general step in the process,
the Council issues comments to the
Federal agencies that fail to resolve
adverse effects. Such a step is obviously
contemplated in the requirements of
section 106 that the Council be given "a
reasonable opportunity to comment." 16
U.S.C. 470f.
The rule does provide for consultation
with various parties throughout the
process. Such consultation requirements
with State Historic Preservation
Officers, Tribal Historic Preservation
Officers and certain federally recognized
Indian Tribes and Native Hawaiian
Organizations are solidly anchored on
statutory requirements that Federal
agencies consult with such parties. See
e.g. 16 U.S.C. 470a(b)(3)(I), 470a(d)(2),
and 470a(d)(6)(B). The general public is
also given a general role under the rule,
although such role does not rise to the
level of that of consulting parties. The
Council believes this role for the public
is reasonable and authorized. The
Federal agency's consideration of how
its undertaking affects historic
properties is enhanced and better
informed by the participation of the
consulting parties and the general
public, for whose enjoyment and
enrichment the NHPA seeks to protect
historic properties. It must be kept in
mind that such public is the one that
lives in the communities and areas
where the historic properties are
located, and therefore may have
uniquely informed viewpoints as to
such properties. As stated above, the
rule specifically states that Federal
agencies can use their own procedures
for public involvement in lieu of those
under subpart B of this rule, so long as
they provide adequate opportunities
consistent with the rule. Such
procedural consistency is no more than
what the NHPA requires under 16
U.S.C. 470h-2(a)(2)(E).
Appointments Clause
Some comments argued that the
present rulemaking process violates the
Appointments Clause of the
Constitution. This argument is
summarized as follows: (a) The section
106 rule that went into effect in 1999
(1999 rule) was developed and adopted
in violation of the Appointments Clause
due to the participation of the Chairman
of the National Trust on Historic
Preservation (the Trust) and the
President of the National Conference of
State Historic Preservation Officers
(NCSHPO) (both of whom are members
of the Council not appointed by the
President) in the development and
adoption of that 1999 rule; and (b) since
the content of that 1999 rule was used
as the proposed rule in the present
rulemaking, the present rulemaking
process is incurably tainted and
unconstitutional.
The Council strongly disagrees with
such arguments. As has been stated
before, the Trust and NCSHPO have not
participated in any way whatsoever in
the deliberations, decisions, votes, or
any other Council activities related to
this rulemaking. On June 23, 2000, the
Council membership, minus the
representatives of the Trust and
NCSHPO, took a new vote on the
adoption of the 1999 rule. It voted 16-
0 in favor of the 1999 rule. As has been
stated above, that 1999 rule was the
culmination of six years of work by the
Council members, Council staff, public
comments and public meetings.
Again without the participation of the
representatives of the Trust and
NCSHPO, the Council proceeded to vote
unanimously in favor of proceeding
with the present rulemaking process,
using the text of the 1999 rule as the
proposed rule. Many of these Council
members (all Presidential appointees)
had participated in the drafting and
original, unanimous adoption of the
1999 rule on February of 1999. On June
23, 2000, they decided to use that 1999
rule as the proposed rule. On November
17, 2000, after taking into account
public comment and changing the
proposed rule as they deemed
appropriate, these Presidentially
appointed Council members (without
the participation of the representatives
of the Trust and NCSHPO) voted to
adopt the final rule now being
published.
Any prior involvement in the rule
does not represent the exercise of
significant authority pursuant to the
laws of the United States contemplated
by the Appointments Clause. The
Presidential appointees considering the
draft, proposed rule during the 2000
rulemaking process were at full liberty
to vote against it, amend it, or adopt it.
In the end, the final decision to move
forward with such draft was in their
power.
In the present mlemaking, any act
that could arguably be deemed an
exercise of significant authority has
been carried out solely by the Council's
Presidential appointees.
Other Legal Issues
Certain comments indicated a belief
that the proposed rule violates the
Establishment Clause of the
Constitution. The arguments stated that
to the extent the proposed rule requires
Federal agencies to conform their
decisionmaking under section 106 based
on the "religious and cultural
significance" of properties (as
determined by Tribes) it results in an
excessive entanglement between the
government and religion, impermissibly
restricts the use of public lands on the
basis of religion, and impermissibly
establishes or favors religion, in
violation of the Establishment Clause.
The Council strongly disagrees. The
rule does not require Federal agencies to
conform their decisionmaking based on
the religious and cultural significance of
properties. As stated before, the NHPA
and the rule only clarify that properties
of religious and cultural significance to
Tribes "maybe determined to be
eligible for inclusion on the National
Register." section 101(d)(6)(A) of the
NHPA. Like any other property of any
kind, in order for properties with such
significance to be considered in the
section 106 process, they must first meet
the established, objective, secular
criteria of the National Register of
Historic Places. The determination as to
whether a property meets that criteria is
made by the Federal agency in
concurrence with the SHPO/THPO or,
in the case of disagreement, by the
Keeper of the National Register.
Furthermore, once a historic property
has been so identified, all that Federal
agencies are required to do is to take
into account the effects of their
undertaking on such property. Nothing
whatsoever in the rule imposes an
obligation on the Federal agency to
change, reject or approve an
undertaking based on the religious and
cultural significance of a property.
The rule and section 101(d){6) of the
NHPA only require consultation with
Indian Tribes regarding those historic
properties of significance to them. The
Federal agency must consult with such
Tribes, but is nowhere required to abide
by the opinions expressed by the Tribes
in such consultations. Furthermore,
such consultation provisions are fully
justified and reasonable. They do not
provide Tribes with a "special
treatment," but rather a rational
treatment. Just as it would be common
sense for a person to consult, for
example, with the Navy in order to seek
a better understanding of the history of
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Federal Register/Vol. 65, No. 239/Tuesday, December 12, 2000/Rules and Regulations 77717
Pearl Harbor, it is more than rational to
go to Tribes to seek a better
understanding of historic properties to
which they attach a religious and
cultural significance. Due to their
history and experience with such
properties, such Tribes are in a specially
advantageous position to provide
valuable information about them. At the
very least, the Council believes that
these Tribal consultation provisions of
the rule and of section 101(d)(6) of the
NHPA are tied rationally to the
fulfillment of the Federal Government's
unique obligations towards Tribes. See
Morton v. Mancari, 417 U.S. 535 (1974).
IV. Description of Meaning and Intent
of Specific Sections
The following information clarifies
the meaning and intent behind •
particular sections of the final rule.
Subpart A—Purposes and Participants
Section 800.l(b). This section makes
clear that references in the section 106
regulations are not intended to give any
additional authority to implementing
guidelines, policies or procedures
issued by any other Federal agency.
Where such provisions are cited, they
are simply to assist users in finding
related guidance, which is non-binding,
or requirements of related laws, which
may be mandatory depending on the
particular law itself.
Section 800. l(c). The purpose of this
section is to emphasize the flexibility an
Agency Official has in carrying out the
steps of the section 106 process, while
acknowledging that early initiation of
the process is essential and that actions
taken to meet the procedural
requirements must not restrict the
effective consideration of alternatives
related to historic preservation issues in
later stages of the process.
Section 800.2(a). The term "Agency
Official" is intended to include those
Federal officials who have the effective
decision making authority for an
undertaking. This means the ability to
agree to such actions as may be
necessary to comply with section 106
and to ensure that any commitments
made as a result of the section 106
process are indeed carried out. This
authority and the legal responsibilities
under section 106 may be assumed by
non-Federal officials only when there is
clear authority for such an arrangement
under Federal law, such as under
certain programs administered by the
Department of Housing and Urban
Development. This subsection indicates
that the Federal Agency must ensure
that the Agency Official "takes . . .
financial responsibility for section 106
compliance . . ." This phrase is not to
be construed as prohibiting Federal
agencies from passing certain section
106 compliance costs to applicants.
Such a construction of the regulation
would contravene section 110(g) of the
NHPA and 16 U.S.C. 469c-2. The intent
behind the reference to "financial
responsibility" in the regulation is, as
stated above, to ensure that the Agency
Official has the effective decision
making authority for an undertaking.
Section 800.2(a)(l). This reference to
the Secretary's professional standards is
intended to remind Federal agencies
that this independent but related
provision of the Act may affect their
compliance with section 106.
Section 800.2(a)(2). This provision
allows, but does not require, Federal
agencies to designate a lead agency for
section 106 compliance purposes. The
lead agency carries out the duties of the
Agency Official for all aspects of the
undertaking. The other Federal agencies
may assist the lead agency as they
mutually agree. When compliance is
completed, the other Federal agencies
may use the outcome to document their
own compliance with section 106 and
must implement any provisions that
apply to them. This provision does not
prohibit an agency to independently
pursue compliance with section 106 for
its obligations under section 106,
although this should be carefully
coordinated with the lead agency. A
lead agency can sign the Memorandum
of Agreement for other agencies, so long
as that is part of the agreement among
the agencies for creating the lead agency
arrangement. It should also be clear in
the Memorandum of Agreement.
Section 800.2(a)(4). This section sets
forth the general concepts of
consultation. It identifies the duty of
Federal agencies to consult with other
partes at various steps in the section 106
process and acknowledges that
consultation varies depending on a
variety of factors. It also encourages
agencies to coordinate section 106
consultation with that required under
other Federal laws and to use existing
agency processes to promote efficiency.
Section 800.2(b). The Council will
generally not review the determinations
and decisions reached in accordance
with these regulations by the Agency
Official and appropriate consulting
parties and not participate in the review
of most section 106 cases. However,
because the statutory obligation of the
Federal agency is to afford the Council
a reasonable opportunity to comment on
its undertaking's effects upon historic
properties, the Council will oversee the
section 106 process and formally
become a party in individual
consultations when it determines there
are sufficient grounds to do so. These
are set forth in Appendix A. The
Council also will provide participants in
the section 106 process with its advice
and guidance in order to facilitate
completion of the section 106 review.
Section 800.2(c). This section sets a
standard for involving various
consulting parties. The objective is to
provide parties with an effective
opportunity to participate in the section
106 process, relative to the interest they
have to the historic preservation issues
at hand.
Section 800.2(c)(l). This section
recognizes the central role of the SHPO
in working with the Agency Official on
section 106 compliance in most cases. It
also delineates the manner in which the
SHPO may get involved in the section
106 process when a THPO has assumed
SHPO functions on tribal lands.
Section 800.2(c)(2). The role of THPO
was created in the 1992 amendments to
the Act. This section tracks the statutory
provision relating to THPO assumption
of the SHPO's section 106 role on tribal
lands. In such circumstances, the THPO
substitutes for the SHPO and the SHPO
participates in the section 106 process
only as specified in 800.2(c)(l) or as a
member of the public. This section also
specifies that in those instances where
an undertaking occurs on or affects
properties on tribal lands and a tribe has
not officially assumed the SHPO's
section 106 responsibilities on those
lands, the Agency Official still consults
with the SHPO, but also consults with
a representative designated by the
Indian tribe. Such designation is made
in accordance with tribal law and
procedures. However, if the tribe has
not designated such a representative,
the Agency Official would consult with
the tribe's chief elected official, such as
the tribal chairman.
Section 800.2(c)(3). This section
embodies the statutory requirement for
Federal agencies to consult with Indian
tribes and Native Hawaiian
organizations throughout the section
106 process when they attach religious
and cultural significance to historic
properties that may be affected by an
undertaking. It is intended to promote
continuing and effective consultation
with those parties throughout the
section 106 process. Such consultation
is intended to be conducted in a manner
that is fully cognizant of the legal rights
of Indian tribes and that is sensitive to
their cultural traditions and practices.
Section 800.2(c)(3)(i). This subsection
has two main purposes. First, it
emphasizes the importance of involving
Indian tribes and Native Hawaiian
organizations early and fully at all
stages of the section 106 process.
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Second, Federal agencies should solicit
tribal views in a manner that is sensitive
to the governmental structures of the
tribes, recognizing that confidentiality
and communication issues may require
Federal agencies to allow more time for
the exchange of information. Also, this
section states that the Agency Official
must make a "reasonable and good faith
effort" to identify interested tribes and
Native Hawaiian organizations. This
means that the Agency Official may
have to look beyond reservations and
tribal lands in the project's vicinity to
seek information on tribes that had been
historically located in the area, but are
no longer there.
Section 800.2(c)(3)(iii). This
subsection emphasizes the need to
consult with Indian tribes on a
government-to-government basis. The
Agency Official must consult with the
appropriate tribal representative, who
must be selected or designated by the
tribe to speak on behalf of the tribe.
Matters of protocol are important to
Indian tribes. Indian tribes and Native
Hawaiian organization may be reluctant
to share information about properties to
which they attach religious and cultural
significance. Federal agencies should
recognize this and be willing to identify
historic properties without
compromising concerns about
confidentiality. The Agency Official
should also be sensitive to the internal
workings of a tribe and allow the time
necessary for the tribal decision making
process to operate.
Section 800.2(c)(3)(iv). This
subsection reminds Federal agencies of
the statutory duty to consult with Indian
tribes and Native Hawaiian
organizations whether or not the
undertaking or its effects occur on tribal
land. Agencies should be particularly
sensitive in identifying areas of
traditional association with tribes or a
Native Hawaiian organizations, where
historic properties to which they attach
religious and cultural significance may
be found.
Section 800.2(c)(3)(v). Some Federal
agencies have or may want to develop
special working relationships with
Indian tribes or Native Hawaiian
organization to provide specific
arrangements for how they will adhere
to the steps in the section 106 process
and enhance the participation of tribes
and Native Hawaiian organizations.
Such agreements are not mandatory;
they may be negotiated at the discretion
of Federal agencies. The agreements
cannot diminish the rights set forth in
the regulations for other parties, such as
the SHPO, without that party's express
consent.
Section 800.2(c)(3)(vi). The signature
of tribes is required where a
Memorandum of Agreement concerns
tribal lands. However, if a tribe has not
formally assumed the SHPO's
responsibilities under section 101(d)(2)
the tribe may waive its signature rights
at its discretion. This will allow tribes
the flexibility of allowing agreements to
go forward regarding tribal land, but
without condoning the agreement with
their signature.
Section 800.2(c)(4). Affected local
governments must be given consulting
party status if they so request. Under
§ 800.3(f)(l), Agency Officials are
required to invite such local
governments to be consulting parties.
This subsection provides for that status
and also reminds Federal agencies that
some local governments may act as the
Agency Official when they have
assumed section 106 legal
responsibilities, such as under certain
programs administered by the
Department of Housing and Urban
Development.
Section 800.2(c)(5). Applicants for
Federal assistance or for a Federal
permit, license or other approval are
entitled to be consulting parties. Under
§ 800.3(f)(l), Agency Officials are
required to invite them to be consulting
parties. Also, Federal agencies have the
legal responsibility to comply with
section 106 of the NHPA. In fulfilling
their responsibilities, Federal agencies
sometimes choose to rely on applicants
for permits, approvals or assistance to
begin the 106 process. The intent was to
allow applicants to contact SHPOs and
other consulting parties, but agencies
must be mindful of their government-to-
government consultation
responsibilities when dealing with
Indian tribes. If a Federal agency
implements its 106 responsibilities in
this way, the Federal agency remains
legally responsible for the
determinations. Applicants that may
assume responsibilities under a
Memorandum of Agreement must be
consulting parties in the process leading
to the agreement.
Section 800.2(c)(6). This section
allows for the possibility that other
individuals or entities may have a
demonstrated special interest in an
undertaking and that Federal agencies
and SHPO/THPOs should consider the
involvement of such individuals or
entities as consulting parties. This might
include property owners directly
affected by the undertaking, non-profit
organizations with a direct interest in
the issues or affected businesses. Under
§ 800.3(f)(3), upon written request and
in consultation with the SHPO/THPO
and any Indian tribe upon whose tribal
lands an undertaking occurs or affects
historic properties, an Agency Official
may allow certain individuals under
§ 800.2(c)(6) to become consulting
parties.
Section 800.2(d)(l). Public
involvement is a critical aspect of the
106 process. This section is intended to
set forth a standard that Federal
agencies must adhere to as they go
through the section 106 process. The
type of public involvement will depend
upon various factors, including but not
limited to, the nature of the
undertaking, the potential impact, the
historic property, and the likely interest
of the public. Confidentiality concerns
include those specified in section 304 of
the Act and legitimate concerns about
proprietary information, business plans
and privacy of property owners.
Section 800.2(d)(2). This subsection is
intended to set the notice standard.
Notice, with sufficient information to
allow meaningful comments, must be
provided to the public so that the public
can express its views during the various
stages and decision making points of the
process.
Section 800.2(d)(3). It is intended that
Federal agencies have flexibility in how
they involve the public, including the
use of NEPA and other agency planning
processes, as long as opportunities for
such public involvement are adequate
and consistent with subpart A of the
regulations.
Subpart B—The section 106 Process
Section 800.3. This new section is
intended to encourage Federal agencies
to integrate the section 106 process into
agency planning at its earliest stages.
Section 800.3(a). The determination
of whether or not an undertaking exists
is the Agency Official's determination.
The Council may render advice on the
existence of an undertaking, but
ultimately this remains a Federal agency
decision.
Section 800.3(a)(l). This section
explains that if there is an undertaking,
but it is not a type of activity that has
the potential to affect a historic
property, then the agency is finished
with its section 106 obligations. There is
no consultation requirement for this
'decision.
Section 800.3(a)(2). This is a reminder
to Federal agencies that adherence to
the standard 106 process in Subpart B
is inappropriate where the undertaking
is governed by a program alternative
established pursuant to § 800.14.
Section 800.3(b). This section does
not impose a mandatory requirement on
Federal agencies. It emphasizes the
benefit of coordinating compliance with
related statutes so as to enhance
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efficiency and avoid duplication of
efforts, but the decision is up to the
Agency Official. Agencies are
encouraged to use the information
gathered for these other processes to
meet section 106 needs, but the
information must meet the standards in
these regulations.
Section 800.3(c). This sets forth the
responsibility to properly identify the
appropriate SHPO or THPO that must be
consulted. If the undertaking is on or
affects historic properties on tribal
lands, then the agency must determine
what tribe is involved and whether the
tribe has assumed the SHPO's
responsibilities for section 106 under
section 101(d)(2) of the Act. A list of
such tribes is available from the
National Park Service.
Section 800.3(c)(l). This section
reiterates that the tribe may assume the
role of the SHPO on tribal land and
tracks the language of the Act in
specifying how certain owners of
property on tribal lands can request
SHPO involvement in a section 106 case
in addition to the THPO.
Section 800.3(c)(2). This section is the
State counterpart to Federal lead
agencies and has the same effect. It
allows a group of SHPOs to agree to
delegate their authority under these
regulations for a specific undertaking to
one SHPO.
Section 800.3(c)(3). This section
reinforces the notion that the conduct of
consultation may vary depending on the
agency's planning process, the nature of
the undertaking and the nature of its
effects.
Section 800.3(c)(4). This section
makes it clear that failure of an SHPO/
THPO to respond within the time
frames set by the regulation permit the
agency to assume concurrence with the
finding or to consult about the finding
or determination with the Council in the
SHPO/THPO's absence. It also makes
clear that subsequent involvement by
the SHPO/THPO is not precluded, but
the SHPO/THPO cannot reopen a
finding or determination that it failed to
respond to earlier.
Section 800.3(d). This section
specifies that, on tribal lands, the
Agency Official consults with both the
Indian tribe and the SHPO when the
tribe has not formally assumed the
responsibilities of the SHPO under
section 101{d)(2) of the Act. It also
allows the section 106 process to be
completed even when the SHPO has
decided not to participate in the
process, and for the SHPO and an
Indian tribe to develop tailored
agreements for SHPO participation in
reviewing undertakings on the tribe's
lands.
Section 800.3(e). This section requires
the Agency Official to decide early how
and when to involve the public in the
section 106 process. It does not require
a formal "plan," although that might be
appropriate depending upon the scale of
the undertaking and the magnitude of
its effects on historic properties.
Section 800.3(f). This is a particularly
important section, as it requires the
Agency Official at an early stage of the
section 106 process to consult with the
SHPO/THPO to identify those
organizations and individuals that will
have the right to be consulting parties
under the terms of the regulations.
These include local governments,
Indian tribes and Native Hawaiian
organizations and applicants for Federal
assistance or permits, especially those
who may assume a responsibility under
a Memorandum of Agreement (see
§ 800.6(c)(2)(ii)). Others may request to
be consulting parties, but that decision
is up to the Agency Official.
Section 800.3(g). This section makes it
clear that an Agency Official can
combine individual steps in the section
106 process with the consent of the
SHPO/THPO. Doing so must protect the
opportunity of the public and
consulting partes to participate fully in
the section 106 process as envisioned in
§800.2.
Section 800.4(a). This section sets
forth the consultative requirements
involved in the scoping efforts at the
beginning stages of the identification
process. The Agency Official must
consult with the SHPO/THPO in
fulfilling the steps in subsections (1)
through (4). This section emphasizes the
need to consult with the SHPO/THPO at
all steps in the scoping process. It also
highlights the need to seek information
from Indian tribes and Native Hawaiian
organizations with regard to properties
to which they attach religious and
cultural significance, while being
sensitive to confidentiality concerns.
Where Federal agencies are engaged in
an action that is on or may affect
ancestral, aboriginal or ceded lands,
Federal agencies must consult with
Indian tribes and Native Hawaiian
organizations with regard to historic
properties of traditional religious and
cultural significance on such lands.
Section 800.4(b). This section sets out
the steps an Agency Official must follow
to identify historic properties. It is close
to the section 106 process under the
1986 regulations, with increased
flexibility of timing and greater
involvement of Indian tribes and Native
Hawaiian organizations in accordance
with the 1992 amendments to the Act.
Section 800.4(b)(l). This section on
level of effort required during the
identification processes has been added
to allow for flexibility. It sets the
standard of a reasonable and good faith
effort on behalf of the agency to identify
properties and provides that the level of
effort in the identification process
depends on numerous factors including,
among others listed, the nature of the
undertaking and its corresponding
potential effects on historic properties.
Section 800.4(b)(2). This new section
is also intended to provide Federal
agencies with flexibility when several
alternatives are under consideration and
the nature of the undertaking and its
potential scope and effect has therefore
not yet been completely defined. The
section also allows for deferral of final
identification and evaluation if
provided for in an agreement with the
SHPO/THPO or other circumstances. .
Under this phased alternative, Agency
Officials are required to follow up with
full identification and evaluation once
project alternatives have been refined or
access has been gained to previously
restricted areas. Any further deferral of
final identification would complicate
the process and jeopardize an adequate
assessment of effects and resolution of
adverse effects.
Section 800.4(c). This section sets out
the process for determining the National
Register eligibility of properties not
previously evaluated for historic
significance.
Section 800.4(c)(2). This section
provides that if an Indian tribe or Native
Hawaiian organization disagrees with a
determination of eligibility involving a
property to which it attaches religious
and cultural significance, then the tribe
can ask the Council to request that the
Agency Official obtain a determination
of eligibility. The Council retains the
discretion as to whether or not it should
make the request of the Agency Official.
This section was intended to provide a
way to ensure appropriate
determinations regarding properties,
located off tribal lands, to which tribes
attach religious and cultural
significance.
Section 800.4(d)(l). This section
describes the closure point in the
section 106 process where no historic
properties are found or no effects on
historic properties are found. Consulting
parties must be specifically notified of
the determination, but members of the
public need not receive direct
notification; the Federal agency must
place its documentation in a public file
prior to approving the undertaking, and
provide access to the information when
requested by the public. Once the
consulting parties are notified, the
SHPO/THPO has 30 days to object to the
determination. The Council may also
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77720 Federal Register/Vol. 65, No. 239/Tuesday, December 12, 2000/Rules and Regulations
object on its own initiative within the
time period. Lack of such objection
within the 30 day period means that the
agency need not take further steps in the
Section 106 process.
Section 800.4(d)(2). This section
requires that the Federal agency proceed
to the adverse effect determination step
where it finds that historic properties
may be affected or the SHPO/THPO or
Council objects to a no historic
properties affected finding. The agency
must notify all consulting parties.
Section 800.5(a). This section
provides for Indian tribe and Native
Hawaiian organization consultation
where historic properties to which they
attach religious and cultural
significance are involved. This section
also requires the Agency Official to
consider the views of consulting parties
and the public that have already been
provided to the Federal agency.
Section 800.5(a)(l). This section
codifies the practice of the Council in
considering both direct and indirect
effects in making an adverse effect
determination. This section allows for
consideration of effects on the
qualifying characteristics of a historic
property that may not have been part of
the property's original eligibility
evaluation. The last sentence in this
section is intended to amplify the
indirect effects concept, similar to the
NEPA regulations, which calls for
consideration of such effects when they
are reasonably foreseeable effects.
Section 800.5(a)(2)(ii). The list of
examples of adverse effects has been
modified by eliminating the exceptions
to the adverse effect criteria. However,
if a property is restored, rehabilitated,
repaired, maintained, stabilized,
remediated or otherwise changed in
accordance with the Secretary's
standards, then it will not be considered
an adverse effect.
Section 800.5(a)(2)(iii). This
subsection, along with §800.5(a)(2)(I),
would encompass recovery of
archeological data as an adverse effect,
even if conducted in accordance with
the Secretary's standards. This
acknowledges the reality that
destruction of a site and recovery of its
information and artifacts is adverse. It is
intended that in eliminating data
recovery as an exception to the adverse
effect criteria, Federal agencies will be
more inclined to pursue other forms of
mitigation, including avoidance and
preservation in place, to protect
archeological sites.
Section 800.5(a)(2)(iv). This section
tracks the National Register criteria
regarding the relation of alterations to a
property's use or setting to the
significance of the property.
Section 800.5(a)(2)(v). This section
tracks the language of the National
Register criteria as it pertains to the
property's integrity.
Section 800.5(a)(2)(vi). This section
acknowledges that where properties of
religious and cultural significance to
Indian tribes or Native Hawaiian
organizations are involved, neglect and
deterioration may be recognized as
qualities of those properties and thus
may not necessarily constitute an
adverse effect.
Section 800.5(a)(2)(vii). If a property
is transferred leased or sold out of
Federal ownership with proper
preservation restrictions, then it will not
be considered an adverse effect.
Transfer between Federal agencies is not
an adverse effect per se; the purpose of
the transfer should be evaluated for
potential adverse effects, so that they
can be considered before the transfer
takes place.
Section 800.5(a)(3). This section is
intended to allow flexibility in Federal
agency decision making processes and
to recognize that phasing of adverse
effect determinations, like identification
and evaluation, is appropriate in certain
planning and approval circumstances,
such as the development of linear
projects where major corridors are first
assessed and then specific route
alignment decisions are made
subsequently.
Section 800.5(b). This section allows
SHPO/THPO's the ability to suggest
changes in a project or suggest
conditions so that adverse effects can be
avoided and thus result in a no adverse
effect determination. It is also written to
emphasize that a finding of no adverse
effect is only a proposal when the
Agency Official submits it to the SHPO/
THPO for review. This provision also
acknowledges that the practice of
"conditional No Adverse Effect
determinations" is acceptable.
Section 800.5(c). The Council will not
review "no adverse effect"
determinations on a routine basis. The
Council will intervene and review no
adverse effect determinations if it deems
it appropriate based on the criteria
listed in Appendix A or if the SHPO/
THPO or another consulting party and
the Federal agency disagree on the
finding and the agency cannot resolve
the disagreement. The SHPO/THPO and
any consulting party wishing to disagree
to the finding must do so within the 30-
day review period. If Indian tribes or
Native Hawaiian organizations disagree
with the finding, they can request the
Council's review directly, but this must
be done within the 30 day review
period. If a SHPO/THPO fails to respond
to an Agency Official finding within the
30 day review period, then the Agency
Official can consider that to be SHPO/
THPO agreement with the finding.
When a finding is submitted to the
Council, it will have 15 days for review;
if it fails to respond within the 15 days,
then the Agency Official may assume
Council concurrence with the finding.
When it reviews no adverse effect
determinations, the Council will limit
its review to whether or not the criteria
have been correctly applied.
Section 800.5(d). Agencies must
retain records of their findings of no
adverse effect and make them available
to the public. This means that the public
should be given access to the
information, subject to FOIA and other
statutory limits on disclosure such as
section 304 of the NHPA, when they so
request. Failure of the agency to carry
out the undertaking in accordance with
the finding requires the Agency Official
to reopen the section 106 process and
determine whether the altered course of
action constitutes an adverse effect. A
finding of adverse effect requires further
consultation on ways to resolve it.
Section 800.6(a)(l). When adverse
effects are found, the consultation must
continue among the Federal agency,
SHPO/THPO and consulting parties to
attempt to resolve them. The Agency
Official must notify the Council when
adverse effects are found and should
invite the Council to participate in the
consultation when the circumstances in
§ 800.6(a)(l)(i)(A)-(C) exist. A
consulting party may also request the
Council to join the consultation. The
Council will decide on its participation
within 15 days of receipt of a request,
basing its decision on the criteria set
forth in Appendix A. Whenever the
Council decides to join the consultation,
it must notify the Agency Official and
the consulting parties. It must also
advise the head of the Federal agency of
its decision to participate. This is
intended to keep the policy level of the
Federal agency apprized of those cases
that the Council has determined present
issues significant enough to warrant its
involvement.
Section 800.6(a)(2). This section
allows for the entry of new consulting
parties if the agency and the SHPO/
THPO (and the Council, if participating)
agree. If they do not agree, it is desirable
for them to seek the Council's opinion
on the involvement of the consulting
party. Any party, including applicants,
licensees or permittees, that may have
responsibilities under a Memorandum
of Agreement must be invited to
participate as consulting parties in
reaching the agreement.
Section 800.6(a)(3). This section
specifies the Agency Official's
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obligation to provide project
documentation to all consulting partes
at the beginning of the consultation to
resolve adverse effects. Particular note
should be made of the reference to the
confidentiality provisions.
Section 800.6(a)(4). The Federal
agency must provide an opportunity for
members of the public to express their
views on an undertaking. The provision
embodies the principles of flexibility,
relating the agency effort to various
aspects of the undertaking and its effects
upon historic properties. The Federal
agency must provide them with notice
such that the public has enough time
and information to meaningfully
comment. If all relevant information
was provided at earlier stages in the
process in such a way that a wide
audience was reached, and no new
information is available at this stage in
the process that would assist in the
resolution of adverse effects, then a new
public notice may not be warranted.
However, this presumes that the public
had the opportunity to make its views
known on ways to resolve the adverse
effects.
Section 800.6(a)(5). Although it is in
the interest of the public to have as
much information as possible in order
to provide meaningful comments, this
section acknowledges that information
may be withheld in accordance with
section 304 of the NHPA.
Section 800.6(b). If the Council is not
a part of the consultation, then a copy
of the Memorandum of Agreement must
be sent to the Council so that the
Council can include it in its files to have
an understanding of a Federal agency's
implementation of section 106. This
does, not provide the Council an
opportunity to reopen the specific case,
but may form the basis for other actions
or advice related to an agency's overall
performance in the section 106 process.
Section 800.6(b)(l). 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 SHPO/THPO
and filed with required documentation
with the Council. This filing is the
formal conclusion of the section 106
process and must occur before the
undertaking is approved. Standard
treatments adopted by the Council may
set expedited ways for competing
memoranda of agreement in certain
circumstances.
Section 800.6(b)(2). When the Council
is involved, the consultation proceeds
in the same manner, but the agreement
of the Agency Official, the SHPO/THPO
and the Council is required for a
Memorandum of Agreement.
Section 800.6(c). This section details
the provisions relating to Memoranda of
Agreement. This document evidences
an agency's 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.
Section 800.6(c)(l). This section sets
forth the rights of signatories to an
agreement and identifies 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.
Section 800.6(c)(2). Certain parties
may be invited to be signatories in
addition to those specified in
§ 800.6(c)(l). 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
MO As, they have the same rights to
terminate or amend the MOA as the
other signatories.
Section 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.
Sections 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.
Section 800.7. This section specifies
what happens when the consulting
parties cannot reach agreement. Usually
when consultation is terminated, the
Council renders advisory comments to
the head of the agency, which must be
considered when the final agency
decision on the undertaking is made.
Section 800.7(a)(l). This section
requires that the head of the agency or
an Assistant Secretary or officer with
major department-wide or agency-wide
responsibilities must request Council
comments when the Agency Official
terminates consultation. Section 110(1}
of the NHPA requires heads of agencies
to document their decision when an
agreement has not been reached under
section 106. If the agency head is
responsible for documenting the
decision, it is appropriate that the same
individual request the Council's
comments.
Section 800.7(a)(2). This section
allows the Council and the Agency
Official to conclude the section 106
process with a Memorandum of
Agreement between them if the SHPO
terminates consultation.
Section 800.7(a)(3). If a THPO
terminates consultation, there can be no
agreement with regard to undertakings
that are on or affect properties on tribal
lands and the Council will issue formal
comments. This provision respects the
tribe's unique sovereign status with
regard to its lands.
Section 800.7(a)(4). This section
governs cases where the Council
terminates consultation. In that case, the
Council has the duty to notify all
consulting parties prior to commenting.
The role given to the Federal
Preservation Officer is intended to fulfill
the NHPA's goal of having a central
official in each agency to coordinate and
facilitate the agency's involvement in
the national historic preservation
program.
Section 800.7(b). This section allows
the Council to provide advisory
comments even though it has signed a
Memorandum of Agreement. It is
intended to give the Council the
flexibility to provide comments even
where it has agreed to sign an MOA.
Such comments might elaborate upon
particular matters or provide
suggestions to Federal agencies for
future undertakings.
Section 800.7(cj. This section gives
the Council 45 days to provide its
comments to the head of the agency for
a response by the agency head. When
submitting its comments, the Council
will also provide the comments to the
Federal Preservation Officer, among
others, for information purposes.
Section 800.7(c)(4). This section
specifies what it means to "document
the agency head's decision" as required
by section 110(1) when the Council
issues its comment to the agency head.
Section 800.8. This major section
guides how Federal agencies can
coordinate the section 106 process with
NEPA compliance. It is intended to
allow compliance with section 106 to be
incorporated into the NEPA
documentation process while preserving
the legal requirements of each statute.
Section 800.8(a)(l). This section
encourages agencies to coordinate NEPA
and section 106 compliance early in the
planning process. It emphasizes that
impacts on historic properties should be
considered when an agency makes
evaluations of its NEPA obligations, but
makes clear that an adverse effect
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77722 Federal Register/Vol. 65, No. 239/Tuesday, December 12, 2000/Rules and Regulations
finding does not automatically trigger
preparation of an EIS.
Section 800.8(a)(2). This section
encourages consulting parties in the
section 106 process to be prepared to
consult with the Agency Official early
in the NEPA process.
Section 800.8(a)(3). This section
encourages agencies to include historic
preservation issues in the development
of various NEPA assessments and
documents. This is essential for
effective coordination between the two
processes. It is intended to discourage
agencies from postponing consideration
of historic properties under NEPA until
later initiation of the section 106
process.
Section 800.8(b). This section notes
that a project, activity or program that
falls within a NEPA categorical
exclusion may still require section 106
review. An exclusion from NEPA does
not necessarily mean that section 106
does not apply.
Section 800.8(c). This section offers
Federal agencies an opportunity for
major procedural streamlining when
NEPA and section 106 both apply to a
project. It allows the agency, when
specific standards are met, to substitute
preparation of an EA or an EIS for the
specific steps of the section 106 process
set out in these regulations.
Section 800.8(c)(l). This section lists
the standards that must be adhered to
when developing NEPA documents that
are intended to incorporate 106
compliance. They are intended to
ensure that the objectives of the section
106 process are being met even though
the specific steps of the process are not
being followed.
Section 800.8(c)(2). This section
provides for Council and consulting
party review of the agency's
environmental document within
NEPA's public comment review time
frame. Consulting parties and the
Council may object prior to or within
this time frame to adequacy of the
document.
Section 800.8(c)(3). If there is an
objection to the NEPA document, the
Council has 30 days to state whether or
not it agrees with the objection. If the
Council agrees with the objection, the
Agency Official must complete the
section 106 process through
development of a Memorandum of
Agreement or obtaining formal Council
comment (§ 800.6-7). If it does not, then
the Agency Official can complete its
review under § 800.8.
Section 800.8(c)(4). This subsection
explains how Agency Officials using
NEPA coordination must finalize their
section 106 compliance for those cases
where an adverse effect is found. The
Agency must document the proposed
mitigation measures. A binding
commitment with the proposed
measures must be adopted. In the case
of a FONSI, the binding commitment
must be in the form of an MOA, drafted
in accordance with §800.6(c). Although
the regulations do not send Agency
Officials back to § 800.6(b) (regarding
consultation towards an MOA), Agency
Officials are reminded of the standards
they must still follow under
§ 800.8(c)(l), and specifically the
mitigation measures' consultation under
§ 800.8(c)(l)(v). In the case of an EIS,
although a Memorandum of Agreement
under § 800.6(c) is not required, an
appropriate binding commitment must
still be adopted. Finally, the subsection
also clarifies the Agency Official's
obligation to ensure that its approval of
the undertaking is conditioned
accordingly.
Section 800.8(c)(5). This section
requires Federal agencies to supplement
their NEPA documents or abide by
§§ 800.3 through 800.6 in the event of a
change in the proposed undertaking that
alters the undertaking's impact on
historic properties.
Section 800.9. This section delineates
the methods the Council will use to
oversee the operation of the section 106
process. The Council draws upon its
general advisory powers and specific
provisions of the NHPA to conduct
these actions.
Section 800.9(a). This section
emphasizes the right of the Council to
provide advice at any time in the
process on matters related to the section
106 process.
Section 800.9(b). A foreclosure means
that an agency has gone forward with an
undertaking to such an extent that the
Council can not provide meaningful
comments. A finding of foreclosure by
the Council means that the Council has
determined that the Federal agency has
not fulfilled its section 106
responsibilities with regard to the
undertaking. Such a finding does not
trigger any specific action, but
represents the opinion of the Council as
the agency charged by statute with
issuing the regulations that implement
section 106.
Section BOO.Q(c). This section
reiterates the requirements of section
110(k) of the Act added in 1992. It also
provides a process by which the Council
will comment if the Federal agency
decides that circumstances may justify
granting the assistance. If after
considering the comments, the Federal
agency does decide to grant the
assistance, then the Federal agency must
comply with section 106 for any historic
properties that still may be affected.
This does not require duplication of
consultation that may have already
taken place with the Council in the
course of addressing 110(k), but is
intended to ensure that the agency has
meaningful consultation with the
Council as to mitigating adverse effects
if the agency decides to proceed with
approving the undertaking.
Section 800.9(d). As the Council
reduces its involvement in routine
cases, it will be focusing its efforts more
and more on agency programs and
overall compliance with the section 106
process. The NHPA authorizes the
Council to obtain information from
Federal agencies and make
recommendations on improving
operation of the section 106 process. If
the Council finds that an agency or a
SHPO/THPO has not carried out its
section 106 responsibilities properly, it
may enter the section 106 process on an
individual case basis to make
improvement. The Council may also
review agency operations and
performance and make specific
recommendations for improvement
under section 202(a)(6) of the Act.
Section 800.10. This section provides
a process for how Federal agencies must
afford the Council a reasonable
opportunity to comment on historic
landmarks. It is largely unchanged from
the process under previous regulations.
Section 800.11. This section sets forth
the requirements for documentation at
various steps in the section 106 process.
It makes documentation requirements
clearer and promotes agency use of
documentation prepared for other
planning requirements.
Section 800.11(a). The section allows
for the phasing of documentation
requirements when an agency is
conducting phased identification and
evaluation. The Council can advise on
the resolution of disputes over
adherence to documentation standards.
However, the ultimate responsibility for
compiling adequate documentation rests
with the agency. During the
consideration of any disputes over
documentation, the process is not
formally suspended. However, agencies
should resolve significant disputes
before going forward too far in the
section 106 process in order to avoid
subsequent delays.
Section 800.1 l(bj. This section allows
for the use of documents prepared for
NEPA or other agency planning
processes to fulfill this provision as long
as those documents meet the standards
in this section.
Section 800.11(c). This section is
intended to protect the rights of private
property owners with regard to
proprietary information, and Indian
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Federal Register/Vol. 65, No. 239/Tuesday, December 12, 2000/Rules and Regulations 77723
tribes and Native Hawaiian
organizations with regard to properties
to which they attach religious and
cultural significance. This section
emphasizes that the regulations are
subject to any other Federal statutes
which protect certain kinds of
information from full public disclosure.
The role of the Secretary and the
process of consultation with the Council
are based on the statutory requirements
of section 304 of the Act.
Section 800,ll(d)-(fj. These sections
specify the documentation standards for
various findings or actions in the
section 106 process. They are
incrementally more detailed as the
historic preservation issues become
more substantial or complex. Each is
intended to provide basic information
so that a third-party reviewer can
understand the basis for an agency's
finding or proposed decision.
Section 800.12. This section deals
with emergency situations and generally
follows the approach of previous
regulations.
Section 800.12(a). This section
encourages Federal agencies to develop
procedures describing how the Federal
agency will take into account historic
properties during certain emergency
operations, including imminent threats
to life or property. The nature of the
consultation required in developing
such procedures will vary, depending
upon the extent of actions covered by
the procedures. The procedures must be
approved by the Council if they are to
substitute for Subpart B.
Section 800.12(b). If there are no
agency procedures for taking historic
properties into account during
emergencies, then the Federal agency
may either follow a previously-
developed Programmatic Agreement or
notify the Council, SHPO/THPO and,
where appropriate, an Indian tribe or
Native Hawaiian organization
concerned with potentially affected
resources.Tf possible, the Federal
agency should provide these parties 7
days to comment.
Section 800.12(c). This section
permits a local government that has
assumed section 106 responsibilities to
use the provisions of § 800.12(a) and (b).
However, if the Council or an SHPO/
THPO objects, the local government
must follow the normal section 106
process.
Section 800.12(d). A Federal agency
may use the provisions in § 800.12 only
for 30 days after an emergency or
disaster has been declared, unless an
extension is sought.
Section 800.13. This section deals
with resources discovered after section
106 review has been completed.
Section 800.13(a). This section
emphasizes the utility of developing
Programmatic Agreements to deal with
discoveries of historic properties which
may occur during implementation of an
undertaking. If there is no Programmatic
Agreement to deal with discoveries, and
the Agency Official determines that
other historic properties are likely to be
discovered, then a plan for how
discoveries will be addressed must be
included in a no adverse effect finding
or a Memorandum of Agreement.
Section 800.13(b)(l). This section
states the procedures that must be
followed when construction has not yet
occurred or an undertaking has not yet
been approved. Because a Federal
agency has more flexibility at this stage,
adherence to the consultative process as
set forth in § 800.6 is appropriate.
Section 800.13(b)(2). This section
provides that where an archeological
site has been discovered and where the
Agency Official, SHPO/THPO and any
appropriate Indian tribe or Native
Hawaiian organization agree that it is of
value solely for the data that it contains,
the Agency Official can comply with the
Archeological and Historic Preservation
Act instead of the procedures in this
subpart.
Section 800.13(b)(3). This section sets
forth the procedures that must be
followed when the undertaking has
been approved and construction has
commenced. Development of actions to
resolve adverse effects and notification
to the SHPO/THPO and the Council
within 48 hours of the discovery are
required. Comments from those parties
are encouraged and the agency must
report the actions it ended up taking to
deal with the discovery.
Section 800.13(c). This section allows
an agency to make an expedited field
judgment regarding eligibility of
properties discovered during
construction.
Subpart C—Program Alternatives
Section 800.14. This section lays out
a variety of alternative methods for
Federal agencies to meet their section
106 obligations. They allow agencies to
tailor the section 106 process to their
needs.
Section 800.14(a). Alternate
procedures are a major streamlining
measure that allows tailoring of the
section 106 process to Agency programs
and decisionmaking processes. The
procedures would substitute in whole or
in part for the Council's section 106
regulations. As procedures, they would
include formal Agency regulations, but
would also include departmental or
Agency procedures that do not go
through the formal rulemaking process.
Procedures must be developed in
consultation with various parties as set
forth in the regulations. The public must
have an opportunity to comment on
Alternate procedures. If the Council
determines that they are consistent with
its regulations, the alternate procedures
may substitute for the Council's
regulations. In reviewing alternate
procedures for consistency, the Council
will not require detailed adherence to
every specific step of the process found
under the Council's regulations. The
Council, however, will look for
procedures that afford historic
properties consideration equivalent to
that afforded by the Council's
regulations and that meet the
requirements of section 110(a)(2)(E) of
the Act. If an Indian tribe has
substituted its procedures for the
Council's regulations pursuant to
section 101(d)(5) of the NHPA, then the
Federal agency must follow the
agreement with the Council and the
tribe's substitute regulations for
undertakings on tribal lands.
Section 800.14(b). This section retains
the concept of Programmatic
Agreements. The circumstances under
which a Programmatic Agreement is
appropriate are specified. The section
places Programmatic Agreements into
two general categories: those covering
agency programs and those covering
complex or multiple undertakings. The
section on Agency programs makes clear
that the President of NCSHPO must sign
a nationwide agreement when NCSHPO
has participated in the consultation. If a
Programmatic Agreement concerns a
particular region, then the signature of
the affected SHPOs/THPOs is required.
An individual SHPO/THPO can
terminate its participation in a regional
Programmatic Agreement, but the
agreement will remain in effect for the
other states in the region. Only NCSHPO
can terminate a nationwide
Programmatic Agreement on behalf of
the individual SHPOs. Language is
included to recognize tribal sovereignty
while providing flexibility to Federal
agencies and tribes when developing
Programmatic Agreements. While it
does not prohibit the other parties from
executing a Programmatic Agreement,
the language does limit the effect of the
agreement to non-tribal lands unless the
tribe executes it. However, the language
also authorizes multiple Indian tribes to
designate a representative tribe or tribal
organization to participate in
consultation and sign a Programmatic
Agreement on their behalf.
Requirements for public involvement
and notice are included. The section on
complex or multiple undertakings ties
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77724 Federal Register/Vol. 65, No. 239/Tuesday, December 12, 2000/Rules and Regulations
back to § 800.6 for the process of
creating such programmatic agreements.
Section 800.14[c). Exemptions are
intended to remove from section 106
compliance those undertakings that
have foreseeable effects on historic
properties which are likely to be
minimal. Section 214 of the NHPA gives
the Council the authority to allow for
such exemptions. This section sets forth
the criteria, drawn from the statute, for
exemptions and a process for obtaining
(and terminating) an exemption.
Section 800.14(d). Standard
treatments provide a streamlined
process by which the Council can
establish certain acceptable practices for
dealing with a category of undertakings,
effects, historic properties, or treatment
options. A standard treatment may
modify the application of the normal
section 106 process under certain
circumstances or simplify the steps or
requirements of the regulations. This
section sets forth the process for
establishing a standard treatment and
terminating it.
Section 800.14(e). Program comments
are intended to give the Council the
flexibility to issue comments on a
Federal program or class of
undertakings rather than comment on
such undertakings on a case-by-case
basis. This section sets forth the process
for issuing such comments and
withdrawing them. The Federal agency
is obligated to consider, but not
necessarily follow, the Council's
comments. If it does not, the Council
may withdraw the comment, in which
case the agency continues to comply
with section 106 on a case-by-case basis.
' Section 800.14(f). The requirement for
consultation program alternatives with
Indian tribes and Native Hawaiian
organizations is provided for in this
section. It is an overlay on each of the
Federal program alternatives set forth in
§ 800.14(a)-(e). It provides for
government-to-government consultation
with Indian tribes.
Section 800.15. Tribal, State and
Local Program Alternatives. This section
is presently reserved for future use. The
Council will proceed with the review of
tribal applications for substitution of
tribal regulations for the Council's
section 106 regulations on tribal lands,
pursuant to section 101(d){5) of the Act,
on the basis of informal procedures.
With regard to State agreements, the
Council will keep in effect any currently
valid State agreements until revised
procedures for State agreements take
effect or until the agreement is
otherwise terminated.
Section 800.16. Definitions. This
section includes new definitions to
respond to identified needs for
clarification and to reflect statutory
amendments.
The term "Agency" is defined for ease
of reference.. It tracks the statutory
definition in the NHPA.
The definition of "approval of the
expenditure of funds" clarifies the
intent of this statutory language as it
appears in section 106 of the NHPA.
This definition addresses the timing of
section 106 compliance. A Federal
agency must take into account the
effects of its actions and provide the
Council a reasonable opportunity to
comment before the Agency decides to
authorize funds, not just before the
release of those funds. The intent of this
provision is to emphasize the
necessitate for compliance with section
106 early in the decision making
process.
The definition of "area of potential
effects" acknowledges that the
determination of the area potential
effects often depends on the nature and
scale of the undertaking and the
associated effects.
The definition of "comment" makes it
clear that the term refers to the formal
comments of the Council members.
The definition of "consultation"
describes the nature and goals of this
critical aspect of the section 106 review
process.
The term "day" was defined to clarify
the running of time periods.
The term "effect" is defined because,
even though the "no effect" step is not
in the rule, the concept of an
undertaking's effect is still a part of the
"historic properties affected"
determination.
"Foreclosure" is a term that has
always been a part of the section 106
process. The term describes the finding
that is made by the Council when an
Agency action precludes the Council
from its reasonable opportunity to
comment on an undertaking.
The term "head of the Agency" is
defined in light of the 1992 amendments
in section 110(1) that require that the
head of an Agency document a decision
where a Memorandum of Agreement has
not been reached for an undertaking.
"Indian tribe" is defined exactly as in
section 301(4) of the NHPA.
"Native Hawaiian organization" is
defined exactly as in section 301(17) of
the NHPA.
"Tribal'Historic Preservation Officer"
is the tribal official who has formally
assumed the SHPO's responsibilities
under section 101(d)(2) of the NHPA.
"Tribal lands" is defined exactly as in
section 301(14) of the NHPA.
"Undertaking" is defined exactly as in
section 301(7) of the statute. The
Agency Official is responsible, in
accordance with § 800.3(a), for making
the determination as to whether a
proposed Federal action is an
undertaking. As appropriate, an agency
should examine the nature of its Federal
involvement taking into consideration
factors such as the degree of Federal
agency control or discretion; the type of
Federal involvement or link to the
action; and whether or not the action
could move forward without Federal
involvement. An agency should seek the
advice of the Council when uncertain
about whether or not its action falls
within the definition of an undertaking.
The 1986 regulatory definition of
undertaking included new and
continuing projects, activities, or
programs and any of their elements not
previously considered under section
106. It is intended that the new
definition includes such aspects of a
project, activity, or program as
undertakings.
Appendix A. Criteria for Council
Involvement in Reviewing Individual
section 106 Cases
This appendix sets forth the criteria
that will guide Council decisions to
enter certain section 106 cases. As
§800.2(b)(l) states, the Council will
document that the criteria have been
met and notify the parties to the section
106 process as required. Council
involvement in section 106 cases is not
automatic once a criterion has been met.
The Council retains discretion as to
whether or not to enter such a case.
Likewise, it is not essential that all
criteria be met. The point of the criteria
is to ensure that the Council has made
a thoughtful decision to enter the
section 106 process and to give
agencies, SHPOs/THPOs and other
section 106 participants a clear
understanding of the kind of cases that
warrant Council involvement.
V. Impact Analysis
The Regulatory Flexibility Act
The Council certifies that the final
rule will not have a significant
economic impact on a substantial
number of small entities. Although
comments on the proposed rule
questioned the validity of such
certification, the rule in its proposed
and final versions imposes mandatory
responsibilities on only Federal
agencies. As set forth in section 106 of
the NHPA, the duties to take into
account the effect, of an undertaking on
historic resources and to afford the
Council a reasonable opportunity to
comment on that undertaking are
Federal agency duties. Indirect effects
on small entities, if any, created in the
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Federal Register/Vol. 65, No. 239/Tuesday, December. 12, 2000/Rules and Regulations 77725
course of a Federal agency's compliance
with section 106 of the NHPA, must be
considered and evaluated by that
Federal agency.
The Paperwork Reduction Act
The final regulations do not impose
reporting or recordkeeping requirements
or the collection of information as
defined in the Paperwork Reduction
Act.
The National Environmental Policy Act
In accordance with 36 CFR part 805,
the Council initiated the NEPA
compliance process for the Council's
regulations implementing section 106 of
the NHPA prior to publication of the
proposed rule in the Federal Register on
September 13, 1996. On July 11, 2000,
through a notice of availability on the
Federal Register (65 FR 42850), the
Council sought public comment on its
Environmental Assessment and
preliminary Finding of No Significant
Impact. The Council has considered
such comments, and has confirmed its
finding of no significant impact on the
human environment. A notice of
availability of the Environmental
Assessment and Finding of No
Significant Impact has been published
in the Federal Register.
Executive Orders 12866 and 12875
The Council is exempt from
compliance with Executive Order 12866
pursuant to implementing guidance
issued by the Office of Management and
Budget's Office of Information and
Regulatory Affairs in a memorandum
dated October 12, 1993. The Council
also is exempt from the documentation
requirements of Executive Order 12875
pursuant to implementing guidance
issued by the same OMB office in a
memorandum dated January 11,1994.
The rule does not mandate State, local,
or tribal governments to participate in
the section 106 process. Instead, State,
local, and tribal governments may
decline to participate. State Historic
Preservation Officers do advise and
assist Federal agencies, as appropriate,
as part of their duties under section
101(b)(3)(E) of the NHPA, as a condition
of then- Federal grant assistance. In
addition, in accordance with Executive
Order 12875, the rule includes several
flexible approaches to consideration of
historic properties in Federal agency
decision making, such as those under
§ 800.14 of the rule. The rule promotes
flexibility and cost effective compliance
by providing for alternate procedures,
categorical exemptions, standard
treatments, program comments, and
programmatic agreements.
The Unfunded Mandates Reform Act of
1995
The final rule implementing section
106 of the NHPA does not impose
annual costs of $100 million or more,
will not significantly or uniquely affect
small governments, and is not a
significant Federal intergovernmental
mandate. The Council thus has no
obligations under sections 202, 203, 204
and 205 of the Unfunded Mandates
Reform Act.
Executive Order 12898
The final rule implementing section
106 of the NHPA does not cause adverse
human health or environmental effects,
but, instead, seeks to avoid adverse
effects on historic properties throughout
the United States. The participation and
consultation process established by this
rule seeks to ensure public
participation—including by minority
and low-income populations and
communities—by those whose cultural
heritage, or whose interest in historic
properties, may be affected by proposed
Federal undertakings. The section 106
process is a means of access for minority
and lowrincome populations to
participate in Federal decisions or
actions that may affect such resources as
historically significant neighborhoods,
buildings, and traditional cultural
properties. The Council considers
environmental justice issues in
reviewing analysis of alternatives and
mitigation options particularly when
section 106 compliance is coordinated
with NEPA compliance. Guidance and
training is being developed to assist
public understanding and use of this
rule.
Memorandum Concerning Government-
to-Government Relations With Native
American Tribal Governments
The Council has fully complied with
this Memorandum. A Native American/
Native Hawaiian representative has
served on the Council. As better
detailed in the preamble to the rule
adopted in 1999, the Council has
consulted at length with Tribes in
developing the substance of what
became the proposed rule in this
rulemaking. The rule enhances the
opportunity for Native American
involvement in the section 106 process
and clarifies the obligation of Federal
agencies to consult with Native
Americans. The rule also enhances the
Government-to-Government intentions
of the memorandum.
Submission to Congress and the
Comptroller General
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. The Council will
submit a report containing this rule and
other required information to the U.S.
Senate, the U.S. House of
Representatives, and the Comptroller
General of the United States prior to
publication of the rule in the Federal
Register. This rule is not a "major rule"
as defined by 5 U.S.C. 804(2). This rule
will be effective January 11, 2001.
List of Subjects in 36 CFR Part 800
Administrative practice and
procedure, Historic preservation,
Indians, Intergovernmental relations.
For the reasons discussed in the
preamble, the Advisory Council on
Historic Preservation amends 36 CFR
chapter VIII by revising part 800 to read
as follows:
PART 800—PROTECTION OF
HISTORIC PROPERTIES
Subpart A—Purposes and Participants
Sec.
800.1 Purposes.
800.2 Participants in the Section 106
process.
Subpart B—The Section 106 Process
800.3 Initiation of the section 106 process.
800.4 Identification of historic properties.
800.5 Assessment of adverse effects.
800.6 Resolution of adverse effects.
800.7 Failure to resolve adverse effects.
800.8 Coordination with the National
Environmental Policy Act.
800.9 Council review of Section 106
compliance.
800.10 Special requirements for protecting
National Historic Landmarks.
800.11 Documentation standards.
800.12 Emergency situations.
800.13 Post-review discoveries.
Subpart C—Program Alternatives
800.14 Federal agency program alternatives.
800.15 Tribal, State, and local program
alternatives. [Reserved]
800.16 Definitions.
Appendix A to Part 800—Criteria for Council
involvement in reviewing individual
section 106 cases
Authority: 16 U.S.C. 470s.
Subpart A—Purposes and Participants
§800.1 Purposes.
(a) Purposes of the section 106
process. Section 106 of the National
Historic Preservation Act requires
Federal agencies to take into account the
effects of their undertakings on historic
properties and afford the Council a
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77726 Federal Register/Vol. 65, No. 239/Tuesday, December 12, 2000/Rules and Regulations
reasonable opportunity to comment on
such undertakings. The procedures in
this part define how Federal agencies
meet these statutory responsibilities.
The section 106 process seeks to
accommodate historic preservation
concerns with the needs of Federal
undertakings through consultation
among the agency official and other
parties with an interest in the effects of
the undertaking on historic properties,
commencing at the early stages of
project planning. The goal of
consultation is to identify historic
properties potentially affected by the
undertaking, assess its effects and seek
ways to avoid, minimize or mitigate any
adverse effects on historic properties.
(b) Relation to other provisions of the
act. Section 106 is related to other
provisions of the act designed to further
the national policy of historic
preservation. References to those
provisions are included in this part to
identify circumstances where they may
affect actions taken to meet section 106
requirements. Such provisions may
have their own implementing
regulations or guidelines and are not
intended to be implemented by the
procedures in this part except insofar as
they relate to the section 106 process.
Guidelines, policies, and procedures
issued by other agencies, including the
Secretary, have been cited in this part
for ease of access and are not
incorporated by reference.
(c) Timing. The agency official must
complete the section 106 process "prior
to the approval of the expenditure of
any Federal funds on the undertaking or
prior to the issuance of any license."
This does not prohibit agency official
from conducting or authorizing
nondestructive project planning
activities before completing compliance
with section 106, provided that such
actions do not restrict the subsequent
consideration of alternatives to avoid,
minimize or mitigate the undertaking's
adverse effects on historic properties.
The agency official shall ensure that the
section 106 process is initiated early in
the undertaking's planning, so that a
broad range of alternatives may be
considered during the planning process
for the undertaking.
§ 800.2 Participants in the Section 106
process.
(a) Agency official. It is the statutory
obligation of the Federal agency to
fulfill the requirements of section 106
and to ensure that an agency official
with jurisdiction over an undertaking
takes legal and financial responsibility
for section 106 compliance in
accordance with subpart B of this part.
The agency official has approval
authority for the undertaking and can
commit the Federal agency to take
appropriate action for a specific
undertaking as a result of section 106
compliance. For the purposes of subpart
C of this part, the agency official has the
authority to commit the Federal agency
to any obligation it may assume in the
implementation of a program
alternative. The agency official may be
a State, local, or tribal government
official who has been delegated legal
responsibility for compliance with
section 106 in accordance with Federal
law.
(1) Professional standards. Section
112(a)(l)(A) of the act requires each
Federal agency responsible for the
protection of historic resources,
including archeological resources, to
ensure that all actions taken by
employees or contractors of the agency
shall meet professional standards under
regulations developed by the Secretary.
(2) Lead Federal agency. If more than
one Federal agency is involved in an
undertaking, some or all the agencies
may designate a lead Federal agency,
which shall identify the appropriate
official to serve as the agency official
who shall act on their behalf, fulfilling
their collective responsibilities under
section 106. Those Federal agencies that
do not designate a lead Federal agency
remain individually responsible for
their compliance with this part.
(3) Use of contractors. Consistent with
applicable conflict of interest laws, the
agency official may use the services of
applicants, consultants, or designees to
prepare information, analyses and
recommendations under this part. The
agency official remains legally
responsible for all required findings and
determinations. If a document or study
is prepared by a non-Federal party, the
agency official is responsible for
ensuring that its content meets
applicable standards and guidelines.
(4) Consultation. The agency official
shall involve the consulting parties
described in paragraph (c) of this
section in findings and determinations
made during the section 106 process.
The agency official should plan
consultations appropriate to the scale of
the undertaking and the scope of
Federal involvement and coordinated
with other requirements of other
statutes, as applicable, such as the
National Environmental Policy Act, the
Native American Graves Protection and
Repatriation Act, the American Indian
Religious Freedom Act, the
Archeological Resources Protection Act,
and agency-specific legislation. The
Council encourages the agency official
to use to the extent possible existing
agency procedures and mechanisms to
fulfill the consultation requirements of
this part.
(b) Council. The Council issues
regulations to implement section 106,
provides guidance and advice on the
application of the procedures in this
part, and generally oversees the
operation of the section 106 process.
The Council also consults with and
comments to agency officials on
individual undertakings and programs
that affect historic properties.
(1) Council entry into the section 106
process. When the Council determines
that its involvement is necessary to
ensure that the purposes of section 106
and the act are met, the Council may
enter the section 106 process. Criteria
guiding Council decisions to enter the
section 106 process are found in
appendix A to this part. The Council
will document that the criteria have
been met and notify the parties to the
section 106 process as required by this
part.
(2) Council assistance. Participants in
the section 106 process may seek
advice, guidance and assistance from
the Council on the application of this
part to specific undertakings, including
the resolution of disagreements,
whether or not the Council is formally
involved in the review of the
undertaking. If questions arise regarding
the conduct of the section 106 process,
participants are encouraged to obtain
the Council's advice on completing the
process.
(c) Consulting parties. The following
parties have consultative roles in the
section 106 process.
(1) State historic preservation officer.
(i) The State historic preservation
officer (SHPO) reflects the interests of
the State and its citizens in the
preservation of their cultural heritage. In
accordance with section 101(b)(3) of the
act, the SHPO advises and assists
Federal agencies in carrying out their
section 106 responsibilities and
cooperates with such agencies, local
governments and organizations and
individuals to ensure that historic
properties are taking into consideration
at all levels of planning and
development.
(ii) If an Indian tribe has assumed the
functions of the SHPO in the section
106 process for undertakings on tribal
lands, the SHPO shall participate as a
consulting party if the undertaking takes
place on tribal lands but affects historic
properties off tribal lands, if requested
in accordance with § 800.3(c)(l), or if
the Indian tribe agrees to include the
SHPO pursuant to § 800.3(f)(3).
(2) Indian tribes and Native Hawaiian
organizations.
(i) Consultation on tribal lands.
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Federal Register/Vol. 65, No. 239/Tuesday, December 12, 2000/Rules and Regulations 77727
(A) Tribal historic preservation
officer. For a tribe that has assumed the
responsibilities of the SHPO for section
106 on tribal lands under section
101(d)(2) of the act, the tribal historic
preservation officer (THPO) appointed
or designated in accordance with the act
is the official representative for the
purposes of section 106. The agency
official shall consult with the THPO in
lieu of the SHPO regarding undertakings
occurring on or affecting historic
properties on tribal lands.
(B) Tribes that have not assumed
SHPO functions. When an Indian tribe
has not assumed the responsibilities of
the SHPO for section 106 on tribal lands
under section 101(d)(2) of the act, the
agency official shall consult with a
representative designated by such
Indian tribe in addition to the SHPO
regarding undertakings occurring on or
affecting historic properties on its tribal
lands. Such Indian tribes have the same
rights of consultation and concurrence
that the THPOs are given throughout
subpart B of this part, except that such
consultations shall be in addition to and
on the same basis as consultation with
: the SHPO.
(ii) Consultation on historic properties
of significance to Indian tribes and
Native Hawaiian organizations. Section
101(d)(6)(B) of the act requires the
agency official to consult with any
Indian tribe or Native Hawaiian
organization that attaches religious and
cultural significance to historic
properties that may be affected by an
undertaking. This requirement applies
regardless of the location of the historic
property. Such Indian tribe or Native
Hawaiian organization shall be a
consulting party.
(A) The agency official shall ensure
that consultation in the section 106
process provides the Indian tribe or
Native Hawaiian organization a
reasonable opportunity to identify its
concerns about historic properties,
advise on the identification and
evaluation of historic properties,
including those of traditional religious
and cultural importance, articulate its
views on the undertaking's effects on
such properties, and participate in the
resolution of adverse effects. It is the
responsibility of the agency official to
make a reasonable and good faith effort
to identify Indian tribes and Native
Hawaiian organizations that shall be
consulted in the section 106 process.
Consultation should commence early in
the planning process, in order to
identify and discuss relevant
preservation issues and resolve
concerns about the confidentiality of
information on historic properties.
(B) The Federal Government has a
unique legal relationship with Indian
tribes set forth in the Constitution of the
United States, treaties, statutes, and
court decisions. Consultation with
Indian tribes should be conducted in a
sensitive manner respectful of tribal
sovereignty. Nothing in this part alters,
amends, repeals, interprets, or modifies
tribal sovereignty, any treaty rights, or
other rights of an Indian tribe, or
preempts, modifies, or limits the
exercise of any such rights.
(C) Consultation with an Indian tribe
must recognize the government-to-
government relationship between the
Federal Government and Indian tribes.
The agency official shall consult with
representatives designated or identified
by the tribal government or the
governing body of a Native Hawaiian
organization. Consultation with Indian
tribes and Native Hawaiian
organizations should be conducted in a
manner sensitive to the concerns and
needs of the Indian tribe or Native
Hawaiian organization.
(D) When Indian tribes and Native
Hawaiian organizations attach religious
and cultural significance to historic
properties off tribal lands, section
101(d)(6)(B) of the act requires Federal
agencies to consult with such Indian
tribes and Native Hawaiian
organizations in the section 106 process.
Federal agencies should be aware that
frequently historic properties of
religious and cultural significance are
located on ancestral, aboriginal, or
ceded lands of Indian tribes and Native
Hawaiian organizations and should
consider that when complying with the
procedures in this part.
(E) An Indian tribe or a Native
Hawaiian organization may enter into
an agreement with an agency official
that specifies how they will carry out
responsibilities under this part,
including concerns over the
confidentiality of information. An
agreement may cover all aspects of tribal
participation in the section 106 process,
provided that no modification may be
made in the roles of other parties to the
section 106 process without their
consent. An agreement may grant the
Indian tribe or Native Hawaiian
organization additional rights to
participate or concur in agency
decisions in the section 106 process
beyond those specified in subpart B of
this part. The agency official shall
provide a copy of any such agreement
to the Council and the appropriate
SHPOs.
(F) An Indian tribe that has not
assumed the responsibilities of the
SHPO for section 106 on tribal lands
under section 101(d)(2) of the act may
notify the agency official in writing that
it is waiving its rights under
§ 800.6(c)(l) to execute a memorandum
of agreement.
(3) Representatives of local
governments. A representative of a local
government with jurisdiction over the
area in which the effects of an
undertaking may occur is entitled to
participate as a consulting party. Under
other provisions of Federal law, the
local government may be authorized to
act as the agency official for purposes of
section 106.
(4) Applicants for Federal assistance,
permits, licenses, and other approvals.
An applicant for Federal assistance or
for a Federal permit, license, or other
approval is entitled to participate as a
consulting party as defined in this part.
The agency official may authorize an
applicant or group of applicants to
initiate consultation with the SHPO/
THPO and others, but remains legally
responsible for all findings and
determinations charged to the agency
official. The agency official shall notify
the SHPO/THPO when an applicant or
group of applicants is so authorized. A
Federal agency may authorize all
applicants in a specific program
pursuant to this section by providing
notice to all SHPO/THPOs. Federal
agencies that provide authorizations to
applicants remain responsible for their
government-to-government
relationships with Indian tribes.
(5) Additional consulting parties.
Certain individuals and organizations
with a demonstrated interest in the
undertaking may participate as
consulting parties due to the nature of
their legal or economic relation to the
undertaking or affected properties, or
their concern with the undertaking's
effects on historic properties.
(d) The public.
(1) Nature of involvement. The views
of the public are essential to informed
Federal decisionmaking in the section
106 process. The agency official shall
seek and consider the views of the
public in a manner that reflects the
nature and complexity of the
undertaking and its effects on historic
properties, the likely interest of the
public in the effects on historic
properties, confidentiality concerns of
private individuals and businesses, and
the relationship of the Federal
involvement to the undertaking.
(2) Providing notice and information.
The agency official must, except where
appropriate to protect confidentiality
concerns of affected parties, provide the
public with information about an
undertaking and its effects on historic
properties and seek public comment
and input. Members of the public may
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77728 Federal Register/Vol. 65, No. 239/Tuesday, December 12, 2000/Rules and Regulations
also provide views on their own
initiative for the agency official to
consider in decisionmaking.
(3) Use of agency procedures. The
agency official may use the agency's
procedures for public involvement
under the National Environmental
Policy Act or other program
requirements in lieu of public
involvement requirements in subpart B
of this part, if they provide adequate
opportunities for public involvement
consistent with this subpart.
Subpart B—The section 106 Process
§ 800.3 Initiation of the section 106
process.
(a) Establish undertaking. The agency
official shall determine whether the
proposed Federal action is an
undertaking as defined in § 800.16(y)
and, if so, whether it is a type of activity
that has the potential to cause effects on
historic properties.
(1) No potential to cause effects. If the
undertaking is a type of activity that
does not have the potential to cause
effects on historic properties, assuming
such historic properties were present,
the agency official has no further
obligations under section 106 or this
part.
(2) Program alternatives. If the review
of the undertaking is governed by a
Federal agency program alternative
established under § 800.14 or a
programmatic agreement in existence
before January 11, 2001, the agency
official shall follow the program
alternative.
(b) Coordinate with other reviews. The
agency official should coordinate the
steps of the section 106 process, as
appropriate, with the overall planning
schedule for the undertaking and with
any reviews required under other
authorities such as the National
Environmental Policy Act, the Native
American Graves Protection and
Repatriation Act, the American Indian
Religious Freedom Act, the
Archeological Resources Protection Act,
and agency-specific legislation, such as
section 4(f) of the Department of
Transportation Act. Where consistent
.with the procedures in this subpart, the
agency official may use information
developed for other reviews under
Federal, State, or tribal law to meet the
requirements of section 106.
(c) Identify the appropriate SHPO
and/or THPO. As part of its initial
planning, the agency official shall
determine the appropriate SHPO or
SHPOs to be involved in the section 106
process. The agency official shall also
determine whether the undertaking may
occur on or affect historic properties on
any tribal lands and, if so, whether a
THPO has assumed the duties of the
SHPO. The agency official shall then
initiate consultation with the
appropriate officer or officers.
(1) Tribal assumption of SHPO
responsibilities. Where an Indian tribe
has assumed the section 106
responsibilities of the SHPO on tribal
lands pursuant to section 101{d)(2) of
the act, consultation for undertakings
occurring on tribal land or for effects on
tribal land is with the THPO for the
Indian tribe in lieu of the SHPO. Section
101(d)(2)(D)(iii) of the act authorizes
owners of properties on tribal lands
which are neither owned by a member
of the tribe nor held in trust by the
Secretary for the benefit of the tribe to
request the SHPO to participate in the
section 106 process in addition to the
THPO.
(2) Undertakings involving more than
one State. If more than one State is
involved in an undertaking, the
involved SHPOs may agree to designate
a lead SHPO to act on their behalf in the
section 106 process, including taking
actions that would conclude the section
106 process under this subpart.
(3) Conducting consultation. The
agency official should consult with the
SHPO/THPO in a manner appropriate to
the agency planning process for the
undertaking and to the nature of the
undertaking and its effects on historic
properties.
(4) Failure of the SHPO/THPO to
respond. If the SHPO/THPO fails to
respond within 30 days of receipt of a
request for review of a finding or
determination, the agency official may
either proceed to the next step in the
process based on the finding or
determination or consult with the
Council in lieu of the SHPO/THPO. If
the SHPO/THPO re-enters the Section
106 process, the agency official shall
continue the consultation without being
required to reconsider previous findings
or determinations.
(d) Consultation on tribal lands.
Where the Indian tribe has not assumed
the responsibilities of the SHPO on
tribal lands, consultation with the
Indian tribe regarding undertakings
occurring on such tribe's lands or effects
on such tribal lands shall be in addition
to and on the same basis as consultation
with the SHPO. If the SHPO has
withdrawn from the process, the agency
official may complete the section 106
process with the Indian tribe and the
Council, as appropriate. An Indian tribe
may enter into an agreement with a
SHPO or SHPOs specifying the SHPO's
participation in the section 106 process
for undertakings occurring on or
affecting historic properties on tribal
lands.
(e) Plan to involve the public. In
consultation with the SHPO/THPO, the
agency official shall plan for involving
the public in the section 106 process.
The agency official shall identify the
appropriate points for seeking public
input and for notifying the public of
proposed actions, consistent with
§800.2(d).
(f) Identify other consulting parties. In
consultation with the SHPO/THPO, the
agency official shall identify any other
parties entitled to be consulting parties
and invite them to participate as such in
the section 106 process. The agency
official may invite others to participate
as consulting parties as the section 106
process moves forward.
(1) Involving local governments and
applicants. The agency official shall
invite any local governments or
applicants that are entitled to be
consulting parties under § 800.2(c).
(2) Involving Indian tribes and Native
Hawaiian organizations. The agency
official shall make a reasonable and
good faith effort to identify any Indian
tribes or Native Hawaiian organizations
that might attach religious and cultural
significance to historic properties in the
area of potential effects and invite them
to be consulting parties. Such Indian
tribe or Native Hawaiian organization
that requests in writing to be a
consulting party shall be one.
(3) Requests to be consulting parties.
The agency official shall consider all
written requests of individuals and
organizations to participate as
consulting parties and, in consultation
with the SHPO/THPO and any Indian
tribe upon whose tribal lands an
undertaking occurs or affects historic
properties, determine which should be
consulting parties.
(g) Expediting consultation. A
consultation by the agency official with
the SHPO/THPO and other consulting
parties may address multiple steps in
§§ 800.3 through 800.6 where the
agency official and the SHPO/THPO
agree it is appropriate as long as the
consulting parties and the public have
an adequate opportunity to express their
views as provided in § 800.2(d).
§ 800.4 Identification of historic properties.
(a) Determine scope of identification
efforts. In consultation with the SHPO/
THPO, the agency official shall:
(1) Determine and document the area
of potential effects, as defined in
§800.16(d);
(2) Review existing information on
historic properties within the area of
potential effects, including any data
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Federal Register/Vol. 65, No. 239/Tuesday, December 12, 2000/Rules and Regulations 77729
concerning possible historic properties
not yet identified;
(3) Seek information, as appropriate,
from consulting parties, and other
individuals and organizations likely to
have knowledge of, or concerns with,
historic properties in the area, and
identify issues relating to the
undertaking's potential effects on
historic properties; and
(4) Gather information from any
Indian tribe or Native Hawaiian
organization identified pursuant to
§ 800.3(f) to assist in identifying
properties, including those located off
tribal lands, which may be of religious
and cultural significance to them and
may be eligible for the National Register,
recognizing that an Indian tribe or
Native Hawaiian organization may be
reluctant to divulge specific information
regarding the location, nature, and
activities associated with such sites. The
agency official should address concerns
raised about confidentiality pursuant to
§800.11(c).
(b) Identify historic properties. Based
on the information gathered under
paragraph (a) of this section, and in
consultation with the SHPO/THPO and
any Indian tribe or Native Hawaiian
organization that might attach religious
and cultural significance to properties
within the area of potential effects, the
agency official shall take the steps
necessary to identify historic properties
within the area of potential effects.
(1) Level of effort. The agency official
shall make a reasonable and good faith
effort to carry out appropriate
identification efforts, which may
include background research,
consultation, oral history interviews,
sample field investigation, and field
survey. The agency official shall take
into account past planning, research and
studies, the magnitude and nature of the
undertaking and the degree of Federal
involvement, the nature and extent of
potential effects on historic properties,
and the likely nature and location of
historic properties within the area of
potential effects. The Secretary's
standards and guidelines for
identification provide guidance on this
subject. The agency official should also
consider other applicable professional,
State, tribal, and local laws, standards,
and guidelines. The agency official shall
take into account any confidentiality
concerns raised by Indian tribes or
Native Hawaiian organizations during
the identification process.
(2) Phased identification and
evaluation. Where alternatives under
consideration consist of corridors or
large land areas, or where access to
properties is restricted, the agency
official may use a phased process to
conduct identification and evaluation
efforts. The agency official may also
defer final identification and evaluation
of historic properties if it is specifically
provided for in a memorandum of
agreement executed pursuant to § 800.6,
a programmatic agreement executed
pursuant to § 800.14(b), or the
documents used by an agency official to
comply with the National
Environmental Policy Act pursuant to
§800.8. The process should establish
the likely presence of historic properties
within the area of potential effects for
each alternative or inaccessible area
through background research,
consultation and an appropriate level of
field investigation, taking into account
the number of alternatives under
consideration, the magnitude of the
undertaking and its likely effects, and
the views of the SHPO/THPO and any
other consulting parties. As specific
aspects or locations of an alternative are
refined or access is gained, the agency
official shall proceed with the
identification and evaluation of historic
properties in accordance with
paragraphs (b)(l) and (c) of this section.
(c) Evaluate historic significance.
(1) Apply National Register criteria. In
consultation with the SHPO/THPO and
any Indian tribe or Native Hawaiian
organization that attaches religious and
cultural significance to identified
properties and guided by the Secretary's
standards and guidelines for evaluation,
the agency official shall apply the
National Register criteria (36 CFR part
63) to properties identified within the
area of potential effects that have not
been previously evaluated for National
Register eligibility. The passage of time,
changing perceptions of significance, or
incomplete prior evaluations may
require the agency official to reevaluate
properties previously determined
eligible or ineligible. The agency official
shall acknowledge that Indian tribes and
Native Hawaiian organizations possess
special expertise in assessing the
eligibility of historic properties that may
possess religious and cultural
significance to them.
(2) Determine whether a property is
eligible. If the agency official determines
any of the National Register criteria are
met and the SHPO/THPO agrees, the
property shall be considered eligible for
the National Register for section 106
purposes. If the agency official
determines the criteria are not met and
the SHPO/THPO agrees, the property
shall be considered not eligible. If the
agency official and the SHPO/THPO do
not agree, or if the Council or the
Secretary so request, the agency official
shall obtain a determination of
eligibility from the Secretary pursuant
to 36 CFR part 63. If an Indian tribe or
Native Hawaiian organization that
attaches religious and cultural
significance to a property off tribal lands
does not agree, it may ask the Council
to request the agency official to obtain
a determination of eligibility.
(d) Results of identification and
evaluation.
(1) No historic properties affected. If
the agency official finds that either there
are no historic properties present or
there are historic properties present but
the undertaking will have no effect
upon them as defined in § 800.16(i), the
agency official shall provide
documentation of this finding, as set
forth in § 800.11(d), to the SHPO/THPO.
The agency official shall notify all
consulting parties, including Indian
tribes and Native Hawaiian
organizations, and make the
documentation available for public
inspection prior to approving the
undertaking. If the SHPO/THPO, or the
Council if it has entered the section 106
process, does not object within 30 days
of receipt of an adequately documented
finding, the agency official's
responsibilities under section 106 are
fulfilled.
(2) Historic properties affected. If the
agency official finds that there are
historic properties which may be
affected by the undertaking or the
SHPO/THPO or the Council objects to
the agency official's finding under
paragraph (d)(l) of this section, the
agency official shall notify all
consulting parties, including Indian
tribes or Native Hawaiian organizations,
invite their views on the effects and
assess adverse effects, if any, in
accordance with § 800.5.
§ 800.5 Assessment of adverse effects.
(a) Apply criteria of adverse effect. In
consultation with the SHPO/THPO and
any Indian tribe or Native Hawaiian
organization that attaches religious and
cultural significance to identified
historic properties, the agency official
shall apply the criteria of adverse effect
to historic properties within the area of
potential effects. The agency official
shall consider any views concerning
such effects which have been provided
by consulting parties and the public.
(1) Criteria of adverse effect. An
adverse effect is found when an
undertaking may alter, directly or
indirectly, any of the characteristics of
a historic property that qualify the
property for inclusion in the National
Register in a manner that would
diminish the integrity of the property's
location, design, setting, materials,
workmanship, feeling, or association.
Consideration shall be given to all
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77730 Federal Register/Vol. 65, No. 239/Tuesday, December 12, 2000/Rules and Regulations
qualifying characteristics of a historic
property, including those that may have
been identified subsequent to the
original evaluation of the property's
eligibility for the National Register.
Adverse effects may include reasonably
foreseeable effects caused by the
undertaking that may occur later in
time, be farther removed in distance or
be cumulative.
(2) Examples of adverse effects.
Adverse effects on historic properties
include, but are not limited to:
(i) Physical destruction of or damage
to all or part of the property;
(ii) Alteration of a property, including
restoration, rehabilitation, repair,
maintenance, stabilization, hazardous
material remediation, and provision of
handicapped access, that is not
consistent with the Secretary's
standards for the treatment of historic
properties (36 CFR part 68} and
applicable guidelines;
(iii) Removal of the property from its
historic location;
(iv) Change of the character of the
property's use or of physical features
within the property's setting that
contribute to its historic significance;
(v) Introduction of visual,
atmospheric or audible elements that
diminish the integrity of the property's
significant historic features;
(vi) Neglect of a property which
causes its deterioration, except where
such neglect and deterioration are
recognized qualities of a property of
religious and cultural significance to an
Indian tribe or Native Hawaiian
organization; and
(vii) Transfer, lease, or sale of
property out of Federal ownership or
control without adequate and legally
enforceable restrictions or conditions to
ensure long-term preservation of the
property's historic significance.
(3) Phased application of criteria.
Where alternatives under consideration
consist of corridors or large land areas,
or where access to properties is
restricted, the agency official may use a
phased process in applying the criteria
of adverse effect consistent with phased
identification and evaluation efforts
conducted pursuant to § 800.4(b)(2).
(b) Finding of no adverse effect. The
agency official, in consultation with the
SHPO/THPO, may propose a finding of
no adverse effect when the
undertaking's effects do not meet the
criteria of paragraph (a)(l) of this
section or the undertaking is modified
or conditions are imposed, such as the
subsequent review of plans for
rehabilitation by the SHPO/THPO to
ensure consistency with the Secretary's
standards for the treatment of historic
properties (36 CFR part 68) and
applicable guidelines, to avoid adverse
effects.
(c) Consulting party review. If the
agency official proposes a finding of no
adverse effect, the agency official shall
notify all consulting parties of the
finding and provide them with the
documentation specified in § 800.11(e).
The SHPO/THPO shall have 30 days
from receipt to review the finding.
(1) Agreement with finding. Unless
the Council is reviewing the finding
pursuant to §800.5(c)(3), the agency
official may proceed if the SHPO/THPO
agrees with the finding. The agency
official shall carry out the undertaking
in accordance with § 800.5(d)(l). Failure
of the SHPO/THPO to respond within
30 days from receipt of the finding shall
be considered agreement of the SHPO/
THPO with the finding.
(2) Disagreement with finding.
(i) If the SHPO/THPO or any
consulting party disagrees within the
30-day review period, it shall specify
the reasons for disagreeing with the
finding. The agency official shall either
consult with the party to resolve the
disagreement, or request the Council to
review the finding pursuant to
paragraph (c)(3) of this section.
(ii) The agency official should seek
the concurrence of any Indian tribe or
Native Hawaiian organization that has
made known to the agency official that
it attaches religious and cultural
significance to a historic property
subject to the finding. If such Indian
tribe or Native Hawaiian organization
disagrees with the finding, it may
within the 30-day review period specify
the reasons for disagreeing with the
finding and request the Council to
review the finding pursuant to
paragraph (c)(3) of this section.
(iii) If the Council on its own
initiative so requests within the 30-day
review period, the agency official shall
submit the finding, along with the
documentation specified in § 800.life),
for review pursuant to paragraph (c)(3)
of this section. A Council decision to
make such a request shall be guided by
the criteria in appendix A to this part.
(3) Council review of findings. When
a finding is submitted to the Council
pursuant to paragraph (c)(2) of this
section, the agency official shall include
the documentation specified in
§800.11(e). The Council shall review
the finding and notify the agency
official of its determination as to
whether the adverse effect criteria have
been correctly applied within 15 days of
receiving the documented finding from
the agency official. The Council shall
specify the basis for its determination.
The agency official shall proceed in
accordance with the Council's
determination. If the Council does not
respond'within 15 days of receipt of the
finding, the agency official may assume
concurrence with the agency official's
findings and proceed accordingly.
(d) Results of assessment.
(1) No adverse effect. The agency
official shall maintain a record of the
finding and provide information on the
finding to the public on request,
consistent with the confidentiality
provisions of §800.11 (c).
Implementation of the undertaking in
accordance with the finding as
documented fulfills the agency official's
responsibilities under section 106 and
this part. If the agency official will not
conduct the undertaking as proposed in
the finding, the agency official shall
reopen consultation under paragraph (a)
of this section.
(2) Adverse effect. If an adverse effect
is found, the agency official shall
consult further to resolve the adverse
effect pursuant to § 800.6.
§ 800.6 Resolution of adverse effects.
(a) Continue consultation. The agency
official shall consult with the SHPO/
THPO and other consulting parties,
including Indian tribes and Native
Hawaiian organizations, to develop and
evaluate alternatives or modifications to
the undertaking that could avoid,
minimize, or mitigate adverse effects on
historic properties.
(1) Notify the Council and determine
Council participation. The agency
official shall notify the Council of the
adverse effect finding by providing the
documentation specified in § 800.11(e).
(i) The notice shall invite the Council
to participate in the consultation when:
(A) The agency official wants the
Council to participate;
(B) The undertaking has an adverse
effect upon a National Historic
Landmark; or
(C) A programmatic agreement under
§ 800.14(b) will be prepared;
(ii) The SHPO/THPO, an Indian tribe
or Native Hawaiian organization, or any
other consulting party may at any time
independently request the Council to
participate in the consultation.
(iii) The Council shall advise the
agency official and all consulting parties
whether it will participate within 15
days of receipt of notice or other
request. Prior to entering the process,
the Council shall provide written notice
to the agency official.and the consulting
parties that its decision to participate
meets the criteria set forth in appendix
A to this part. The Council shall also
advise the head of the agency of its
decision to enter the process.
Consultation with Council participation
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Federal Register/Vol. 65, No. 239/Tuesday, December 12, 2000/Rules and Regulations 77731
is conducted in accordance with
paragraph (b)(2) of this section.
(iv) If the Council does not join the
consultation, the agency official shall
proceed with consultation in
accordance with paragraph (b)(l) of this
section.
(2) Involve consulting parties. In
addition to the consulting parties
identified under § 800.3(f), the agency
official, the SHPO/THPO and the
Council, 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.
(3) Provide documentation. The
agency official shall provide to all
consulting parties the documentation
specified in § 800.11(e), subject to the
confidentiality provisions of § 800.11(c),
and such other documentation as may
be developed during the consultation to
resolve adverse effects.
(4) Involve the public. The agency
official shall make information available
to the public, including the
documentation specified in §800.11(e),
subject to the confidentiality provisions
of § 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. 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. 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 § 800.2(d) are met.
(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
§ 800.11(c) regarding the disclosure of
such information.
(b) Resolve adverse effects.
(1) Resolution without the Council.
(i) The agency official shall consult
with the SHPO/THPO and other
consulting parties to seek ways to avoid,
minimize or mitigate the adverse effects.
(ii) The agency official may use
standard treatments established by the
Council under § 800.14(d) as a basis for
a memorandum of agreement.
(iii) If the Council decides to join the
consultation, the agency official shall
follow paragraph (b)(2) of this section.
(iv) If the agency official and the
SHPO/THPO 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 §800.11(f),
to the Council prior to approving the
undertaking in order to meet the
requirements of section 106 and this
subpart.
(v) If the agency official, and the
SHPO/THPO fail to agree on the terms
of a memorandum of agreement, the
agency official shall request the Council
to join the consultation and provide the
Council with the documentation set
forth in §800.11(g). If the Council
decides to join the consultation, the
agency official shall proceed in
accordance with paragraph (b)(2) of this
section. If the Council decides not to
join the consultation, the Council will
notify the agency and proceed to
comment in accordance with § 800.7{c).
(2) Resolution with Council
participation. If the Council decides to
participate in the consultation, the
agency official shall consult with the
SHPO/THPO, the Council, and other
consulting parties, including Indian
tribes and Native Hawaiian
organizations under §800.2(c)(3), to
seek ways to avoid, minimize or
mitigate the adverse effects. If the
agency official, the SHPO/THPO, and
the Council agree on how the adverse
effects will be resolved, they shall
execute a 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)(l) 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 §800.7(a)(2).
(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.
(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.
(4) Reports on implementation. Where
the signatories agree it is appropriate, a
memorandum of agreement shall
include a provision for monitoring and
reporting on its implementation.
(5) Duration. A memorandum of
agreement shall include provisions for
termination and for reconsideration of
terms if the undertaking has not been
implemented within a specified time.
(6) Discoveries. Where the signatories
agree it is appropriate, a memorandum
of agreement shall include provisions to
deal with the subsequent discovery or
identification of additional historic
properties affected by the undertaking.
(7) Amendments. The signatories to a
memorandum of agreement may amend
it. If the Council was not a signatory to
the original agreement and the
signatories execute an amended
agreement, the agency official shall file
it with the Council.
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77732 Federal Register/Vol. 65, No. 239/Tuesday, December 12, 2000/Rules and Regulations
(8) Termination. If any signatory
determines that the terms of a
memorandum of agreement cannot be or
are not being carried out, the signatories
shall consult to seek amendment of the
agreement. If the agreement is not
amended, any signatory may terminate
it. The agency official shall either
execute a memorandum of agreement
with signatories under paragraph (c)(l)
of this section or request the comments
of the Council under § 800.7(a).
(9) Copies. The agency official shall
provide each consulting party with a
copy of any memorandum of agreement
executed pursuant to this subpart.
§ 800.7 Failure to resolve adverse effects.
(a) Termination of consultation. After
consulting to resolve adverse effects
pursuant to § 800.6(b)(2), the agency
official, the SHPO/THPO, or the Council
may determine that further consultation
will not be productive and terminate
consultation. Any party that terminates
consultation shall notify the other
consulting parties and provide them the
reasons for terminating in writing.
(1) If the agency official terminates
consultation, the head of the agency or
an Assistant Secretary or other officer
with major department-wide or agency-
wide responsibilities shall request that
the Council comment pursuant to
paragraph (c) of this section and shall
notify all consulting parties of the
request.
(2) If the SHPO terminates
consultation, the agency official and the
Council may execute a memorandum of
agreement without the SHPO's
involvement.
(3) If a THPO terminates consultation
regarding an undertaking occurring on
or affecting historic properties on its
tribal lands, the Council shall comment
pursuant to paragraph (c) of this section.
(4) If the Council terminates
consultation, the Council shall notify
the agency official, the agency's Federal
preservation officer and all consulting
parties of the termination and comment
under paragraph (c) of this section. The
Council may consult with the agency's
Federal preservation officer prior to
terminating consultation to seek to
resolve issues concerning the
undertaking and its effects on historic
properties.
(b) Comments without termination.
The Council may determine that it is
appropriate to provide additional
advisory comments upon an
undertaking for which a memorandum
of agreement will be executed. The
Council shall provide them to the
agency official when it executes the
memorandum of agreement.
(c) Comments by the Council.
(1) Preparation. The Council shall
provide an opportunity for the agency
official, all consulting parties, and the
public to provide their views within the
time frame for developing its comments.
Upon request of the Council, the agency
official shall provide additional existing
information concerning the undertaking
and assist the Council in arranging an
onsite inspection and an opportunity for
public participation.
(2) Timing. The Council shall transmit
its comments within 45 days of receipt
of a request under paragraph (a)(l) or
(a)(3) of this section or § 800.8(c)(3), or
termination by the Council under
§ 800.6(b)(l)(v) or paragraph (a)(4) of
this section, unless otherwise agreed to
by the agency official.
(3) Transmittal. The Council shall
provide its comments to the head of the
agency requesting comment with copies
to the agency official, the agency's
Federal preservation officer, all
consulting parties, and others as
appropriate.
(4) Response to Council comment.
The head of the agency shall take into
account the Council's comments in
reaching a final decision on the
undertaking. Section 110(1) of the act
directs that the head of the agency shall
document this decision and may not
delegate his or her responsibilities
pursuant to section 106. Documenting
the agency head's decision shall
include:
(i) Preparing a summary of the
decision that contains the rationale for
the decision and evidence of
consideration of the Council's
comments and providing it to the
Council prior to approval of the
undertaking;
(ii) Providing a copy of the summary
to all consulting parties; and
(iii) Notifying the public and making
the record available for public
inspection.
§ 800.8 Coordination With the National
Environmental Policy Act.
(a) General principles.
(1) Early coordination. Federal
agencies are encouraged to coordinate
compliance with section 106 and the
procedures in this part with any steps
taken to meet the requirements of. the
National Environmental Policy Act
(NEPA). Agencies should consider their
section 106 responsibilities as early as
possible in the NEPA process, and plan
their public participation, analysis, and
review in such a way that they can meet
the purposes and requirements of both
statutes in a timely and efficient
manner. The determination of whether
an undertaking is a "major Federal
action significantly affecting the quality
of the human environment," and
therefore requires preparation of an
environmental impact statement (EIS)
under NEPA, should include
consideration of the undertaking's likely
effects on historic properties. A finding
of adverse effect on a historic property
does not necessarily require an EIS
under NEPA.
(2) Consulting party roles. SHPO/
THPOs, Indian tribes, and Native
Hawaiian organizations, other
consulting parties, and organizations
and individuals who may be concerned
with the possible effects of an agency
action on historic properties should be
prepared to consult with agencies early
in the NEPA process, when the purpose
of and need for the proposed action as
well as the widest possible range of
alternatives are under consideration.
(3) Inclusion of historic preservation
issues. Agency officials should ensure
that preparation of an environmental
assessment (EA) and finding of no
significant impact (FONSI) or an EIS
and record of decision (ROD) includes
appropriate scoping, identification of
historic properties, assessment of effects
upon them, and consultation leading to
resolution of any adverse effects.
(b) Actions categorically excluded
under NEPA. If a project, activity or
program is categorically excluded from
NEPA review under an agency's NEPA
procedures, the agency official shall
determine if it still qualifies as an
undertaking requiring review under
section 106 pursuant to § 800.3(a). If so,
the agency official shall proceed with
section 106 review in accordance with
the procedures in this subpart.
(c) Use of the NEPA process for
section 106 purposes. An agency official
may use the process and documentation
required for the preparation of an EA/
FONSI or an EIS/ROD to comply with
section 106 in lieu of the procedures set
forth in §§800.3 through 800.6 if the
agency official has notified in advance
the SHPO/THPO and the Council that it
intends to do so and the following
standards are met.
(1) Standards for developing
environmental documents to comply
with Section 106. During preparation of
the EA or draft EIS (DEIS) the agency
official shall:
(i) Identify consulting parties either
pursuant to § 800.3(f) or through the
NEPA scoping process with results
consistent with § 800.3(f);
(ii) Identify historic properties and
assess the effects of the undertaking on
such properties in a manner consistent
with the standards and criteria of
§§ 800.4 through 800.5, provided that
the scope and timing of these steps may
be phased to reflect the agency official's
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Federal Register/Vol. 65, No. 239/Tuesday, December 12, 2000/Rules and Regulations 77733
consideration of project alternatives in
the NEPA process and the effort is
commensurate with the assessment of
other environmental factors;
(iii) Consult regarding the effects of
the undertaking on historic properties
with the SHPO/THPO, Indian tribes,
and Native Hawaiian organizations that
might attach religious and cultural
significance to affected historic
properties, other consulting parties, and
the Council, where appropriate, during
NEPA scoping, environmental analysis,
and the preparation of NEPA
documents;'
(iv) Involve the public in accordance
with the agency's published NEPA
procedures; and (v) Develop in
consultation with identified consulting
parties alternatives and proposed
measures that might avoid, minimize or
mitigate any adverse effects of the
undertaking on historic properties and
describe them in the EA or DEIS.
(2) Review of environmental
documents.
(i) The agency official shall submit the
EA, DEIS, or EIS to the SHPO/THPO,
Indian tribes, and Native Hawaiian
organizations that might attach religious
and cultural significance to affected
historic properties, and other consulting
parties prior to or when making the
document available for public comment.
If the document being prepared is a
DEIS or EIS, the agency official shall
also submit it to the Council.
(ii) Prior to or within the time allowed
for public comment on the document, a
SHPO/THPO, an Indian tribe or Native
Hawaiian organization, another
consulting party or the Council may
object to the agency official that
preparation of the EA, DEIS, or EIS has
not met the standards set forth in
paragraph (c)(l) of this section or that
the substantive resolution of the effects
on historic properties proposed in an
EA, DEIS, or EIS is inadequate. If the
agency official receives such an
objection, the agency official shall refer
the matter to the Council.
(3) Resolution of objections. Within 30
days of the agency official's referral of
an objection under paragraph (c)(2)(ii) of
this section, the Council shall notify the
agency official either that it agrees with
the objection, in which case the agency
official shall enter into consultation in
accordance with § 800.6(b)(2) or seek
Council comments in accordance with
§ 800.7(a), or that it disagrees with the
objection, in which case the agency
official shall continue its compliance
with this section. Failure of the Council
to respond within the 30 day period
shall be considered disagreement with
the objection.
(4) Approval of the undertaking. If the
agency official has found, during the
preparation of an EA or EIS that the
effects of an undertaking on historic
properties are adverse, the agency
official shall develop measures in the
EA, DEIS, or EIS to avoid, minimize, or
mitigate such effects in accordance with
paragraph (c)(l)(v) of this section. The
agency official's responsibilities under
section 106 and the procedures in this
subpart shall then be satisfied when
either:
(i) A binding commitment to such
proposed measures is" incorporated in:
(A) The ROD, if such measures were
proposed in a DEIS or EIS; or
(B) An MOA drafted in compliance
with § 800.6(c); or
(ii) The Council has commented
under § 800.7 and received the agency's
response to such comments.
(5) Modification of the undertaking. If
the undertaking is modified after
approval of the FONSI or the ROD in a
manner that changes the undertaking or
alters its effects on historic properties,
or if the agency official fails to ensure
that the measures to avoid, minimize or
mitigate adverse effects (as specified in
either the FONSI or the ROD, or in the
binding commitment adopted pursuant
to paragraph (c)(4) of this section) are
carried out, the agency official shall
notify the Council and all consulting
parties that supplemental
environmental documents will be
prepared in compliance with NEPA or
that the procedures in §§ 800.3 through
800.6 will be followed as necessary.
§ 800.9 Council review of section 106
compliance.
(a) Assessment of agency official
compliance for individual undertakings.
The Council may provide to the agency
official its advisory opinion regarding
the substance of any finding,
determination or decision or regarding
the adequacy of the agency official's
compliance with the procedures under
this part. The Council may provide such
advice at any. time at the request of any
individual, agency or organization or on
its own initiative. The agency official
shall consider the views of the Council
in reaching a decision on the matter in
question.
(b) Agency foreclosure of the
Council's opportunity to comment.
Where an agency official has failed to
complete the requirements of section
106 in accordance with the procedures
in this part prior to the approval of an
undertaking, the Council's opportunity
to comment may be foreclosed. The
Council may review a case to determine
whether a foreclosure has occurred. The
Council shall notify the agency official
and the agency's Federal preservation
officer and allow 30 days for the agency
official to provide information as to
whether foreclosure has occurred. If the
Council determines foreclosure has
occurred, the Council shall transmit the
determination to the agency official and
the head of the agency. The Council
shall also make the determination
available to the public and any parties
known to be interested in the
undertaking and its effects upon historic
properties.
(c) Intentional adverse effects by
applicants.
(1) Agency responsibility. Section
110(k) of the act prohibits a Federal
agency from granting a loan, loan
guarantee, permit, license or other
assistance to an applicant who, with
intent to avoid the requirements of
section 106, has intentionally
significantly adversely affected a
historic property to which the grant
would relate, or having legal power to
prevent it, has allowed such significant
adverse effect to occur, unless the
agency, after consultation with the
Council, determines that circumstances
justify granting such assistance despite
the adverse effect created or permitted
by the applicant. Guidance issued by
the Secretary pursuant to section 110 of
the act governs its implementation.
(2) Consultation with the Council.
When an agency official determines,
based on the actions of an applicant,
that section 110(k) is applicable and that
circumstances may justify granting the
assistance, the agency official shall
notify the Council and provide
documentation specifying the
circumstances under which the adverse
effects to the historic property occurred
and the degree of damage to the
integrity of the property. This
documentation shall include any views
obtained from the applicant, SHPO/
THPO, an Indian tribe if the undertaking
occurs on or affects historic properties
on tribal lands, and other parties known
to be interested in the undertaking.
(i) Within thirty days of receiving the
agency official's notification, unless
otherwise agreed to by the agency
official, the Council shall provide the
agency official with its opinion as to
whether circumstances justify granting
assistance to the applicant and any
possible mitigation of the adverse
effects.
(ii) The agency official shall consider
the Council's opinion in making a
decision on whether to grant assistance
to the applicant, and shall notify the
Council, the SHPO/THPO, and other
parties known to be interested in the
undertaking prior to granting the
assistance.
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77734 Federal Register/Vol. 65, No. 239/Tuesday, December 12, 2000/Rules and Regulations
(3) Compliance with Section 106. If an
agency official, after consulting with the
Council, determines to grant the
assistance, the agency official shall
comply with §§ 800.3 through 800.6 to
take into account the effects of the
undertaking on any historic properties.
(d) Evaluation of Section 106
operations. The Council may evaluate
the operation of the section 106 process
by periodic reviews of how participants
have fulfilled their legal responsibilities
and how effectively the outcomes
reached advance the purposes of the act.
(1) Information from participants.
Section 203 of the act authorizes the
Council to obtain information from
Federal agencies necessary to conduct
evaluation of the section 106 process.
The agency official shall make
documentation of agency policies,
operating procedures and actions taken
to comply with section 106 available to
the Council upon request. The Council
may request available information and
documentation from other participants
in the section 106 process.
(2) Improving the operation of section
106. Based upon any evaluation of the
section 106 process, the Council may
make recommendations to participants,
the heads of Federal agencies, and the
Secretary of actions to improve the
efficiency and effectiveness of the
process. Where the Council determines
that an agency official or a SHPO/THPO
has failed to properly carry out the
responsibilities assigned under the
process in this part, the Council may
participate in individual case reviews
conducted under such process in
addition to the SHPO/THPO for such
period that it determines is necessary to
improve performance or correct
deficiencies. If the Council finds a
pattern of failure by a Federal agency in
carrying out its responsibilities under
section 106, the Council may review the
policies and programs of the agency
related to historic preservation pursuant
to section 202(a)(6) of the act and
recommend methods to improve the
effectiveness, coordination, and
consistency of those policies and
programs with section 106.
§800.10 Special requirements for
protecting National Historic Landmarks.
(a) Statutory requirement. Section
110(f) of the act requires that the agency
official, to the maximum extent
possible, undertake such planning and
actions as may be necessary to minimize
harm to any National Historic Landmark
that may be directly and adversely
affected by an undertaking. When
commenting on such undertakings, the
Council shall use the process set forth
in §§ 800.6 through 800.7 and give
special consideration to protecting
National Historic Landmarks as
specified in this section.
(b) Resolution of adverse effects. The
agency official shall request the Council
to participate in any consultation to
resolve adverse effects on National
Historic Landmarks conducted under
§800.6.
(c) Involvement of the Secretary. The
agency official shall notify the Secretary
of any consultation involving a National
Historic Landmark and invite the
Secretary to participate in the
consultation where there may be an
adverse effect. The Council may request
a report from the Secretary under
section 213 of the act to assist in the
consultation.
(d) Report of outcome. When the
Council participates in consultation
under this section, it shall report the
outcome of the section 106 process,
providing its written comments or any
memoranda of agreement to which it is
a signatory, to the Secretary and the
head of the agency responsible for the
undertaking.
§800.11 Documentation standards.
(a) Adequacy of documentation. The
agency official shall ensure that a
determination, finding, or agreement
under the procedures in this subpart is
supported by sufficient documentation
to enable any reviewing parties to
understand its basis. The agency official
shall provide such documentation to the
extent permitted by law and within
available funds. When an agency official
is conducting phased identification or
evaluation under this subpart, the
documentation standards regarding
description of historic properties may be
applied flexibly. If the Council, or the
SHPO/THPO when the Council is not
involved, determines the applicable
documentation standards are not met,
the Council or the SHPO/THPO, as
appropriate, shall notify the agency
official and specify the information
needed to meet the standard. At the
request of the agency official or any of
the consulting parties, the Council shall
review any disputes over whether
documentation standards are met and
provide its views to the agency official
and the consulting parties.
(b) Format. The agency official may
use documentation prepared to comply
with other laws to fulfill the
requirements of the procedures in this
subpart, if that documentation meets the
standards of this section.
(c) Confidentiality.
(1) Authority to withhold information.
Section 304 of the act provides that the
head of a Federal agency or other public
official receiving grant assistance
pursuant to the act, after consultation
with the Secretary, shall withhold from
public disclosure information about the
location, character, or ownership of a
historic property when disclosure may
cause a significant invasion of privacy;
risk harm to the historic property; or
impede the use of a traditional religious
site by practitioners. When the head of
a Federal agency or other public official
has determined that information should
be withheld from the public pursuant to
these criteria, the Secretary, in
consultation with such Federal agency
head or official, shall determine who
may have access to the information for
the purposes of carrying out the act.
(2) Consultation with the Council.
When the information in question has
been developed in the course of an
agency's compliance with this part, the
Secretary shall consult with the Council
in reaching determinations on the
withholding and release of information.
The Federal agency shall provide the
Council with available information,
including views of the SHPO/THPO,
Indian tribes and Native Hawaiian
organizations, related to the
confidentiality concern. The Council
shall advise the Secretary and the
Federal agency within 30 days of receipt
of adequate documentation.
(3) Other authorities affecting
confidentiality. Other Federal laws and
program requirements may limit public
access to information concerning an
undertaking and its effects on historic
properties. Where applicable, those
authorities shall govern public access to
information developed in the section
106 process and may authorize the
agency official to protect the privacy of
non-governmental applicants.
(d) Finding of no historic properties
affected. Documentation shall include:
(1) A description of the undertaking,
specifying the Federal involvement, and
its area of potential effects, including
photographs, maps, drawings, as
necessary;
(2) A description of the steps taken to
identify historic properties, including,
as appropriate, efforts to seek
information pursuant to §800.4(b); and
(3) The basis for determining that no
historic properties are present or
affected.
(e) Finding of no adverse effect or
adverse effect. Documentation shall
include:
(1) A description of the undertaking,
specifying the Federal involvement, and
its area of potential effects, including
photographs, maps, and drawings, as
necessary;
(2) A description of the steps taken to
identify historic properties;
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Federal Register/Vol. 65, No. 239/Tuesday, December 12, 2000/Rules and Regulations 77735
(3) A description of the affected
historic properties, including
information on the characteristics that
qualify them for the National Register;
(4) A description of the undertaking's
effects on historic properties;
(5) An explanation of why the criteria
of adverse effect were found applicable
or inapplicable, including any
conditions or future actions to avoid,
minimize or mitigate adverse effects;
and
(6) Copies or summaries of any views
provided by consulting parties and the
public.
(f) Memorandum of agreement. When
a memorandum of agreement is filed
with the Council, the documentation
shall include, any substantive revisions
or additions to the documentation
provided the Council pursuant to
§ 800.6(a)(l), an evaluation of any
measures considered to avoid or
minimize the undertaking's adverse
effects and a summary of the views of
consulting parties and the public.
(g) Requests for comment without a
memorandum of agreement.
Documentation shall include:
(1) A description and evaluation of
any alternatives or mitigation measures
that the agency official proposes to
resolve the undertaking's adverse
effects;
(2) A description of any reasonable
alternatives or mitigation measures that
were considered but not chosen, and the
reasons for their rejection;
(3) Copies or summaries of any views
submitted to the agency official
concerning the adverse effects of the
undertaking on historic properties and
alternatives to reduce or avoid those
effects; and
(4) Any substantive revisions or
additions to the documentation
provided the Council pursuant to
§ 800.6(a)(l).
§800.12 Emergency situations.
(a) Agency procedures. The agency
official, in consultation with the
appropriate SHPOs/THPOs, affected
Indian tribes and Native Hawaiian
organizations, and the Council, is
encouraged to develop procedures for
taking historic properties into account
during operations which respond to a
disaster or emergency declared by the
President, a tribal government, or the
Governor of a State or which respond to
other immediate threats to life or
property. If approved by the Council,
the procedures shall govern the agency's
historic preservation responsibilities
during any disaster or emergency in lieu
of §§ 800.3 through 800.6.
(b) Alternatives to agency procedures.
In the event an agency official proposes
an emergency undertaking as an
essential and immediate response to a
disaster or emergency declared by the
President, a tribal government, or the
Governor of a State or another
immediate threat to life or property, and
the agency has not developed
procedures pursuant to paragraph (a) of
this section, the agency official may
comply with section 106 by:
(1) Following a programmatic
agreement developed'pursuant to
§800.14(b) that contains specific
provisions for dealing with historic
properties in emergency situations; or
(2) Notifying the Council, the
appropriate SHPO/THPO and any
Indian tribe or Native Hawaiian
organization that may attach religious
and cultural significance to historic
properties likely to be affected prior to
the undertaking and affording them an
opportunity to comment within seven
days of notification. If the agency
official determines that circumstances
do not permit seven days for comment,
the agency official shall notify the
Council, the SHPO/THPO and the
Indian tribe or Native Hawaiian
organization and invite any comments
within the time available.
(c) Local governments responsible for
section 106 compliance. When a local
government official serves as the agency
official for section 106 compliance,
paragraphs (a) and (b) of this section
also apply to an imminent threat to
public health or safety as a result of a
natural disaster or emergency declared
by a local government's chief executive
officer or legislative body, provided that
if the Council or SHPO/THPO objects to
the proposed action within seven days,
the agency official shall comply with
§§ 800.3 through 800.6.
(d) Applicability. This section applies
only to undertakings that will be
implemented within 30 days after the
disaster or emergency has been formally
declared by the appropriate authority.
An agency may request an extension of
the period of applicability from the
Council prior to the expiration of the 30
days. Immediate rescue and salvage
operations conducted to preserve life or
property are exempt from the provisions
of section 106 and this part.
§ 800.13 Post-review discoveries.
(a) Planning for subsequent
discoveries.
(1) Using a programmatic agreement.
An agency official may develop a
programmatic agreement pursuant to
§ 800.14(b) to govern the actions to be
taken when historic properties are
discovered during the implementation
of an undertaking.
(2) Using agreement documents.
When the agency official's identification
efforts in accordance with § 800.4
indicate that historic properties are
likely to be discovered during
implementation of an undertaking and
no programmatic agreement has been
developed pursuant to paragraph (a)(l)
of this section, the agency official shall
include in any finding of no adverse
effect or memorandum of agreement a
process to resolve any adverse effects
upon such properties. Actions in
conformance with the process satisfy
the agency official's responsibilities
under section 106 and this part.
(b) Discoveries without prior
planning. If historic properties are
discovered or unanticipated effects on
historic properties found after the
agency official has completed the
section 106 process without establishing
a process under paragraph (a) of this
section, the agency official shall make
reasonable efforts to avoid, minimize or
mitigate adverse effects to such
properties and:
(1) If the agency official has not
approved the undertaking or if
construction on an approved
undertaking has not commenced,
consult to resolve adverse effects
pursuant to § 800.6; or
(2) If the agency official, the SHPO/
THPO and any Indian tribe or Native
Hawaiian organization that might attach
religious and cultural significance to the
affected property agree that such
property is of value solely for its
scientific, prehistoric, historic or
archeological data, the agency official
may comply with the Archeological and
Historic Preservation Act instead of the
procedures in this part and provide the
Council, the SHPO/THPO, and the
Indian tribe or Native Hawaiian
organization with a report on the actions
.within a reasonable time after they are
completed; or
(3) If the agency official has approved
the undertaking and construction has
commenced, determine actions that the
agency official can take to resolve
adverse effects, and notify the SHPO/
THPO, any Indian tribe or Native
Hawaiian organization that might attach
religious and cultural significance to the
affected property, and the Council
within 48 hours of the discovery. The
notification shall describe the agency
official's assessment of National Register
eligibility of the property and proposed
actions to resolve the adverse effects.
The SHPO/THPO, the Indian tribe or
Native Hawaiian organization and the
Council shall respond within 48 hours
of the notification. The agency official
shall take into account their
recommendations regarding National
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77736 Federal Register/Vol. 65, No. 239/Tuesday, December 12, 2000/Rules and Regulations
Register eligibility and proposed
actions, and then carry out appropriate
actions. The agency official shall
provide the SHPO/THPO, the Indian
tribe or Native Hawaiian organization
and the Council a report of the actions
when they are completed.
(c) Eligibility of properties. The
agency official, in consultation with the
SHPO/THPO, may assume a newly-
discovered property to be eligible for the
National Register for purposes of section
106. The agency official shall specify
the National Register criteria used to
assume the property's eligibility so that
information can be used in the
resolution of adverse effects.
(d) Discoveries on tribal lands. If
historic properties are discovered on
tribal lands, or there are unanticipated
effects on historic properties found on
tribal lands, after the agency official has
completed the section 106 process
without establishing a process under
paragraph (a) of this section and
construction has commenced, the
agency official shall comply with
applicable tribal regulations and
procedures and obtain the concurrence
of the Indian tribe on the proposed
action.
Subpart C—Program Alternatives
§800.14 Federal agency program
alternatives.
(a) Alternate procedures. An agency
official may develop procedures to
implement section 106 and substitute
them for all or part of subpart B of this
part if they are consistent with the
Council's regulations pursuant to
section 110(a)(2)(E) of the act.
(1) Development of procedures. The
agency official shall consult with the
Council, the National Conference of
State Historic Preservation Officers, or
individual SHPO/THPOs, as
appropriate, and Indian tribes and
Native Hawaiian organizations, as
specified in paragraph (f) of this section,
in the development of alternate
procedures, publish notice of the
availability of proposed alternate
procedures in the Federal Register and
take other appropriate steps to seek
public input during the development of
alternate procedures.
(2) Council review. The agency official
shall submit the proposed alternate
procedures to the Council for a 60-day
review period. If the Council finds the
procedures to be consistent with this
part, it shall notify the agency official
and the agency official may adopt them
as final alternate procedures.
(3) Notice. The agency official shall
notify the parties with which it has
consulted and publish notice of final
alternate procedures in the Federal
Register.
(4) Legal effect. Alternate procedures
adopted pursuant to this subpart
substitute for the Council's regulations
for the purposes of the agency's
compliance with section 106, except
that where an Indian tribe has entered
into an agreement with the Council to
substitute tribal historic preservation
regulations for the Council's regulations
under section 101(d)(5) of the act, the
agency shall follow those regulations in
lieu of the agency's procedures
regarding undertakings on tribal lands.
Prior to the Council entering into such
agreements, the Council will provide
Federal agencies notice and opportunity
to comment on the proposed substitute
tribal regulations.
(b) Programmatic agreements. The
Council and the agency official may
negotiate a programmatic agreement to
govern the implementation of a
particular program or the resolution of
adverse effects from certain complex
project situations or multiple
undertakings.
(1) Use of programmatic agreements.
A programmatic agreement may be
used:
(i) When effects on historic properties
are similar and repetitive or are multi-
State or regional in scope;
(ii) When effects on historic
properties cannot be fully determined
prior to approval of an undertaking;
(Hi) When nonfederal parties are
delegated major decisionmaking
responsibilities;
(iv) Where routine management
activities are undertaken at Federal
installations, facilities, or other land-
management units; or
(v) Where other circumstances
warrant a departure from the normal
section 106 process.
(2) Developing programmatic
agreements for agency programs.
(i) The consultation shall involve, as
appropriate, SHPO/THPOs, the National
Conference of State Historic
Preservation Officers (NCSHPO), Indian
tribes and Native Hawaiian
organizations, other Federal agencies,
and members of the public. If the
programmatic agreement has the
potential to affect historic properties on
tribal lands or historic properties of
religious and cultural significance to an
Indian tribe or Native Hawaiian
organization, the agency official shall
also follow paragraph (f) of this section.
(ii) Public participation. The agency
official shall arrange for public
participation appropriate to the subject
matter and the scope of the program and
in accordance with subpart A of this
part. The agency official shall consider
the nature of the program and its likely
effects on historic properties and take
steps to involve the individuals,
organizations and entities likely to be
interested.
(iii) Effect. The programmatic
agreement shall take effect when
executed by the Council, 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. A programmatic
agreement shall take effect on tribal
lands only when the THPO, Indian
tribe, or a designated representative of
the tribe is a signatory to the agreement.
Compliance with the procedures
established by an approved
programmatic agreement satisfies the
agency's section 106 responsibilities for
all individual undertakings of the
program covered by the agreement until
it expires or is terminated by the agency,
the president of NCSHPO when a
signatory, or the Council. Termination
by an individual SHPO/THPO shall
only terminate the application of a
regional programmatic agreement
within the jurisdiction of the SHPO/
THPO. If a THPO assumes the
responsibilities of a SHPO pursuant to
section 101(d)(2) of the act and the
SHPO is signatory to programmatic
agreement, the THPO assumes the role
of a signatory, including the right to
terminate a regional programmatic
agreement on lands under the
jurisdiction of the tribe.
(iv) Notice. The agency official shall
notify the parties with which it has
consulted that a programmatic
agreement has been executed under
paragraph (b) of this section, provide
appropriate public notice before it takes
effect, and make any internal agency
procedures implementing the agreement
readily available to the Council, SHPO/
THPOs, and the public.
(v) If the Council determines that the
terms of a programmatic agreement are
not being carried out, or if such an
agreement is terminated, the agency
official shall comply with subpart B of
this part with regard to individual
undertakings of the program covered by
the agreement.
(3) Developing programmatic
agreements for complex or multiple
undertakings. Consultation to develop a
programmatic agreement for dealing
with the potential adverse effects of
complex projects or multiple
undertakings shall follow § 800.6. If
consultation pertains to an activity
involving multiple undertakings and the
parties fail to reach agreement, then the
agency official shall comply with the
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provisions of subpart B of this part for
each individual undertaking.
(4) Prototype programmatic
agreements. The Council may designate
an agreement document as a prototype
programmatic agreement that may be
used for the same type of program or
undertaking in more than one case or
area. When an agency official uses such
a prototype programmatic agreement,
the agency official may develop and
execute the agreement with the
appropriate SHPO/THPO and the
agreement shall become final without
need for Council participation in
consultation or Council signature.
(c) Exempted categories.
(I) Criteria for establishing. An agency
official may propose a program or
category of agency undertakings that
may be exempted from review under the
provisions of subpart B of this part, if
the program or category meets the
following criteria:
(i) The actions within the program or
category would otherwise qualify as
"undertakings" as defined in § 800.16;
(ii) The potential effects of the
undertakings within the program or
category upon historic properties are
foreseeable and likely to be minimal or
not adverse; and
(iii) Exemption of the program or
category is consistent with the purposes
of the act.
(2) Public participation. The agency
official shall arrange for public
participation appropriate to the subject
matter and the scope of the exemption
and in accordance with the standards in
subpart A of this part. The agency
official shall consider the nature of the
exemption and its likely effects on
historic properties and take steps to
involve individuals, organizations and
entities likely to be interested.
(3) Consultation with SHPOs/THPOs.
The agency official shall notify and
consider the views of the SHPOs/THPOs
on the exemption.
(4) Consultation with Indian tribes
and Native Hawaiian organizations. If
the exempted program or category of
undertakings has the potential to affect
historic properties on tribal lands or
historic properties of religious and
cultural significance to an Indian tribe
or Native Hawaiian organization, the
Council shall follow the requirements
for the agency official set forth in
paragraph (f) of this section.
(5) Council review of proposed
exemptions. The Council shall review a
request for an exemption that is
supported by documentation describing
the program or category for which the
exemption is sought, demonstrating that
the criteria of paragraph (c)(l) of this
section have been met, describing the
methods used to seek the views of the
public, and summarizing any views
submitted by the SHPO/THPOs, the
public, and any others consulted.
Unless it requests further information,
the Council shall approve or reject the
proposed exemption within 30 days of
receipt, and thereafter notify the agency
official and SHPO/THPOs of the
decision. The decision shall be based on
the consistency of the exemption with
the purposes of the act, taking into
consideration the magnitude of the
exempted undertaking or program and
the likelihood of impairment of historic
properties in accordance with section
214 of the act.
(6) Legal consequences. Any
undertaking that falls within an
approved exempted program or category
shall require no further review pursuant
to subpart B of this part, unless the
agency official or the Council
determines that there are circumstances
under which the normally excluded
undertaking should be reviewed under
subpart B of this part.
(7) Termination. The Council may
terminate an exemption at the request of
the agency official or when the Council
determines that the exemption no longer
meets the criteria of paragraph (c)(l) of
this section. The Council shall notify
the agency official 30 days before
termination becomes effective.
(8) Notice. The agency official shall
publish notice of any approved
exemption in the Federal Register.
(d) Standard treatments.
(1) Establishment. The Council, on its
own initiative or at the request of
another 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 subpart B of this part. The Council
shall publish notice of standard
treatments in the Federal Register.
(2) Public participation. The Council
shall arrange for public participation
appropriate to the subject matter and the
scope of the standard treatment and
consistent with subpart A of this part.
The Council shall consider the nature of
the standard treatment and its likely
effects on historic properties and the
individuals, organizations and entities
likely to be interested. Where an agency
official has proposed a standard
treatment, the Council may request the
agency official to arrange for public
involvement.
(3) Consultation with SHPOs/THPOs.
The Council shall notify and consider
the views of SHPOs/THPOs on the
proposed standard treatment.
(4) Consultation with Indian tribes
and Native Hawaiian organizations. If
the proposed standard treatment has the
potential to affect historic properties on
tribal lands or historic properties of
religious and cultural significance to an
Indian tribe or Native Hawaiian
organization, the Council shall follow
the requirements for the agency official
set forth in paragraph (f) of this section.
(5) Termination. The Council may
terminate a standard treatment by
publication of a notice in the Federal
Register 30 days before the termination
takes effect.
(e) Program comments. An agency
official may request the Council to
comment on a category of undertakings
in lieu of conducting individual reviews
under §§ 800.4 through 800.6. The
Council may provide program
comments at its own initiative.
(l) Agency request. The agency
official shall identify the category of
undertakings, specify the likely effects
on historic properties, specify the steps
the agency official will take to ensure
that the effects are taken into account,
identify the time period for which the
comment is requested and summarize
any views submitted by the public.
(2) Public participation. The agency
official shall arrange for public
participation appropriate to the subject
matter and the scope of the category and
in accordance with the standards in
subpart A of this part. The agency
official shall consider the nature of the
undertakings and their likely effects on
historic properties and the individuals,
organizations and entities likely to be
interested.
(3) Consultation with SHPOs/THPOs.
The Council shall notify and consider
the views of SHPOs/THPOs on the
proposed program comment.
(4) Consultation with Indian tribes
and Native Hawaiian organizations. If
the program comment has the potential
to affect historic properties on tribal
lands or historic properties of religious
and cultural significance to an Indian
tribe or Native Hawaiian organization,
the Council shall follow the
requirements for the agency official set
forth in paragraph (f) of this section.
(5) Council action. Unless the Council
requests additional documentation,
notifies the agency official that it will
decline to comment, or obtains the
consent of the agency official to extend
the period for providing comment, the
Council shall comment to the agency
official within 45 days of the request.
(i) If the Council comments, the
agency official shall take into account
the comments of the Council in carrying
out the undertakings within the category
and publish notice in the Federal
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77738 Federal Register/Vol. 65, No. 239/Tuesday, December 12, 2000/Rules and Regulations
Register of the Council's comments and
steps the agency will take to ensure that
effects to historic properties are taken
into account.
(ii) If the Council declines to
comment, the agency official shall
continue to comply with the
requirements of §§ 800.3 through 800.6
for the individual undertakings.
(6) Withdrawal of comment. If the
Council determines that the
consideration of historic properties is
not being carried out in a manner
consistent with the program comment,
the Council may withdraw the comment
and the agency official shall comply
with the requirements of §§ 800.3
through 800.6 for the individual
undertakings.
(f) Consultation with Indian tribes and
Native Hawaiian organizations when
developing program alternatives.
Whenever an agency official proposes a
program alternative pursuant to
paragraphs (a) through (e) of this
section, the agency official shall ensure
that development of the program
alternative includes appropriate
government-to-government consultation
with affected Indian tribes and
consultation with affected Native
Hawaiian organizations.
(1) Identifying affected Indian tribes
and Native Hawaiian organizations. If
any undertaking covered by a proposed
program alternative has the potential to
affect historic properties on tribal lands,
the agency official shall identify and
consult with the Indian tribes having
jurisdiction over such lands. If a
proposed program alternative has the
potential to affect historic properties of
religious and cultural significance to an
Indian tribe or a Native Hawaiian
organization which are located off tribal
lands, the agency official shall identify
those Indian tribes and Native Hawaiian
organizations that might attach religious
and cultural significance to such
properties and consult with them. When
a proposed program alternative has
nationwide applicability, the agency
official shall identify an appropriate
government to government consultation
with Indian tribes and consult with
Native Hawaiian organizations in
accordance with existing Executive
orders, Presidential memoranda, and
applicable provisions of law.
(2) Results of consultation. The
agency official shall provide summaries
of the views, along witii copies of any
written comments, provided by affected
Indian tribes and Native Hawaiian
organizations to the Council as part of
the documentation for the proposed
program alternative. The agency official
and the Council shall take those views
into account in reaching a final decision
on the proposed program alternative. .
§800.15 Tribal, State, and local program
alternatives. [Reserved]
§800.16 Definitions.
(a) Act means the National Historic
Preservation Act of 1966, as amended,
16 U.S.C. 470^70w-6.
(b) Agency means agency as defined
in 5 U.S.C. 551.
(c) Approval of the expenditure of
funds means any final agency decision
authorizing or permitting the
expenditure of Federal funds or
financial assistance on an undertaking,
including any agency decision that may
be subject to an administrative appeal.
(d) Area of potential effects means the
geographic area or areas within which
an undertaking may directly or
indirectly cause alterations in the
character or use of historic properties, if
any such properties exist. The area of
potential effects is influenced by the
scale and nature of an undertaking and
may be different for different kinds of
effects caused by the undertaking.
(e) Comment means the findings and
recommendations of the Council
formally provided in writing to the head
of a Federal agency under section 106.
(f) Consultation means the process of
seeking, discussing, and considering the
views of other participants, and, where
feasible, seeking agreement with them
regarding matters arising in the section
106 process. The Secretary's "Standards
and Guidelines for Federal Agency
Preservation Programs pursuant to the
National Historic Preservation Act"
provide further guidance on
consultation.
(g) Council means the Advisory
Council on Historic Preservation or a
Council member or employee
designated to act for the Council.
(h) Day or days means calendar days.
(i) Effect means alteration to the
characteristics of a historic property
qualifying it for inclusion in or
eligibility for the National Register.
(j) Foreclosure means an action taken
by an agency official that effectively
precludes the Council from providing
comments which the agency official can
meaningfully consider prior to the
approval of the undertaking.
(k) Head of the agency means the
chief official of the Federal agency
responsible for all aspects of the
agency's actions. If a State, local, or
tribal government has assumed or has
been delegated responsibility for section
106 compliance, the head of that unit of
government shall be considered the
head of the agency.
(1)(1) Historic property means any
prehistoric or historic district, site,
building, structure, or object included
in, or eligible for inclusion in, the
National Register of Historic Places
maintained by the Secretary of the
Interior. This term includes artifacts,
records, and remains that are related to
and located within such properties. The
term includes properties of traditional
religious and cultural importance to an
Indian tribe or Native Hawaiian
organization and that meet the National
Register criteria.
(2) The term eligible for inclusion in
the National Register includes both
properties formally determined as such
in accordance with regulations of the
Secretary of the Interior and all other
properties that meet the National
Register criteria.
(in) Indian tribe means an Indian
tribe, band, nation, or other organized
group or community, including a native
village, regional corporation, or village
corporation, as those terms are defined
in section 3 of the Alaska Native Claims
Settlement Act (43 U.S.C. 1602), which
is recognized as eligible for the special
programs and services provided by the
United States to Indians because of their
status as Indians.
(n) Local government means a city,
county, parish, township, municipality,
borough, or other general purpose
political subdivision of a State.
(o) Memorandum of agreement means
the document that records the terms and
conditions agreed upon to resolve the
adverse effects of an undertaking upon
historic properties.
(p) National Historic Landmark
means a historic property that the
Secretary of the Interior has designated
a National Historic Landmark.
(q) National Register means the
National Register of Historic Places
maintained by the Secretary of the
Interior.
(r) National Register criteria means
the criteria established by the Secretary
of the Interior for use in evaluating the
eligibility of properties for the National
Register (36 CFR part 60).
(s)(l) Native Hawaiian organization
means any organization which serves
and represents the interests of Native
Hawaiians; has as a primary and stated
purpose the provision of services to
Native Hawaiians; and has
demonstrated expertise in aspects of
historic preservation that are significant
to Native Hawaiians.
(2) Native Hawaiian means any
individual who is a descendant of the
aboriginal people who, prior to 1778,
occupied and exercised sovereignty in
the area that now constitutes the State
of Hawaii.
(t) Programmatic agreement means a
document that records the terms and
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Federal Register/Vol. 65, No. 239/Tuesday, December 12, 2000/Rules and Regulations 77739
conditions agreed upon to resolve the
potential adverse effects of a Federal
agency program, complex undertaking
or other situations in accordance with
§ 800.14(b).
(u) Secretary means the Secretary of
the Interior acting through the Director
of the National Park Service except
where otherwise specified.
(v) State Historic Preservation Officer
(SHPO) means the official appointed or
designated pursuant to section 101(b)(l)
of the act to administer the State historic
preservation program or a representative
designated to act for the State historic
preservation officer.
(w) Tribal Historic Preservation
Officer (THPO) means the tribal official
appointed by the tribe's chief governing
authority or designated by a tribal
ordinance or preservation program who
has assumed the responsibilities of the
SHPO for purposes of section 106
compliance on tribal lands in
accordance with section 101(d)(2) of the
act.
(x) Tribal lands means all lands
within the exterior boundaries of any
Indian reservation and all dependent
Indian communities.
(y) Undertaking means a project,
activity, or program funded in whole or
in part under the direct or indirect
jurisdiction of a Federal agency,
including those carried out by or on
behalf of a Federal agency; those carried
out with Federal financial assistance;
those requiring a Federal permit, license
or approval; and those subject to State
or local regulation administered
pursuant to a delegation or approval by
a Federal agency.
Appendix A to Part 800—Criteria for
Council Involvement in Reviewing
Individual section 106 Cases
(a) Introduction. This appendix sets forth
the criteria that will be used by the Council
to determine whether to enter an individual
section 106 review that it normally would
not be involved in.
(b) General policy. The Council may
choose to exercise its authorities under the
section 106 regulations to participate in an
individual project pursuant to the following
criteria. However, the Council will not
always elect to participate even though one
or more of the criteria may be met.
(c) Specific criteria. The Council is likely
to enter the section 106 process at the steps
specified in the regulations in this part when
an undertaking:
(1) Has substantial impacts on important
historic properties. This may include adverse
effects on properties that possess a national
level of significance or on properties that are
of unusual or noteworthy importance or are
a rare property type; or adverse effects to
large numbers of historic properties, such as
impacts to multiple properties within a
historic district.
(2) Presents important questions of policy
or interpretation. This may include questions
about how the Council's regulations are being
applied or interpreted, including possible
foreclosure or anticipatory demolition
situations; situations where the outcome will
set a precedent affecting Council policies or
program goals; or the development of
programmatic agreements that alter the way
the section 106 process is applied to a group
or type of undertakings.
(3) Has the potential for presenting
procedural problems. This may include cases
with substantial public controversy that is
related to historic preservation issues; with
disputes among or about consulting parties
which the Council's involvement could help
resolve; that are involved or likely to be
involved in litigation on the basis of section
106; or carried out by a Federal agency, in
a State or locality, or on tribal lands where
the Council has previously identified
problems with section 106 compliance
pursuant to § 800.9(d)(2).
(4) Presents issues of concern to Indian
tribes or Native Hawaiian organizations. This
may include cases where there have been
concerns raised about the identification of,
evaluation of or assessment of effects on
historic properties to which an Indian tribe
or Native Hawaiian organization attaches
religious and cultural significance; where an
Indian tribe or Native Hawaiian organization
has requested Council involvement to assist
in the resolution of adverse effects; or where
there are questions relating to policy,
interpretation or precedent under section 106
or its. relation to other authorities, such as the
Native American Graves Protection and
Repatriation Act.
Dated: December 4th, 2000.
John M. Fowler,
Executive Director.
[FR Doc. 00-31253 Filed 12-11-00; 8:45 am]
BILLING CODE 4310-10-P
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ATTACHMENT 4
PROFESSIONAL
QUALIFICATION
STANDARDS
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NATIONAL PARK SERVICE PROFESSIONAL QUALIFICATION STANDARDS
The National Park Service published these Professional Qualification Standards as part of the
larger Secretary of the Interior's Standards and Guidelines for Archeology and Historic
Preservation. These requirements are those used by the National Park Service, as published in the
Code of Federal Regulations, 36 CFR Part 61.
The qualifications define minimum education and experience required to perform identification,
evaluation, registration, and treatment activities: In some cases, additional areas or levels of
expertise may be needed, depending on the complexity of the task and the nature of the historic
properties involved. In the following definitions, a year of full-time professional experience need
-not consist of a continuous year of full-time work but maybe made up of discontinuous periods
of full-time or part-time work adding up to the equivalent of a year of full-time experience.
History
The minimum professional qualifications in history are a graduate degree in history or closely
related field; or a bachelor's degree in history or closely related field plus one of the following:
1. At least two years of full-time experience in research, writing, teaching,
interpretation, or other demonstrable professional activity with an academic
institution, historical organization or agency, museum, or other professional
institution; or
2. Substantial contribution through research and publication to the body of scholarly
knowledge in the field of history.
Archeology
The minimum professional qualifications in archeology are a graduate degree in archeology,
anthropology, or closely related field plus:
1. At least one year of full-time professional experience-or.equivalent specialized
training in archeological research, administration or management;
2. At least four months of supervised field and analytic experience in general North
American archeology; and
3. Demonstrated ability to carry research to completion.
In addition to these minimum qualifications, a professional in prehistoric archeology shall have
at least one year of full-time professional experience at a supervisory level in the study of
archeological resources of the prehistoric period.
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A professional in historic archeology shall have at least one year of full-time professional
experience at a supervisory level in the study of archeological resources of the historic period.
Architectural History
The minimum professional qualifications in architectural history are a graduate degree in
architectural history, art history, historic preservation, or closely related field, with coursework in
American architectural history; or a bachelor's degree in architectural history, art history, historic
preservation or closely related field plus one of the following:
1. .At least two years of full-time experience in research, writing, or teaching in
American architectural history or restoration architecture with an academic
institution, historical organization or agency, museum,; or other professional
institution; or
2. Substantial contribution through research and publication to the body of scholarly
knowledge in the field of American architectural history.
Architecture
The minimum professional qualifications in architecture are a professional degree in architecture
plus at least two years of full-time experience in architecture; or a State license to practice
architecture.
Historic Architecture
The minimum professional qualifications in historic architecture are a professional degree in
architecture or a State license to practice architecture, plus one of the following:
1. At least one year of graduate study in architectural preservation, American
architectural history, preservation planning, or closely related field; or
2. At least one yearof full-time professional experience^on,historic preservation
projects.
Such graduate study or experience shall include detailed investigations of historic structures,
preparation of historic structures research reports, and preparation of plans and specifications for
preservation projects.
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ATTACHMENT 5
SUGGESTIONS FOR
MOA WRITING
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SUGGESTIONS FOR MOA WRITING*
Since an MOA document binds its parties to do or refrain from specified actions, it is vital that the document be
clear, consistent, understandable, and subject to as little misinterpretation as possible. The following suggestions
are offered to help preparers of such documents avoid ambiguities that may cause problems in implementation.
Be sure to identify the undertaking clearly
The undertaking that is the subject of the agreement document should be clearly identified in the document, in a
manner consistent with the way the undertaking is identified in the supporting documentation submitted to the
Council. In an MOA, the undertaking is usually identified in the first "Whereas" clause, as shown in Figures 3 and
4 in Part V of this publication, "Standard Memorandum of Agreement Formats."
In a letter making an NAE determination, the undertaking is usually identified in the text of the letter with reference
to accompanying documentation. The identification is usually similar to the following text:
We have determined that our installation rehabilitation program, described in the enclosed Installation
Rehabilitation Program Plan dated March 29,1992, will have no adverse effect....
Identify the responsible agency
Since the Federal agency responsible for the undertaking is also responsible for ensuring that the terms of the
agreement document are carried out, it is vital for that agency to be identified clearly in the document. Where an
agency's regional office or field office is the responsible party, and therefore signs the agreement document, this
should be clearly indicated. For example:
WHEREAS, the Rhode Island State Office of the Bureau of Land Management has determined....
Assign duties only to signatory or concurring parties
An agreement document cannot impose obligations on parties that do not sign it. Therefore, if an agreement
document says that "Party X will carry out action Y," Party X must sign the document as a consulting or concurring
party. Where Party X is the applicant for or recipient of Federal assistance, permit, or license, and is not a
signatory, the agreement document must bind the Federal agency responsible for the assistance, permit, or license
to ensure that Party X carries out the duties assigned it. For example:
The Corps of Engineers will require the applicant to carry out the following:
Or
The Corps of Engineers will ensure that the following measures are carried out:
Beware the use of passive voice
An example of the use of passive voice is the statement: "Building X will be rehabilitated in accordance with the
Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings." The
statement gives no indication as to who will rehabilitate the building. It indicates only that somehow, mysteriously,
the building will be rehabilitated. No one is assigned responsibility, and the party who actually has responsibility
could, if so inclined, deny that such responsibility had legally been assigned to him or her.
There are two ways to remedy this problem. The first, naturally, is to use the active voice and say:
"Agency A will rehabilitate Building X in accordance with suchandso standards."
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The alternative is to specify that:
"Agency A will ensure that the following [conditions or stipulations] are carried out," and then say "Building X
will be rehabilitated "
The former approach is desirable when it is certain who will actually carry out the specified activity. The latter is
preferable when the party ultimately responsible for the activity is known, but the party who will actually do it—for
example, one of several applicants for Federal assistance or a contractor not yet selected-is not known.
Include all agreed-upon provisions
An agreement document should be comprehensive, including all the items agreed to by the parties involved in its
preparation, either in the text of the document or by reference. The fact that an agency has stated that it will do
something in a context other than the agreement document may be found later to have little force if the commitment
is not referenced in the document itself. For example, if an agency says in an Environmental Impact Statement that
it will take (or will not take) particular actions with respect to a historic property, this statement should be reiterated
or referenced in the relevant Section 106 agreement document.
Remember the "cold" reader
An agreement document should be clear to the "cold" (outside) reader. It should always be remembered that an
agreement document may be scrutinized by a court of law, and must be able to withstand such scrutiny. Each
sentence should be straightforward and to the point, and written in language that can be easily understood. If
specialized terms are used they should be defined. Terms that are meaningful only to the parties preparing the
agreement should be avoided or rephrased to be meaningful to others.
Identify shorthand references
The full name of each entity involved in an agreement document should be spelled out the first time the entity is
referred to, with the acronym or other shorthand referent (Council, SHPO, Bureau, etc.) placed in parentheses or
brackets immediately following the name. Thereafter the acronym or other shorthand can be used throughout the
document. For example:
The Bureau of Land Management (BLM) has consulted with the Rhode Island State Historic
Preservation Officer (SHPO)
Structure the document logically
An agreement document should be organized in a clear, structured form. For example, if several historic properties
are being dealt with in different ways, the conditions or stipulations addressing each should be grouped together,
rather than scattered throughout the document. Similarly, if activities that have been agreed upon will occur in
sequence, that sequence should be reflected in the document. For example, if a building will be documented, then
moved, and then rehabilitated, a condition or stipulation providing for documentation should come before one for
moving, which should precede one for rehabilitation.
Identify properties clearly and completely
In the case of a PA, it is likely that the historic properties actually subject to effect will not be known, so they
cannot be identified in the document itself. In an NAE determination or MOA, however, the properties to which the
document refers should be clearly identified.
If the document does not cover all historic properties subject to effect by the undertaking, it should specify which
such properties are not covered. In the latter instance, documentation accompanying the agreement document
should specify why all historic properties are not covered, and how Section 106 has been or will be complied with
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in respect to those properties not covered by the document.
The properties to which an MOA applies are usually specified in the "Whereas" clauses. For example:
WHEREAS, Agency A has determined that its Installation Y rehabilitation project will
have an effect upon Building X ....
Properties are usually similarly specified in letters making determinations of NAE:
Agency A has determined that, subject to the following conditions, its Installation Y rehabilitation project
will have no adverse effect on Building X.
Where multiple properties are involved, the agreement document should make clear which conditions or stipulations
refer to which properties. For example:
Agency A will rehabilitate Building X in accordance with suchandso standards.
Or
Agency A will ensure that archeological site 53BB782 is excavated and reported in accordance with the
attached "Research Design for the Excavation of Archeological Site 53BB782"
In some cases an MOA may address both known historic properties and some that have not yet been identified. For
example, an MOA might address rehabilitation of a historic building, but also provide for monitoring ground
disturbance in the event a suspected but unverified archeological site existed under the building. Similarly, an
MOA covering a highway construction project might cover both identified historic properties subject to effect by
the construction itself, and not-yet fully identified properties in larger areas where the presence of the highway
would be likely to stimulate growth.
In such a case stipulations establishing a process for identifying and treating properties not yet fully identified
should be included. (For further discussion and examples of such stipulations see page IV-131, "Monitoring
disturbance of archeological sites"; "Archeological survey"; and "Archeological plan implementation." The fact
that unidentified historic properties might be affected should be acknowledged in the "Whereas" clauses, for
example:
WHEREAS, Agency A has determined that its Installation Y rehabilitation project will have an effect upon
Building X and possibly on other historic properties ....
Cover the whole undertaking
Each agreement document should cover all the effects of the subject undertaking on all historic properties, so that
compliance with Section 106 is unambiguously attained for the entire undertaking. Consulting parties should try to
avoid using multiple agreement documents for different aspects of the same undertaking, or for different types or
groups of properties affected by the same undertaking.
Provide complete citations
Plans, standards, and guidelines to be used in carrying out activities under an agreement should be clearly and
accurately identified in the agreement document, with full legal citations. For example:
Agency A will rehabilitate Building X in accordance with the "Plan for the Rehabilitation of Building X"
by Roger A. Rehab, dated March 29, 1993, and attached hereto as Appendix D.
Or
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Agency A will rehabilitate Building X in accordance with the recommended treatments in the Secretary of
the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings, U.S.
Department of the Interior, National Park Service, 1983.
If an agency anticipates that a guideline to be cited may be revised before the agreement document is implemented,
and the agency wants the revised guideline to be followed, this can be stated in the following form:
Agency A will rehabilitate Building X in accordance with the recommended treatments in the Secretary of
the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings U.S.
Department of the Interior, National Park Service, 1983 (Standards and Guidelines), subject to any
pertinent revisions that the Secretary of the Interior may make in the Standards and Guidelines prior to
finalization of rehabilitation plans.
A similar form may be used if an agency refers to draft guidelines, but the agency anticipates that the guidelines
will become final before the agreement is implemented and desires that the final,: rather than the draft, guidelines be
followed. For example:
Agency A will rehabilitate Building X in accordance with the Standards for Rehabilitating Historic X-Type
Buildings in the State of Rhode Island, Rhode Island SHPO, draft dated March 29, 1992 Standards for
Rehabilitation, subject to any pertinent revisions that the Rhode Island SHPO may make in the Standards
for Rehabilitation prior to finalization of rehabilitation plans.
Use consistent terminology
Decide at the outset what terms to use for things, and use them consistently throughout. For example, don't refer to
something as an "undertaking" in one paragraph and a "project" in another, or to the Bureau of Land Management
as the "Bureau" in one place and "BLM" in another, or to something as a "historic property" in one place and a
"historic site" in another.
Use terms that are consistent with statutory definitions where applicable
Where statutory definitions exist, their use is preferred. For example, "historic property" is defined at Section
301(5) of NHPA, and unless there is some very good reason to do otherwise, that definition should be used in
preference to such alternatives as "historic site" or "cultural resource."
Define terms
Unusual or specialized terms should be defined, as should terms that have a particular meaning with reference to
the undertaking covered by the agreement document. For example, if the document provides for something to be
done throughout an undertaking's area of potential effects [see 36 CFR (185) 800.2(c)], that area should be clearly
defined, with an appropriate map attached or referenced in the document. An optional "Whereas" clause may be
provided, which refers to appended definitions. Of course, if no terms are used that need to be defined, no such
appendix or clause need be included.
Think ahead
An agreement document is prospective: it describes actions that an agency agrees to perform in the future. No one
can anticipate everything that may happen in the course of an undertaking's future implementation, but the drafter
should think about possibilities and try to provide for them in the document. Especially if the undertaking will take
a long time to begin or complete, the agreement document should provide for periodic review and possible revision
in the event conditions changebefore the agreement is fully implemented. In the context of such an undertaking
changes are also likely in personnel, so it is particularly important that the agreement document be clear, complete,
and comprehensible to an unfamiliar reader who may have to implement or interpret it years after it was executed.
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Include all statutory authorities
One purpose of an agreement document is to show unambiguously that the Federal agency involved has met its
pertinent historic preservation responsibilities, in the event of litigation or other challenge. Accordingly, it is
important not to leave any relevant statutory authorities out of the agreement document. For example, if the
property involved is aNational Historic Landmark (NHL), the agreement document should make it plain that by
carrying out the agreement's terms, the agency is complying with Section 110(f) of NHPA, as well as with Section
106. Similarly, if the agency proposes leasing or exchanging a historic property, or entering into a contract for its
management, the agreement document should refer to Section 111 of NHPA as well as to Section 106.
* This document is excerpted from guidance material prepared by the Advisory Council on Historic
Preservation. The full text of ACHP's guidance document is available on-line at the following address:
http://www.achp.gov/agreement.html
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ATTACHMENT 6
EXAMPLE MEMORANDA
OF AGREEMENT
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EXAMPLE 6-A
ATLANTIC STEEL
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 4
ATLANTA FEDERAL CENTER
61 FORSYTH STREET
PRO^° ATLANTA, GEORGIA 30303-8960
PROGRAMMATIC AGREEMENT
AMONG
THE U.S. ENVIRONMENTAL PROTECTION AGENCY
AND THE GEORGIA STATE HISTORIC PRESERVATION OFFICER
REGARDING IMPLEMENTATION OF THE
ATLANTIC STEEL REDEVELOPMENT PROJECT IN ATLANTA, GEORGIA
WHEREAS, the U.S. Environmental Protection Agency (EPA) is involved in the undertaking
known as the Atlantic Steel Redevelopment Project (hereafter Project), consisting of proposed
remediation and redevelopment of an approximately 138-acre former steel mill site currently
owned by Atlantic Steel Industries, Inc. in Atlanta, Georgia; the proposed redevelopment includes
high and mid-rise residential areas, retail areas, hotels, office space, and parking; project plans
include a new 17th Street Bridge that would cross Interstate 75/85 and other related road
improvements as shown in the conceptual development plan provided in Appendix A; and
WHEREAS, the EPA is preparing an Environmental Assessment (EA) for the Atlantic Steel
Redevelopment Project, in accordance with the National Environmental Policy Act of 1969
(NEPA); EPA is involved with this project through its Project XL Program, which stands for
"excellence and Leadership" and encourages companies and communities to come forward with
new approaches that have the potential to advance environmental goals more effectively and
efficiently than have been achieved using traditional regulatory tools (see Appendix A); and
WHEREAS, Atlantis 16th, L.L.C., a developer in Atlanta, is participating with EPA in its Project
XL and is the primary developer responsible for implementation of the redevelopment plan; and
WHEREAS, the EPA has the responsibility to ensure that the conditions of this Agreement will
be implemented; and
WHEREAS, the EPA has identified the former steel mill (hereafter Atlantic Steel) currently
occupied by Atlantic Steel Industries, Inc., as a property eligible for listing in the National
Register; and
WHEREAS, Atlantic Steel Industries, Inc., Atlantis 16*, L.L.C., the Georgia Department of
Natural Resources, Environmental Protection Division, and EPA have determined, after
consideration of avoidance and other minimization alternatives, that demolition of the former steel
mill is a necessary component of environmental remediation and redevelopment of the site; and
WHEREAS, the EPA has determined that demolition of buildings associated with the remediation
of Atlantic Steel constitutes an adverse effect on this historic property; however, until final project
plans are developed, primarily those related to off-site aspects of the redevelopment project, it is
Internet Address (URL) • http://www.epa.gov
Recycled/Recyclable • Printed with Vegetable Oil Based Inks on Recycled Paper (Minimum 30% Postconsumer)
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not possible at this time to fully assess the affects to historic properties not contained within the
Atlantic Steel site, but within the area of potential effects; and
WHEREAS, the EPA has consulted with the Georgia State Historic Preservation Officer (SHPO)
and the Advisory Council on Historic Preservation (Council) pursuant to 36 CFR Part 800.14(b)
of the regulations implementing Section 106 of the NHPA; and
WHEREAS, the EPA has identified the Atlanta History Center (AHC) and the Atlanta Urban
Design Commission (AUDC) as potential consulting parties in accordance with 36 CFR
800.2(a)(4) which have been invited to concur in this Agreement; and
WHEREAS, the EPA has conducted public notification and public involvement about the Project,
including planned efforts to identity historic properties, through its Project XL and NEPA scoping
and environmental analysis process for the Project, as encouraged by 36 CFR 800.2(a)(4); and
WHEREAS, consultation revealed that Atlantic Steel Industries, Inc., has, over a period of
several years, taken several measures to preserve its heritage at various off-site locations (see
Appendix B), including: preservation of selected structures, machinery, and buildings by transfer
or sale to various museums, including the Atlanta History Center, The Railroad Museum in
Savannah, the Southeastern Railway Museum in Duluth, Georgia, and the Carter Machine
Company in Toccoa, Georgia; preservation of company documentary records, photographs,
engineering drawings, and other related documents through transfer to the Atlanta History Center
for storage and display; support of other interpretive efforts including two books documenting the
company's history and a professional photographic exhibit at Georgia Institute of Technology in
1999; plans for creation of a permanent exhibition space celebrating the company's history in the
redevelopment plan; and plans for the integration of selected tools and pieces of machinery in the
redevelopment plan (see Appendix B); and
WHEREAS, the agencies and organizations listed in Appendix C have been identified as
potentially interested parties and either have been contacted by the EPA as part of its scoping
process under NEPA or will be contacted shortly in accordance with 36 CFR 800.3(f) in order to
identify potential consulting parties and invite their participation in the Section 106 process;
specific coordination with Indian tribes and additional public involvement are discussed in the
Stipulations below; and
WHEREAS, for the purposes of this Agreement, the definitions found at 36 CFR 800.16 are
applicable; and
NOW, THEREFORE, the EPA, the SHPO, and the Council agree that the Project will be
implemented in accordance with the following stipulations:
Programmatic Agreement-Atlantic Steel Redevelopment Project—Page 2
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STIPULATIONS
The EPA will ensure that the following measures are carried out:
I. ADMINISTRATIVE STIPULATIONS
A. Professional Qualifications: All studies conducted under the terms of this
Agreement will be carried out or directly supervised by appropriately trained
persons who meet the Secretary of the Interior's Professional Qualification
Standards (48 Fed. Reg. 44738) for the particular field of study in which they are
working. Should the EPA hire new personnel for the purposes of implementing
the terms of this Agreement, the EPA shall forward copies of the professional
qualifications of such persons to the SHPO for its review. The SHPO shall
provide written comments within ten days.
B. The signing and concurring parties to this Agreement agree to perform their
respective obligations, including the execution and delivery of any documents or
approvals as may be necessary or appropriate, in a timely fashion consistent with
the terms and provisions of this Agreement.
Where a specific number of days is specified for review and comment and/or
approval, comments shall be provided in written form within the specified number
of days following receipt of the documents. Failure to respond within this time
frame will constitute concurrence on the part of the reviewing party.
H. TREATMENT OF HISTORIC PROPERTIES
A. Treatment of Atlantic Steel Site (On-Site Properties)
1. Photographic Recordation Plan
The EPA, in consultation with the SHPO, AHC, and AUDC staff, will
develop and implement a photographic recordation plan for Atlantic Steel
prior to demolition and site remediation activities. The plan shall include
large-format photographic recordation that will be performed by a
professional photographer experienced in performing Historic American
Building Survey (HABS)/Historic American Engineering Record (HAER)
photographic documentation to National Park Service standards. The
photographic recordation plan will be developed by the EPA and submitted
to the SHPO for review and approval, and to the AHC and AUDC staff for
review and comment. All reviewing parties shall provide written comments
or acceptance of the photographic recordation plan within ten days after
receipt. Demolition of any part of Atlantic Steel will not begin until the
Programmatic Agreement-Atlantic Steel Redevelopment Project - Page 3
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recordation plan has been approved by the SHPO. It is anticipated that the
recordation plan will include a phased approach of photographic
documentation to allow Atlantic Steel Industries, Inc. and Atlantis 16th,
L.L.C. to demolish certain buildings, while others are still being recorded
and documented. All photographic products for a specific building or
group of buildings will be presented to the SHPO for review and approval
prior to the demolition of such building or group of buildings. SHPO shall
provide comments or acceptance of the photographs within five days after
receipt.
2. Outreach and Public Education
The EPA and Atlantis 16*, L.L.C. shall ensure that information gathered in
accordance with stipulations contained in this Agreement and related to the
history of the Atlantic Steel site is used to produce public information
materials. EPA and Atlantis 16th, L.L.C., in consultation with the SHPO,
AHC, and AUDC staff, will develop and implement an outreach and public
education plan for the Atlantic Steel Redevelopment project. The plan will
focus on public education approaches that benefit preservation in a larger
context and the community as a whole. At a minimum, the following will
be considered:
- Development of oral history of Atlantic Steel site
— Development of a visitor's center/interpretive center as part of the
redevelopment plan
- Educational video and other publications documenting various aspects of
Atlantic Steel and/or its changes through history
— Reuse and/or relocation of either historic buildings, machinery, or steel
making products to be part of either on-site or off-site exhibits
— Publication of appropriate research material
B. Treatment of Other Historic Properties (Off-Site Properties) Identified During the
Section 106 Process
Any other historic properties, not located on the Atlantic Steel site, determined to
experience an adverse effect from the Project will be addressed in accordance with
36 CFR 800 and as stated below in Item III (Continuation of the Section 106
Process for the Project).
CONTINUATION OF THE SECTION 106 PROCESS FOR THE PROJECT
The EPA will comply with the requirements of 36 CFR 800 regarding public involvement,
identification of historic properties, effects assessment, and treatment of properties that
Programmatic Agreement -Atlantic Steel Redevelopment Project - Page 4
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may experience an adverse effect from the Project.
A. Historic Architectural Resources
"Historic architectural resources" include buildings, structures, objects, districts
and landscapes listed in, or eligible for listing in, the National Register of Historic
Places. The EPA will assess the potential for historic architectural resources
within the Project's area of potential effects in accordance with 36 CFR 800. This
will include on-site examination by a professional architectural historian meeting
the qualification standards contained in 36 CFR 61, Appendix A, review of existing
historic maps, previous historic investigations in the Project vicinity, and other
pertinent documentary data. The EPA shall submit to the SHPO and AUDC staff,
for review and comment, an Identification/Effects Assessment Report for the
Project. The report will include discussions of: Description of the Undertaking;
Area of Potential Effect (APE); Efforts to Identify Historic Properties; Affected
Historic Properties; and Adverse Effects. All reviewing parties shall provide
written comments within ten days after receipt. The EPA shall consult with the
SHPO, the concurring parties, and any other consulting parties to develop
treatment strategies for historic architectural resources that will be adversely
affected by the Project. Resolution of any adverse effects will follow 36 CFR
800.6. EPA anticipates development of specific Memorandum of Understanding
(MOU) to document how the adverse effects will be resolved. The MOU will be
developed within the context of this Agreement and will serve as the instrument by
which all parties will agree to final resolution of any adverse effects.
B. Archeological Resources
"Archeological resources" include prehistoric or historic archeological resources
listed in, or eligible for listing in, the National Register of Historic Places. The
EPA will assess the potential for archeological resources within the Project's area
of physical disturbance in accordance with 36 CFR 800. This will include on-site
examination by a professional archeologist meeting the qualification standards
contained in 36 CFR 61, Appendix A and review of existing geophysical data,
historic maps, previous archeological investigations in the Project vicinity, and
other pertinent documentary data. Results will be submitted to the SHPO and
pertinent consulting parties for review and comment. The SHPO shall provide
written comments within ten days after receipt. Any potential subsurface testing
and evaluation of significance will be determined through subsequent consultation
in accordance with 36 CFR 800. The EPA shall consult with the SHPO and any
identified consulting parties to develop treatment strategies for any archeological .
resources that will be adversely affected by the Project. Resolution of any adverse
effects will follow 36 CFR 800.6. EPA anticipates development of specific
Memorandum of Understanding (MOU) to document how the adverse effects will
Programmatic Agreement - Atlantic Steel Redevelopment Project - Page 5
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be resolved. The MOU will be developed within the context of this Agreement
and will serve as the instrument by which all parties will agree to final resolution of
any adverse effects.
IV. TRIBAL COORDINATION
EPA has identified the Indian tribes listed in Appendix C as groups that might attach
religious and cultural significance to historic properties in the area of potential effects. In
accordance with 36 CFR 800.4(a)(4), EPA will solicit any information from these tribes to
assist the agency in identifying properties which may be of religious and cultural
significance to them and may be eligible for the National Register. Based on the results of
this coordination, EPA will complete an effects assessment and identify treatment of these
properties to determine if they may experience an adverse effect from the Project. Further
coordination with the Indian tribes will follow 36 CFR 800.4 through 36 CFR 800.6.
Should any issues of concern be raised by Indian tribes about the identification of,
evaluation of or assessment of effects on these historic properties, EPA will notify the
Council of these concerns and invite their participation in the 106 process.
V. PUBLIC PARTICIPATION
A. Continuation of Public Outreach
EPA and Atlantis 16th, L.L.C. have participated in a number of public stakeholder
meetings to discuss the project. EPA and Atlantis 16th, L.L.C. have also
participated in meetings with an Environmental Justice Focus Group and several
meetings regarding the proposed bridge at the invitation of the City of Atlanta
and/or the Georgia Department of Transportation and the Atlanta Regional
Commission. EPA received valuable feedback on the project from national and
local environmental and transportation groups and other interested organizations
and individuals, as part of its Project XL and NEPA scoping processes.
The EPA will integrate consideration of Project effects on historic properties into
its NEPA environmental analysis process. The EPA will hold public meetings for
purposes of fulfilling requirements of NEPA and NHPA and will include updates
on the status of the identification and evaluation process for historic properties.
Future public notices shall inform the public of their opportunity to comment
pursuant to Section 106 of the NHPA.
B. Review of Public Objections
At any time during implementation of the measures stipulated in this Agreement
should a member of the public raise an objection to any such measure or its manner
of implementation, the EPA shall take the objection into account and consult as
Programmatic Agreement-Atlantic Steel Redevelopment Project—Page 6
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needed with the objecting party, pertinent consulting parties, and the SHPO to
resolve the objection.
VL AMENDMENTS
Any party to this Agreement may request that it be amended, whereupon the parties will
consult in accordance with 36 CFR Part 800.13 to consider such amendment.
VH. DISPUTE RESOLUTION
Should the SHPO object within 20 days to any plans/specifications provided for review or
any actions proposed pursuant to this Agreement, the EPA shall consult with the SHPO to
resolve the objection. If the EPA determines that the objection cannot be resolved, the
EPA shall forward all documentation relevant to the dispute to the Council. Within 30
days after receipt of all pertinent documentation, the Council will provide the EPA with
recommendations which the EPA will take into account, in accordance with 36 CFR
800.6(c)(2), in reaching a final decision regarding the dispute. The EPA shall report its
final decision to the Council within 15 days.
Any recommendation or comment provided by the Council will be understood to pertain
only to the subject of the dispute; the EPA's responsibility to carry out all actions under
this agreement that are not the subject of the dispute will remain unchanged.
Vffl. FAILURE TO CARRY OUT THE TERMS OF THIS AGREEMENT
In the event that the EPA does not carry out the terms of this agreement, the EPA will
comply with 36 CFR 800.4 through 36 CFR 800.6 with regard to the Project.
Programmatic Agreement—Atlantic Steel Redevelopment Project ~ Page 7
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IX. SIGNATORIES
Execution and implementation of this Programmatic Agreement evidences that the EPA has
afforded the Council a reasonable opportunity to comment on the Atlantic Steel Redevelopment
Project and that the EPA has taken into account the Project's effects to historic properties.
UNITED STATES ENVIRONMENTALPROTECTION AGENCY, REGION IV
By:
Name: Heinz Mueller
Title: Chief, Office of Environmental Assessment
GEORGIA STA
By: L
Name: W. Ray Luce
Title: Division Di
STORIC PRESERVATION OFFICER
Date: / 2-
r<
ir and Deputy State Historic Preservation Officer
CONCUR:
By: >
James
Tille: Presidertt
ATLANTA
By:.
Date:
Name: Michael Rose t
Title: Interim Director, Atlanta History Center Archives
ATLANTA.URBAN DESIGN COMMISSION
. Date:
Name:/ Karen Huebner
Title: Executive Director
Programmatic Agreement—Atlantic Steel Redevelopment Project — Page 8
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SECTION 1
NEED AND PURPOSE FOR ACTION
1.1 PROJECT OVERVIEW
Jacoby Atlantic Redevelopment, L.L.C. (hereafter referred to as JAR), a developer in Atlanta,
Georgia, has proposed remediation and redevelopment of approximately 135 acres near Atlanta's
central business district (Figure 1-1). The property to be redeveloped is the site of the former steel
mill owned by Atlantic Steel industries, Inc. (Atlantic Steel). In 1998, the property was rezoned by
the City of Atlanta from Heavy Industrial to Central Area Commercial/Residential-Conditional
(mixed use, with conditions) JAR purchased the property from Atlantic Steel in December 1999.
The proposed development includes a mix of residential and business uses. The planned
redevelopment is expected to include two million square feet of general office, one and a half million
square feet of retail and entertainment uses, two million square feet of high tech offices, 2,400
residential units, and 1,000 hotel rooms.
In addition to the site redevelopment, project plans include construction of a multi-modal (cars,
pedestrians, bicycles, transit) bridge and interchange at 17th Street that would cross Interstate 75/85
(1-75/85) and provide access to the site as well as a connection to Midtown Atlanta and the nearby
Arts Center Metropolitan Atlanta Rapid Transit Authority (MARTA) Station. Roadway
improvements would include extension of the existing 17th Street from West Peachtree Street (U.S.
19/S.R. 9) in Midtown Atlanta, heading west on new alignment over 1-75/85, through the
development, and connecting with Northside Drive (U.S. 41/S.R. 3) at Bishop Street Additional
improvements include modifications to the existing 1-75 and 1-85 southbound ramps to 14th Street
to provide access to the new bridge and the site; construction of a new northbound off-ramp from
1-75/85 to 17th Street; reconstruction of the 14th Street Bridge to accommodate the new northbound
off-ramp; and intersection improvements along 16th Street, 14th Street, and Northside Drive. The
entire project study area is approximately bounded by Peachtree Street on the east, 14th Street to the
south, Bishop Street to the north, and Northside Drive to the west.
The project also would include operation of a transit shuttle system that would circulate between
the MARTA Arts Center Station and the Atlantic Steel site via exclusive bus lanes that would cross
the proposed 17th Street Bridge and continue along 17th Street through the Atlantic Steel
development. Transit stops would be located throughout the Atlantic Steel site, providing service
within a quarter mile of the highest employment, retail, and residential concentrations. It is
anticipated that a dedicated shuttle bus pull-off would be provided on West Peachtree Street, to allow
passengers direct access to the MARTA Arts Center Station.
1-1
I:\ATLSTEEL\DrmftT6ecrionl.wpd June 2000
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1.2 AGENCY INVOLVEMENT
The U.S. Environmental Protection Agency (EPA) became involved with this project through
its Project XL Program. Project XL, which stands for "excellence and Leadership," encourages
companies and communities to come forward with new approaches that have the potential to
advance environmental goals more effectively and efficiently than have been achieved using
traditional regulatory tools. JAR is participating in Project XL for the Atlantic Steel redevelopment
because neither the 17th Street Extension nor the associated 1-75/85 access ramps would be able to
proceed without the regulatory flexibility being allowed by EPA under its XL Program. The specific
regulatory flexibility includes the consideration of the entire redevelopment project, including the
17* Street Extension, as a Transportation Control Measure (TCM) - (see Section 1.3 for more detail).
EPA, in cooperation with the Federal Highway Administration (FHWA), the Federal Transit
Administration (FTA), Georgia Department of Transportation (GDOT), MARTA, and the City of
Atlanta has prepared this Environmental Assessment (EA) as part of EPA's regulatory decision on
approval of this redevelopment project as a TCM. The EA is also intended to fulfill applicable
National Environmental Policy Act of 1969 (NEPA) requirements associated with other federal
actions on the Project, specifically in order that the transportation components of the project may
become eligible for federal funding. The EA has been prepared hi accordance with NEPA, as
amended; EPA's "Policy and Procedures for Voluntary Preparation of National Environmental
Policy Act Documents" (63 FR 58045), generally following the procedures set out at 40 CFR Part
6, Subparts A through D; and the U.S. Department of Transportation's "Environmental Impact and
Related Procedures" (23 CFR 771). In addition, the EA has been prepared in accordance with
provisions of the Council on Environmental Quality regulations, other NEPA requirements and
policies, and any applicable state and local laws, regulations, and ordinances.
The EA is a summary and culmination of planning efforts associated with the development of
concept alternatives, design traffic study, preliminary engineering analysis, and environmental
impacts assessment, all of which have been completed with opportunities for public comment and
agency coordination, as part of the NEPA process as well as EPA's Project XL.
13 REGULATORY FRAMEWORK
The City of Atlanta is currently out of compliance with federal air quality conformity
requirements because it has failed to demonstrate that its transportation activities will not exacerbate
existing air quality problems or create new air quality problems in the region. The Clean Air Act
(CAA) generally prohibits construction of new transportation projects that use federal funds or
require federal approval in areas where compliance with conformity requirements has lapsed.
However, the CAA includes provisions for the creation of transportation control measures in non-
attainment areas, such as Atlanta. TCMs are defined as "...measures with the purpose of reducing
emissions or concentrations of air pollutants from transportation sources by reducing vehicle use or
1-3
l\ATLSTEEL\Drift2\Sec«ionl.wpd JUDS 2000
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17™ STREET EXTENSION & ATLANTIC STEEL REDEVELOPMENT PROJECT
FULTON COUNTY, GDOT PROJECT NH-7141-00(900)
NEED AND PURPOSE STATEMENT
The proposed redevelopment of the Atlantic Steel site would reduce overall emissions associated with
new development in the Atlanta region by promoting smart growth principles, including brownfield
redevelopment, certain on-site design elements, and the development of transportation infrastructure
that encourages the use of transit and non-motorized modes of travel The 17th Street Extension and
Bridge are a part of the transportation infrastructure that is necessary to support the redevelopment of
the Atlantic Steel site and maintain acceptable overall mobility in Midtown Atlanta.
The project as proposed would accomplish the following:
• Transform a brownfield site into a mixed use community of retail, residential, and commercial
uses that would be more compatible with surrounding land uses
• Incorporate certain site design elements (e.g., residential and employment density, mixed use,
on-site transit proximity, and street connectivity) and transportation infrastructure (e.g.,
sidewalks, bike paths, transit stops) that encourage the use of transit and non-motorized modes
of travel that serve to reduce overall emissions
• Provide a new multi-modal bridge to reconnect the Atlantic Steel site with the urban fabric of
Midtown and serve as a new "Gateway" into the heart of Downtown Atlanta
Reduce congestion and improve traffic flow along 10th and 14th Streets by providing a new east-
west connection across the Downtown Connector
• Provide new mass transit linkage to MARTA Arts Center Station to allow for a high transit
ridership and internal trip capture on-site that would be unattainable in single land use
developments of the size of Atlantic Steel
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EXAMPLE 6-B
MURRAY SMELTER
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Advisory
Council On
Historic
Preservation
The Old Post Office Building
1100 Pennsylvania Avenue, NW, #809
Washington, DC 20004
May 4,2000 ' LvJ'
Mr. Bill Yellowtail U^-PA JtAS Uf.-
Regional Director
Region 8
U.S. Environmental Protection Agency
999 18th Street
Denver, CO 80202-2466
Dear Mr. Yellowtail:
Enclosed is the fully-executed Memorandum of Agreement for the Murray Smelter Site,
including Murray smoke stacks, a historic property eligible for the National Register of Historic
Places. This letter constitutes the Council's additional advisory comments in accordance with 36
CFR Section 800.7(b) of the Council's regulations regarding the manner in which EPA consulted
with the Council and other parties to comply with Section 106 of the National Historic
Preservation Act for this project.
The Council first became acquainted with the Murray smelter site because of complaints by the
Utah State Historic Preservation Officer's (SHPO) staff about EPA's inconsistent and confusing
determinations under the Council's regulations and difficulties gaining basic information about
the project. The SHPO was concerned also because EPA was proceeding with clean-up activities
that were adversely affecting historic properties eligible for the National Register of Historic
Places. Not long after the complaints about EPA, in June 1999, EPA staff initiated formal
consultation with the Council on Superfund activities affecting Murray smoke stacks, which are a
portion of the larger Murray Superfund site and all part of the same Superfund consent decree.
The Council elected to participate in this consultation because of the significant role of the
smoke stacks in Murray's identity as a distinctive community with an important industrial
history and because of the considerable controversy surrounding the proposed demolition.
Preference for stabilizing and cleaning up the historic stacks rather than demolishing them was
voiced by the local community, including the Murray Historic Preservation Board and Utah
Heritage Foundation. Also, wewere concerned about EPA's problems in complying with
Section 106 on the overall Superfund site, including whether EPA had segmented the smoke
stacks from the larger project for the purposes of Section 106 compliance.
The Council believes that meaningful Section 106 consultation with EPA on the Murray smelter
-------
Murray Smelter Smoke Stack Demolition - MOA
Murray Smelter Superfund Site, Utah
MEMORANDUM OF AGREEMENT (MOA)
Among the Environmental Protection Agency,
the Utah State Historic Preservation Officer and
the Advisory Council on Historic Preservation
Regarding the Demolition of the Murray Smelter Smoke Stacks
Murray Smelter Superfund Site, Murray, Utah
WHEREAS, the United States Environmental Protection Agency Region VIII (EPA) has
determined that the demolition of the Murray Smelter smokestacks, which are part of
the Superfund or CERCLA (Comprehensive Environmental Response, Compensation
and Liability Act of 1980) Site, is an adverse impact on the historic structures; and
WHEREAS, the National Historic Preservation Act, 16 U.S.C. §§470_elsegi, has been
identified as an applicable relevant and appropriate requirement (ARAR) pursuant to
the NCP, 40 C.F.R. § 300.415; and
WHEREAS, EPA has consulted with the Utah State Historic Preservation Officer
(SHPO) and the Advisory Council on Historic Preservation (Council) pursuant to Section
106 of the National Historic Preservation Act (NHPA) (26 U.S.C. 470) and implementing
regulations 36 CFR 800; and
WHEREAS, Murray City (local government), Hi-Ute-Buehner (responsible party),
Chimney Ridge L.L.C. (developer and current landowner), Murray Historic Preservation
Board (Board), Asarco (CERCLA responsible party), and interested public have
participated in the consultation regarding the terms of this agreement;
NOW THEREFORE, the EPA, the SHPO, and the Council agree that the undertaking
shall be implemented in accordance with following stipulations in order to mitigate the
effect of the undertaking on historic properties.
Stipulations
EPA will ensure the following measures are carried out:
1) The diameter of the base and the height of the oven door (or smokestack
archway) of the taller (north) stack will be incorporated into the architecture of the
- piaza area or other area dt the developrnent;~Other characteristics of either
smokestack may also be used in the development.
Page 1 of 5
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Murray Smelter Smoke Stack Demolition - MOA
Murray Smelter Superfund Site, Utah
2) At least three plaques will be placed in the development. The plaques will
interpret the smokestack details used in the plaza under stipulation 1 above or will
commemorate the history of the smelter. The plaques will be bronze (estimated at
$4,000 each), unless the Board representative identified in stipulation 3 below agrees
that another material, as proposed by the Chimney Ridge L.L.C., is appropriate.
3) A citizen representative of the Board will be involved in the development
of plaza details under stipulation 1 and the drafting and placement of the interpretive
signs under number stipulation 2 above. The representative will be a citizen member
of the Board to be selected by the Board with input from Chimney Ridge L.L.C. The
role of the representative will be advisory and will relate only to the work done for
stipulations 1 and 2.
4) The results of intensive level surveys completed under direction of
Chimney Ridge L.L.C. for several buildings that were located in the area of the planned
development will be provided to the Board. The surveys and any accompanying report
will be provided to the Board by May 1, 2000.
5) Asarco will provide the Board a copy of the report prepared by an
archeologist on activities completed during the remediation of the entire Superfund site.
The report will be provided to the Board by Asarco by May 1, 2000. The report will
likely include drawings and photographs that were completed by an archeologist during
the remediation of the Superfund site. Asarco has already provided the Board
materials in Asarco's possession that relate to the design, operation, and role for the
smelter for the Board's use in the preservation of the smelter history.
6) Hi-Ute-Buehner will provide a total of $89,500 to Murray City for use in
supporting the development of an educational video, models, development of museum
exhibit(s), and miscellaneous items related to the smokestacks and the Murray smelter
(smelter). Hi-Ute Buehner shall provide payment full amount to Murray City by May 1,
2000. The Board will determine the distribution of the funds among the various
activities and how the activities will be implemented. The funds will be used for the
activities described below:
(a) support the development of a short (20 to 30 minute) video about the
smelter which is currently in production under Murray City oversight;
(b) development of a permanent table top model depicting the smelter,
Page 2 of 5
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Murray Smelter Smoke Stack Demolition - MOA
Murray Smelter Superfund Site, Utah
(c) development of a portable hands-on model which illustrates the
changes in the smelter site from prior to 1870 to the present day;
(d) establishment of a smelter exhibit in a museum or location to be
determined by the Board or Murray City; and
(e) development of a brochure that illustrates the locations, physical
descriptions, and processes of smelter operations.
Each of the activities may be funded in whole or in part until the funds have been
expended. If all the activities have been funded and there is still money left, it
can be used to purchase, preserve, or renovate a historic building that will house
smelter related displays or artifacts.
7) Murray City will provide appropriate accounting for the expenditure of the funds
provided by Hi-Ute Buehner. Beginning on May 1, 2001, Murray will provide to
EPA an annual report describing the expenditure of the funds. A final report is
due six months after the last funds are expended and should include a full
accounting of all expenditures, as well as an audit by an independent auditing
firm. Murray City is responsible for ensuring that the funds are spent on the
specified activities. Hi-Ute Buehner has met its obligations under stipulation 6 by
providing the funding required to Murray City. Misuse of the funds does not
impact the fulfilment of said obligation. Murray City will also provide the Council
and the SHPO copies of the above reports.
8) If Chimney Ridge L.L.C. decides to sell the property before developing it,
Chimney Ridge L. L. C. will place a deed restriction on the property requiring
future development to include the requirements of Stipulations 1 and 2.
9) Chimney Ridge, L.L.C. agrees that if it builds an office complex on the Murray
Smelter Site, it will allow, at no cost to the other parties, exhibit of smelter history
materials in the lobby of the office complex. Chimney Ridge, L.L.C. shall
determine the quantity of artifacts, display design, and layout of the materials.
Dispute Resolution
If the SHPO or the Council object within 15 days to any actions proposed pursuant to
the MOA, the EPA shall consult with the objecting party to resolve the objection. If the
EPA determines the objection cannot be resolved, the EPA shall request the further
comments of the Council orSHPO^nd^forward documentationTetevant to the objection
to the other parties. Within 30 days after receipt of all pertinent documentation, the
Council or the SHPO will either: 1) provide the EPA with recommendations, which the
Page 3 of 5
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Murray Smelter Smoke Stack Demolition - MOA
Murray Smelter Superfund Site, Utah
EPA shall take into account in reaching a final decision regarding the objection; or 2)
notify the EPA that it will comment pursuant to 36 CFR 800.7 with reference only to the
subject of the objection.
If at any time during the implementation of the measures stipulated in this MOA, an
objection is raised by a member of the public, the EPA shall take the objection into
account and consult as needed with the objecting party, the Board, Murray City, the
SHPO, and the Council in an attempt to resolve the objection.
Amendment
Any party to this MOA may propose to the other parties that it be amended, whereupon
the parties will consult in accordance with 36 CFR Part 800.6 (c)(7) to consider such an
amendment.
Termination
Any of the consulting parties to this MOA may terminate it by providing thirty (30) days
notice to the other parties, provided that the parties will consult during the period prior to
termination to seek agreement on amendments or other actions that will avoid
termination. In the event of termination, EPA, in consultation with the Council and the
SHPO, will determine how to implement EPA's responsibilities under Section 106 in a
manner consistent with applicable provisions of 36 CFR Part 800.
Execution of this MOA by the EPA, the SHPO, and the Council, and implementation
of its terms evidences that EPA has afforded the Council an opportunity to comment on
the proposed project and its effect on the historic nature of the smoke stacks, that EPA
has taken into account the effects of the undertaking on the historic properties, and is
appropriately implementing the requirements of Section 106 of NHPA.
Consulting Parties:
Environmental Protection Agency, Region VIII
Ry
Max H. Dodson, Assistant Regional Administrator Date
Ecosystems Protectionland Remediation
Page 4 of 5
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Murray Smelter Smoke Stack Demolition - MOA
Murray Smelter Superfund Site, Utah
Utah State Historic Preservation Officer
By:
Wilson G. Martin, Deputy
State Historic Preservation Office
Advisory Council on Historic Preservation
By:
John Fowler, Executive Director
Advisory Council on Historic Preservation
Date'
Concurring Parties:
By:
Chimney Ridge LL.C.
Date
Page 5 of 5
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EXAMPLE 6-C
ROEBLING STEEL
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Ib=k3e: LtotfH K
-------
JUN-0Y-
-------
JUIN—\a(-t2awa ib-oo i_ocri-i K^ ucrr ornrn-o
3
NJSHPO for review and comment with respect to historic considerations. If the NJSHPO does
not comment within 30 days of receipt of the design plans, the USEPA will assume NJSHPO
concurrence with the plans.
7. The USEPA shall identify significant historic equipment and artifacts associated with the site.
These pieces of equipment and artifacts shall be appropriately decontaminated and stored in a
secure building on-site. Decontamination will be undertaken with emphasis on treatment
methods that will achieve appropriate cleanup standards and meet Standard 7 to the maximum
extent practicable. The following equipment shall remain in place if it is feasible to do so
without damaging the equipment during remediation: the prestressing machinery, tools, and
equipment in Buildings 92 and 93, sample sections of the connecting rail track, the freight
elevator in Building 16, and an appropriate portion of the remaining Morgan wire-rod rolling
mill in Building 86. The aforementioned list of equipment and artifacts shall be submitted to the
NJSHPO for review. If the NJSHPO does not provide comments within 30 days of receipt of
the list, the USEPA will assume NJSHPO concurrence with the list.
8. The USEPA shall identify a qualified repository or repositories to house Historic Records
including architectural and engineering drawings, maps, historic papers, pamphlets, and
photographs that contain information about the construction of the buildings, the manufacturing
process and products, and the administration of the plant. The repository shall have as part of
its mission, the preservation and dissemination of information on industrial sites in the United
States. Furthermore, the repository shall have in place curation methods for the records (in
accordance with 36 CFR 79) and means for the public and scholars to access these records.
9. The USEPA has prepared Recommended Preservation Guidelines for those buildings that are
not demolished, and for selected equipment and artifacts that remain at the site. The guidelines
will be applicable to future use and new construction. They will become effective after the
completion of the remedial action, and will be implementable by the future owner(s) of the Site.
These guidelines are included as Attachment C to this Agreement.
10. The USEPA has initiated a program of community relations activities at the Site in association
with its Superfund action (a list of these activities is included as Attachment D to this
Agreement). As part of a continuing public outreach effort, the USEPA shall make available to
the NJSHPO, local historical societies, and other prospective users, the HAER documentation
and other cultural resources-related studies completed as part of the USEPA's Superfund action.
Continuing public education and outreach programs, will include assistance in the development
of an on-site museum (see Stipulation 6). As part of its public education effort, the USEPA will
continue to provide site access to individuals interested in preparing oral histories of their
experiences working at the Roebling steel facility, and in using these histories as part of public
outreach programs. Further, the USEPA will continue to provide site access and assistance to
individuals for purposes related to the development of appropriate projects on the industrial,
architectural, and cultural history of the site. The USEPA and the NJSHPO will assist local
historical organizations in the dissemination of the resulting materials and publications to the
local community and statewide.
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USCTH n^. ucrr orm-irc
OBJECTIONS, AMENDMENTS, AND DISPUTE RESOLUTION
1. Should the NJSHPO or other signatory to this Agreement object within thirty (30) days to any
action proposed pursuant to this agreement, USEPA shall consult with the objecting party to
resolve the objection. If the USEPA determines that the objection cannot be resolved, the
USEPA shall request the further comments of the Council pursuant to 36 CFR 800.6(b). Any
Council comment provided in response will be taken into account by the USEPA in accordance
with 36 CFR 800.6(c)(2) with reference only to the subject of the dispute; the USEPA's
responsibility to carry out all actions under this agreement that are not the subjects of this dispute
will remain unchanged.
2. Any party to this Agreement may propose to the other parties that it be amended, whereupon the
parties will consult in accordance with 36 CFR 800.5(e) to consider such an amendment.
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lb=m UbtTH K^ IJtrr srnrire j. <-j.«: oor orrx
5
Execution of this Memorandum of Agreement by the USEPA and NJSHPO, its subsequent
acceptance by the ACHP, and implementation of its terms is evidence that USEPA has afforded the
ACHP an opportunity to comment on the Project and its effects on historic properties, and that the
USEPA has taken into account the effect of the undertaking on historic properties.
ENVIRONMENTAL PROTECTION AGENCY
By: . . Date:_
NEW JERSEY HISTORIC PRESERVATION OFFICE (SHPO)
By: ' Date:
Dorothy P. Guzzo, Deputy State Historic Preservation Officer
ADVISORY COUNCIL ON HISTORIC PRESERVATION
By: ' ' Date:
ROEBLING HISTORICAL SOCIETY
By: • ' : • .__ Date:.
FLORENCE TOWNSHIP, NEW JERSEY
By: . • . • v Date:
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onuiru
RECOMMENDED
HISTORIC PRESERVATION GUIDELINES
XI. RATIONALE
The proposed remedial action will result in an adverse effect on the National Register-
eligible Roebling Steel Company Site; that is the demolition of the Type A buildings, the
removal and loss of potentially significant historic artifacts throughout the Site, and potential
damage to Type B and C buildings and significant site features as a result of the remediation
process. Various mitigation measures have been incorporated into a Memorandum of
Agreement between the U.S. Environmental Protection Agency and the New Jersey Historic
Preservation Officer for the Site. Among these measures is the development of the
Recommended Preservation Guidelines; These guidelines are applicable to future use of the
remaining buildings and new construction, and will become effective upon completion of the
remedial action. It is anticipated that implementation of these guidelines will be the
responsibility of the future owner(s) of the Site.
11. RECOMMENDED GUIDELINES
A. All future site development and reuse should comply with the Secretary of the
Interior's Standards for the Treatment oj'Historic Properties (1995). This document,
with its associated terminology, is considered to be an integral part of these
guidelines. Key and contributing buildings and historic site features should be
treated as follows: key buildings should be designated for preservation and
rehabi litation for compatible uses in any proposed redevelopment plans. Demolition
of key buildings should be avoided if feasible. Key buildings, contributing buildings,
and historic site features should have a high priority for preservation and
rehabilitation for compatible new uses in any proposed redevelopment plan.
Demolition of contributing buildings should be avoided, unless it is determined and
documented that they are structurally unsound or inappropriate for adaptive reuse.
Demolition of non-contributing buildings would be permissible.
B. The standards recognize a number of aspects of the treatment of historic properties,
including preservation, rehabilitation, and new construction.
1. Preservation - All interim work prior to the full rehabilitation of buildings,
structures, significant site features, and selected equipment and artifacts
should comply with the Secretary of the Interior's Standards for the
Treatment of Historic Properties (1995). Additionally, prior to undertaking
work on any buildings or site features, a Preservation Plan, following the
guidelines detailed in "Historic Structure Reports and Preservation Plans:
Planning Documents for Historic Properties" (New Jersey State Historic
-------
Preservation Office, 1997), should be developed and shall provide the basis
for the proposed work.
2. Rehabilitation - All rehabilitation and redevelopment activities should follow
the Secretary of the Interior's Standards for the Treatment of Historic
Properties (1995) to preserve those portions and features of the complex
which convey its historic, cultural, and architectural values. Any
rehabilitation proposed for B and C buildings should be for compatible new
uses that allow the buildings to retain their historic character. Additional ly,
prior to undertaking work on any B and C buildings or significant site
features, a Rehabilitation Plan for Preservation should be developed that shall
provide the basis for the proposed work.
3. New Construction - The construction of additions, new buildings, and hew
site features should comply with the Secretary of the Interior's Standards for
the Treatment of Historic Properties (\W5\ Rehabilitation Standard 9: "New
additions, exterior alterations or related new construction will not destroy
historic materials, features and spatial relationships that characterize the
property. The new work will be differentiated from the old and will be
compatible with the historic materials, features, size, scale and proportion,
and massing to protect the integrity of the property and its environment;" and
with the Secretary of the Interior's Standards for the Treatment of Historic
Properties (1995), Standard 10: "New additions and adjacent or related new
construction will be undertaken in such a manner that, if removed in the
future, the essential form and integrity of the historic property and its
environment would be unimpaired."
The design of preservation, rehabilitation, and new construction work should
maintain the district's historic industrial character and ensure its uniformity despite
varied uses. New safety features and appropriate design treatments would be
permissible.
1. Buildings
Windows - Wherever possible, existing historic windows should be retained
and rehabi litated, including lintels and bluestone sills. Replacement windows
and alterations for energy efficiency should be compatible with the historic
windows in design and materials.
Doors - Wherever possible, existing historic doors should be retained and
rehabilitated. Replacement doors and alterations for safety and egress
requirements should be compatible with the historic character of the
buildings.
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lb=kJD - LKDtrH K* vcrr ornriro
Masonry - Surfaces should be cleaned with appropriate low-pressure washing
techniques to avoid damage; high pressure washing (over 500 psi) and
sandblasting should be prohibited. Replacement masonry should be
compatible with the original in size, color, and texture. Repointing should
match the original in color, porosity, strength, elasticity, texture, and tooling.
Masonry should not be painted or stuccoed unless originally so treated.
Exterior Details - Historic hardware, light fixtures, cast iron, sheet metals,
and slate roofing should be rehabilitated where possible. Replacement
components should be compatible with the original design and materials^
Interior Spaces and Details - Reuse of significant interior spaces should
preserve their original design, scale, and detailing, as, for example, in
Buildings 6,16, and 21. Significant industrial features such as timber and
steel framing, railings, lighting, cranes, and belt drive or other integral
machinery, should be preserved in-situ.
Paint - New paint colors and finishes on exterior wood or metal and
significant interior details should replicate the original or use historically
appropriate treatments.
Signage - Historic signage should be preserved. The design, scale and color
of new signage should harmonize with the site's historic industrial
architecture.
2. Structures, Millvards. and Site Components
Structures - Water towers, yard cranes, and flag pole should be preserved 'in-
situ.
Millyards - Key areas reflecting the historic character of the complex, such
as the entrance road east of the Main Gate House paved with Belgian block,
should be retained as open space and an extension of the Main Gate House.
Roads - Redevelopment of the complex should be compatible with the site's
historic transportation patterns and relationship to the Delaware River and the
adj acent Village. Major road ways should be preserved.
Paving - Belgian block paving should be retained and incorporated with new
site improvements. Asphalt should be removed from the Belgian block
paving wherever possible.
Lighting and Outdoor Furniture - Historic exterior lighting should be
preserved wherever possible. New streetlights, exterior lighting, and outdoor
-------
O UI1~KJ f —
4
furniture should be compatible with the district's historic industrial character.
Parking - Parking areas and garages should be compatible in location, scale,
design, and materials with the historic character of the complex.
III. INSTITUTIONAL CONTROLS
The appropriate body within the local governmental framework should put into place
institutional controls to ensure the implementation of the following procedures:
A. Preservation Guidelines - All interim and redevelopment work should follow the
above Preservation Guidelines to promote the preservation and adaptive re-use of
the remaining buildings and the overall historic site context.
B. Review of Proposed Redevelopment - All plans for the preservation and
rehabilitation of the buildings and the redevelopment of the overall Site should be
reviewed by the New Jersey State Historic Preservation Officer.
C. Consultation with Relevant Parties - Any proposals for redevelopment of the
complex and conversion of the buildings to new uses should be developed in
consultation with Florence Township, the Roebling Historical Society, and the
residents of the Roebling Village Historic District.
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f— tXKXi J.D-KJO
ATTACHMENT D
COMMUNITY RELATIONS ACTIVITIES
Fact sheets and Updates:
March 1989 Superfund Update - EPA to Conduct Investigation of Roebling Steel Site
December 1990 Facts - EPA to Conduct Removal and Remedial Actions at the Roebling
Steel Superfund Site.
January 1990 Superfund Update - EPA Invites Public comment on Interim Action.
January 1990 Superfund Update - Proposed Plan.
November 1991 Superfund Update.
August 1992 Superfund Update. .
August 1994 Superfund Update.
September 1995 Superfund Update.
July 1996 Superfund Update. i
October 1998 Superfund Update.
Public Meetings an d Availability Sessions:
Public meeting on March 21,1989, availability session on March 22,1989.
Public meeting on January 18,1990.
Public meeting on July 25,1991.
• Public availability session in August 1992.
Town council meeting in September 1995.
Public meeting in September 1995.
Press conference with Carol Browner & Senator Lautenberg in September 1995.
« Public meeting in July 1996.
National Park Service (NPS) public meeting on historic preservation activities in August
1997.
Other Public Related Activities:
Provided access for an artist commissioned by the NJ State Council on the Arts in August
1993.
Sampled Mansfield Township residents' private wells in April 1995.
Site visit with NJDOH, ATSDR, and BCHD in November 1995.
f Coordination with BCHD to perform community lead screening in January 1990,
April 1995, September 1995.
Site tours for township officials and prospective purchasers occur frequently, with the
first request in April 1997.
• Site meeting with the local officials, Roebling Historical Society (RHS) and State
Historic Preservation Officer (SHPO) in October 1998.
• Site visit with the RHS to select relevant equipment and artifacts for the future museum,
which took place in October 1998.
.« Site tour for all members of the RHS took place in December 1998.
Provided site-related documents and site visits for students from University of Virginia
School of Architecture in February 1997 and January 1999.
TOTftL P.19
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EXAMPLE 6-D
AMBER MILLING
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MEMORANDUM OF AGREEMENT
AMONG THE ADVISORY COUNCIL ON HISTORIC PRESERVATION,
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AND
THE PENNSYLVANIA STATE HISTORIC PRESERVATION OFFICE
Harvest States Cooperatives/Amber Milling Company Division and
Lackawanna County Railroad Authority
Proposed Flour Milling Facility, Monroe County, PA
WHEREAS, Harvest States Cooperatives/Amber Milling Company Division and the
Lackawanna County Railroad Authority (the Project Sponsors), have applied to the Pennsylvania
Department of Environmental Protection (PaDEP) for anNPDES Permit, which has been issued
as PA S10S042, pursuant to the Pennsylvania Clean Streams Law, 35 P.S. §§691.1 etseg. and
Section 402 of the Federal Clean Water Act, 33 U.S.C. §1342, for stormwater discharges
associated with the construction and operation of a proposed Flour Milling Facility in ML
Pocono Borough and Pocono, Coolbaugh, and Tobyhanna Townships, Monroe County,
Pennsylvania (the Amber Milling Project or the Undertaking), the terms and conditions of which
NPDES Permit are incorporated herein by reference;
WHEREAS, PaDEP is responsible for the issuance of NPDES permits under a delegation
from the U.S. Environmental Protection Agency, pursuant to Section 402(b) of the Federal Clean
Water Act, 33 U.S.C. §1342(b);
WHEREAS, the United States Environmental Protection Agency (EPA), in consultation
with the Pennsylvania State Historic Preservation Officer (SHPO) has determined that the Amber
Milling Project will have an effect upon the Pocono Manor Historic District (Historic District), a
district included in the National Register of Historic Places (Register), and the Lackawanna,
Delaware & Western Railroad, a property eligible for inclusion in the Register, pursuant to 36
CPU. Part 800, regulations implementing Section 106 of the National Historic Preservation Act
(16 U.S.C. §470f);
WHEREAS, the Project Sponsors have developed and submitted to EPA and the SHPO
two reports prepared by Carter van Dyke Associates, entitled Visual and Historic Impact of
Proposed Mill and Mitigation Plan for the Proposed Mill (collectively, the Mitigation Plan), and
hi response to the Mitigation Plan, the SHPO raised concerns which were subsequently
addressed, and the SHPO has determined that the Mitigation Plan is adequate and addresses the
concerns of the SHPO with respect to potential impacts of the Amber Milling Project on the
Historic District;
WHEREAS, by letter dated April 14,1997, and in accordance with 36 C.F.R. §800.5(e),
EPA advised the SHPO that, after consulting with the SHPO and after considering the views of
interested persons, EPA has found-that the Amber -Milling Project will have^n adverse effect on
the Historic District, and the EPA requested consultation with the SHPO regarding ways to avoid
or reduce the effects on the Historic District;
-------
Harvest States Cooperatives/Amber Milling Company Division
and Lackawanna County Railroad Authority
Proposed Flour Milling Facility, Monroe County, PA
MEMORANDUM OF AGREEMENT
AMONG THE ADVISORY COUNCIL ON HISTORIC PRESERVATION,
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AND
THE PENNSYLVANIA STATE HISTORIC PRESERVATION OFFICE
WHEREAS, pursuant to 36 C.F.R. §800.5(e), EPA notified and invited all identified and
appropriate interested parties, including the Permit applicants, the SHPO, and others entities, to
participate in the consultation process;
WHEREAS, the documentation required by 36 C.F.R. §800.8(b)(l)-(4) has been prepared
including a report entitled "Section 106 Analysis of Criteria of Effect and Adverse Effect, and
Proposed Mitigation Measures" and associated Exhibits; and
WHEREAS, PaDEP, the County of Monroe, Harvest States Cooperatives, the
Lackawanna County Railroad Authority, Mount Pocono Borough, and Ireland Hotels, Inc. (d/b/a
Pocono Manor Inn and Golf Resort) participated in the consultation process; and those parties
(including PaDEP, Harvest States Cooperatives, and the Lackawanna County Railroad
Authority) who are committed to implement actions pursuant to the "Stipulations" set forth
below have concurred in this Memorandum of Agreement;
NOW, THEREFORE, the Advisory Council, EPA and the Pennsylvania SHPO agree that
the Undertaking shall be implemented in accordance with the following stipulations in order to
take into account the effect of the undertaking on historic properties.
Stipulations
EPA and the SHPO will ensure that the following measures are carried out:
1. By signing this Memorandum of Agreement, intending to be legally bound, the Project
Sponsors agree to the following:
(a) Harvest States Cooperatives shall construct and maintain all building structures of
the Amber Milling Project which may be viewed above the treeline in a color to
be determined by the Harvest States Cooperatives' historic/landscape architect
consultant, in consultation with the SHPO. The SHPO shall review and approve
this determination as well as the Undertaking's final design plans. The roofing
material and leg tower shall be painted to match the chosen final concrete color.
(b) In order to limit the generation and propagation of noise from the Amber Milling
"r"~ ~ Project, Harvest States; Cooperatives shall implement the design elements and
operating practices described in the Visual and Historic Impact of Proposed Mil
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Harvest States Cooperatives/Amber Milling Company Division
and Lackawanna County Railroad Authority
Proposed Flour Milling Facility, Monroe County, PA
MEMORANDUM OF AGREEMENT
AMONG THE ADVISORY COUNCIL ON HISTORIC PRESERVATION,
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AND
THE PENNSYLVANIA STATE HISTORIC PRESERVATION OFFICE
prepared by Carter van Dyke Associates, including (1) the conduct of material
load and off-loading activities within enclosed structures; and (2) the installation
and use, to the maximum extent practicable, of an hydraulic progressioner for
movement of rail car units within the site. Harvest States Cooperatives shall
operate the Amber Milling Project in compliance with all applicable local noise
control ordinances.
(c) To the maximum extent feasible, the Project Sponsors shall install outdoor lights
below 40 feet above ground level, and shall (as necessary) direct such lighting and
provide shades, deflectors and buffers to minimize propagation at night of
illumination and glare in the direction of the Historic District The SHPO shall
have the authority to review and approve the Project Sponsors' determination in
this regard.
(d) The Project Sponsors shall cooperate with the County of Monroe, the Monroe
County Historical Society, and other interested parties in the development,
printing and distribution of an interpretative flyer/brochure with respect to the
historic development of Pocono Manor, including the historic character of the
railroad and other area enterprises, in the development of the Poconos and area
industries, as described in the Mitigation Plan; and Harvest States Cooperatives
(on behalf of the Project Sponsors) shall commit funding of up to $10,000 for the
initial development, printing and distribution of such interpretative flyer/brochure.
The text and layout of the brochure shall be reviewed and approved by the SHPO.
(e) Harvest States Cooperatives shall construct and maintain the building structures
and install and operate the milling facility equipment in accordance with the fire
safety designs approved by the Pennsylvania Department of Labor and Industry
and in accordance with the good operating and housekeeping practices required
for a food processing facility. Such designs and operating practices shall include
the following elements:
(i) Installation of a sophisticated dust collection and filtration system.
-------
Harvest States Cooperatives/Amber Milling Company Division
and Lackawanna County Railroad Authority
Proposed Flour Milling Facility, Monroe County, PA
MEMORANDUM OF AGREEMENT
AMONG THE ADVISORY COUNCIL ON HISTORIC PRESERVATION,
THE UNITED STATES ENVmONMENTAL PROTECTION AGENCY AND
THE PENNSYLVANIA STATE HISTORIC PRESERVATION OFFICE
(ii) Maintenance of high standards of housekeeping required for a food
processing facility in order to minimize dust accumulation on horizontal
surfaces.
(iii) Ongoing inspection of the facility to assure avoidance of dust
accumulations.
(iv) Construction of all major building elements using reinforced concrete or
steel construction.
(v) Use on Conveyor systems of plastic buckets and other materials that are
not prone to generate sparks.
(vi) Installation on conveyor systems are of alignment sensors to assure proper
belt alignment, tied to a central computer processor capable of triggering
shutdown of the conveyor in the event of misalignment.
(vii) Installation on conveyor systems of heat sensors on all metal bearings,
which through the central computer processors will trigger a conveyor
shutdown if bearing heat increases beyond tolerance limits.
(viii) Equipping of the facility with a full sprinkler system.
(xi) Installation of on-site storage tank, holding 250,000 gallons of water, or
alternatively an adequate supply of water from a public utility, sufficient
to provide pressure and fire control water supply.
(x) Installation of high-level blowout panels at the top of buildings to safely
dissipate any explosive/compressive events.
2. The Project Sponsors shall, upon request by the SHPO, prepare a report on all activities
carried out pursuant to Stipulation 1 of this Memorandum of Agreement, and shall
provide a copy of such report to the Advisory Council, EPA, and, upon request, to other
interested parties.
-------
Harvest States Cooperatives/Amber Milling Company Division
and Lackawanna County Railroad Authority
Proposed Flour Milling Facility, Monroe County, PA
MEMORANDUM OF AGREEMENT
AMONG THE ADVISORY COUNCIL ON HISTORIC PRESERVATION,
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AND
THE PENNSYLVANIA STATE HISTORIC PRESERVATION OFFICE
3. If stipulations l(a) through l(e) above have not been implemented by July 1, 1999, the
Advisory Council, EPA and the SHPO shall review implementation of the terms of this
Memorandum of Agreement and determine whether revisions are needed. If revisions are
needed, the parties to this Agreement shall consult hi accordance with 36 C.F.R. Part 800
to make such revisions.
4. Dispute Resolution. Should the SHPO object within seven (7) days to any plans
submitted for SHPO review pursuant to this agreement, EPA shall consult with the SHPO
to resolve the objection. If EPA determines that the objection cannot be resolved, EPA
shall request further comments of the Council pursuant to 36 C.F.R. § 800.6(b). Any
Council comment provided in response to such a request shall be taken into account by
EPA in accordance with 36 C.F.R. § 800.6(c)(2) with a reference only to the subject of
the dispute; EPA's responsibility to carry out all actions under this agreement that are not
the subjects of the dispute will remain unchanged.
Execution of this Memorandum of Agreement by the Advisory Council, EPA and the
Pennsylvania SHPO, and implementation of its terms, evidence that EPA has afforded the
Council an opportunity to comment on the Amber Milling Project and its effects on historic
properties, and that EPA has taken into account the effects of the Undertaking on historic
properties.
ADVISORY COUNCIL ON HISTORIC PRESERVATION
Date:
Name:
Title:
g/P/f?
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
.Name:
Title:
\J
Date: 8-7-97
-------
Harvest States Cooperatives/Amber Milling Company Division
and Lackawanna County Railroad Authority
Proposed Flour Milling Facility, Monroe County, PA
MEMORANDUM OF AGREEMENT
AMONG THE ADVISORY COUNCIL ON HISTORIC PRESERVATION,
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AND
THE PENNSYLVANIA STATE HISTORIC PRESERVATION OFFICE
PENNSYLVANIA STATE HISTORIC PRESERVATION OFFICER
By: /W Ur «T, 1 9? 7
Name: "13 .TiM.orrvy /
Title: ATTORNI*/ ,NJ F/
LACKAWANNA COUNTY RAILROAD AUTHORITY
. <*( ni&iRjL
By. <* n&jLuL COz^^ _ Date: Ao
-------
snui Lu2&cwvBBft County suii
PiuputMl Jloar Malay TacSBsy, Moore* Ca«arty, PA
MEMORANDUM OF AGREEMENT
AMONG THE ADVISORY COUNCIL ON HISTORIC PRESERVATION,
THE UNllSil* STATES ENVIRONMENTAL PROTECTION AGENCY AND
THE PENNSYLVANIA OTATB HISTORIC PRESERVATION OFFICE
3. If stipulation* t(a) through. l(e) above fcave aotbeea nnpfementedby- July I, 1999,. the
Advisory Council, EPA rod the SHPO ahafficwicwrmpfcmentatiQnoflhetcrmaoftfais
Memoiandam; of Agreement and dietaimfBftwfaeitoievialloosacsfleeded. IfrevMoosare
necded,t&cpatic3tDtMsAgrccmait^alIconsuttmaccordaiicc^^
ft^ nmlnffc qm*?%~ -
DTspctelteoIutfott. ShqpJ'i^*'^ SHPQ ntjJectiwttfein a«ren:(7) daygtn any plans
sfBErajuestfurtliercommfinlsoftiieCbandlpursaai^ Aojr
Cbufflcilconnnentnrovidied5a;ic^onactD sndi areqaest shaft be talma into account by
accordance witft36CFJL f 80(X6Cc)C2) wife.ftida.euM: only to fee subject: of
*!y: TKnvwrihiHty to eMi'fy fmt alt actiffflff T^TTdT thf ft ^girfflTtPTt tftgt arc DCt
tbc subjects of t£e dilate vrflIitxaam.i}ndKn>g!Qd.
Etecutibn. of this Manoiandom. of ^A5rccmcntljytf»-A^3hdsoiyCouncfl,EPAand.li3c
anrf {mplip*ti»*itgtfi>n nf ^g terma, CTrdence tfaa^FPA TtB^aflnnfeJ ifafe
art f>^p« ii n mity tn farmment- on ifae AmberMiIImg^Piojectand.it3 efiecls onMstoric
lfff^
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Harvest State* Coopemrva/Amber Milling Company Division
and Lackawanna Coo&ty Railroad Authority
Proposed Hour Milling Facility, Monroe County, PA
MEMORANDUM OF AGREEMENT
AMONG THE ADVISORY COUNCIL ON HISTORIC PRESERVATION.
THE "UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AND
THE PENNSYLVANIA STATE HISTORIC PRESERVATION OFFICE
4. Dispute Resolution. Should the SKPO object within seven (7) days to any plans
submitted, for SHPO review pursuant to this agreement, EPA, shall consult with the SHPO
to resolve the objection. If EPA determines that the objection cannot be resolved, EPA
shall request further comments of the Council pursuant to 36 C.F.R. § S00.6(b). Any
Council comment provided in response to such a request shall be taken into account by
EPA in accordance with 36 C.FJR- § 800.6(c)(2) with a reference only to the subject of
the dispute; EPA's responsibility to carry out all actions under this agreement that are not
the subjects of the dispute will remain unchanged.
Execution of this Memorandum of Agreement by the Advisory Council, EPA and the
Pennsylvania SHPO, and implementation of its terms, evidence that EPA has afforded the Council
an opportunity to comment en the Amber Milling Project and its effects en historic properties,
and that EPA has taken into account the eSects of the Undertaking on historic properties.
ADVISORY COUNCIL ON HISTORIC PRESERVATION"
Date:
Name:
Title:
UNTIED STATES ENVIRONMENTAL PROTECTION AGENCY
Br/ULC..Uf//^^y_iiV\ Date: 8-7-97
Name: J2ir B J
Title: e&SiCfcJ ST
PENNSYLVANIA STATE HISTORIC PRESERVATION OFFICER
Date:
Name:
-Title: -
€t:.Tv
-------
Coooty BaOraad Aat
MEMORANDUM OF AGREEMENT
AMONG THE ADVISORY COUNCIL OPT HISTORIC PRSSZRVATIOZV,
THE UNATJBU STATES ETTVTRONMETTAI, PROTECTION AGENCY AND
THE PENNSYLVANIA STATE HISTORIC PRESESVAHWf OFFICE
PENNSYLVANIA STATE HISTORIC PRESERVATION OFFICER
By._Tj/Ufc
-------
Power of Attorney
Know All Men By These Presents,
I, Garry A. Pistoria, as the Group Vice President of HARVEST STATES
COOPERATIVES, a Minnesota cooperative association ("Harvest States"), and as President of
Harvest States Cooperatives/Amber Milling Company Division, having the appropriate authority
to bind Harvest States, and to make such appointments, has made, constituted and appointed, and
by these presents does make, constitute and appoint R. Timothy Weston, 240 North Third Street,
Hanisburg, PA 17101-1507, my true and lawful Attorney, for me and in my name, place and
stead, to execute, as fully as I could do if personally present in the name of Harvest States to
execute and deliver, as fully as I could do if personally present, that Memorandum of Agreement
Among the Advisory Council on Historic Preservation, the United States Environmental
Protection Agency and the Pennsylvania State Historic Preservation Office related to the Harvest
States Cooperatives/Amber Milling Company Division and Lackawanna County Railroad
Authority Proposed Flour Milling Facility, Monroe County, PA, and I do hereby ratify-and
confirm whatsoever my said attorney shall lawfully do or cause to be done by virtue hereof.
This Special Power of Attorney shall continue in force and may be accepted and relied
upon by any person to whom it is presented, despite my purported revocation of it or my death,
until actual written notice of such revocation or death is received by such person.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 7th
day of August, 1997.
ATTEST: HARVESTSTATES COOPERATIVES
/Assistant Secretary Garry A
Group Vice President, Harvest States Cooperatives
President, Harvest States Cooperatives/ Amber
Milling Company Division
-------
ACKNOWLEDGEMENT
STATE OF MINNESOTA :
COUNTY OF RAMSEY :
On this the _L_ day of August, 1997, before me, a Notary Public, the undersigned officer,
personally appeared Gany A. Pistoria, who acknowledged himself to be the Group Vice President
of Harvest States Cooperatives, a Minnesota cooperative association, and the President of
Harvest States Cooperatives/Amber Milling Company Division and that he as such Group Vice
President of Harvest States Cooperatives and as President of Harvest States Cooperatives/Amber
Milling Company Division, being authorized to do so, executed the foregoing Special Power of
Attorney, for the purposes therein contained by signing his name as Group Vice President of
Harvest States Cooperatives and President of Harvest States Cooperatives/Amber Milling
Company Division.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
«/.
Notary Public
ESTHER I. LONGSETH
NOTARY PUBLIC ~ MINNESOTA
'S'WASHINGTON COUNTY ,
My Comm. Expires Jan. 31.2000"
VWWVWVWWVVWWWWVWWW
HA-O927.01
-------
Power of Attorney
Know All Men By These Presents,
I, Lawrence C. Malski, as the Executive Director of the Lackawanna County Railroad
Authority (the "Authority"), a Pennsylvania municipal authority, having the appropriate
authority to bind the Authority, and to make such appointments, has made, constituted and
appointed, and by these presents does make, constitute and appoint R, Timothy Weston, 240
North Third Street, Harrisburg, PA 17101-1507, my true and lawful Attorney, for me and in my
Dyne, place and stead, to execute, as fully as I could do if personally present in the name of
the Authority to execute and deliver, as fully as I could do if personally present, that
Memorandum of Agreement Among the Advisory Council on Hisioric Preservation, the United
States Environmental Protection Agency and the Pennsylvania State Historic Preservation Office
related to the Harvest States Cooperatives/Amber Milling Company Division and Lackawanna
County Railroad Authority Proposed Flour Milling Facility, Monroe County, PA., and I do
hereby ratify and confirm whatsoever my said attorney shall lawfully do or cause to be done by
virtue hereof.
This Special Power of Attorney shall continue in force and may be accepted and relied
upon by any person to whom it is presented, despite my purported revocation of it or my
death, until actual written notice of such revocation or death is received by such person.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this _
day of August, 1997.
ATTEST: LACKAWANNA COUNTY RAILROAD
AUTHORITY
Lawrence C. Malski, Executive Director
My CommtMian CC632486
Expire* March 31. 2001
-------
ACKNOWLEDGEMENT
STATE OF FLORIDA
COUNTY OF & r
-------
MEMORANDUM OF AGREEMENT (DRAFT 6/2/00)
FOR RECOVERY OF SIGNIFICANT INFORMATION AND MITIGATION OF ADVERSE EFFECTS
IN COMPLIANCE WITH THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980,
As AMENDED, 42 U.S.C. §9601 ETSE& ("CERCLA")
AND SECTION 106 OF THE NATIONAL HISTORIC PRESERVATION ACT OF 1966,
As AMENDED, 16 U.S.C. § 470F ("NHPA")
FOR: EASTERN SURPLUS COMPANY SUPERFUND SITE, MEDDYBEMPS, MAINE
UNDERTAKING: FEDERAL ENVIRONMENTAL CLEANUP OF HAZARDOUS WASTE SITE
STATE: MAINE
AGENCY : UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
1 . Whereas, the United States Environmental Protection Agency ("EPA") has determined
that its environmental cleanup activities at the Eastern Surplus Company Superfund Site (the
"Site") have, and will continue to have, adverse effects upon the archaeological resources located
within Archaeological Site 96.02 (as named by the Maine Historic Preservation Commission in
its prehistoric site survey files), portions of which have been determined to be eligible for listing
on the National Register of Historic Places; and
2. Whereas, in accordance with 36 C.F.R. Part 800, EPA acknowledges and accepts the
advice and conditions outlined in the Advisory Council on Historic Preservation's
"Recommended Approach for Consultation on the Recovery of Significant Information from
Archaeological Sites," published in the Federal Register on May 18, 1999, with an effective date
of June 17, 1999 (the "Published Guidance"); and
3. Whereas, EPA has consulted with the Maine Historic Preservation Commission,
which is the designated State Historic Preservation Officer ("SHPO") in accordance with NHPA,
in order to comply with NHPA and its regulations, 36 C.F.R. Part 800 (the "Section 106
Process"); and
4. Whereas, EPA has identified as other consulting parties in the Section 106 process the
following: the Passamaquoddy Tribe (Indian Township and Pleasant Point); the Site property
owners (Terrell L. & Lisa J. Lord and Harry J. Smith, Jr.); the State of Maine (the Department of
Environmental Protection and the Maine State Museum); and the Town of Meddybemps, Maine,
and has invited the Passamaquoddy Tribe to sign this Memorandum of Agreement
("Agreement") as an invited signatory; and
_______ 5-_Whereas,J£PAJrasjmsulted.wi^
and cultural significance to Archaeological Site 96.02 (by virtue of its location and setting, and
the archaeological materials found there), and which requests active participation in any future
archaeological work at Archaeological Site 96.02 and in the future management of the Site; and
-------
EXAMPLE 6-E
EASTERN SURPLUS
-------
MEMORANDUM OF AGREEMENT
FOR RECOVERY OF SIGNIFICANT INFORMATION AND MITIGATION OF ADVERSE EFFECTS
IN COMPLIANCE WITH THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980,
. . As AMENDED, 42 U.S.C. § 9601 ET SEP. ("CERCLA"")
AND SECTION 106 OF THE NATIONAL HISTORIC PRESERVATION ACT OF 1966,
As AMENDED, 16 U.S.C. § 470F ("NHPA")
FOR: EASTERN SURPLUS COMPANY SUPERFUND SITE, MEDDYBEMPS, MAINE
UNDERTAKING: FEDERAL ENVIRONMENTAL CLEANUP OF HAZARDOUS SUBSTANCE SITE
STATE: MAINE
AGENCY: UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
1. Whereas, the United States Environmental Protection Agency ("EPA") has determined
that its environmental cleanup activities at the Eastern Surplus Company Superfund Site (the
"Site") have, and will continue to have, adverse effects upon the archaeological resources located
within Archaeological Site 96.02 (as named by the Maine Historic Preservation Commission in
its prehistoric site survey files), portions of which have been determined to be eligible for listing
on the National Register of Historic Places; and
2. Whereas, in accordance with 36 C.F.R. Part 800, EPA acknowledges and accepts the
advice and conditions outlined in the Advisory Council on Historic Preservation's
"Recommended Approach for Consultation on the Recovery of Significant Information from
. Archaeological Sites," published in the Federal Register on May 18,1999, with an effective date
of June 17, 1999 (the "Published Guidance"); and
3. Whereas, EPA has consulted with the Maine Historic Preservation Commission,
which is the designated State Historic Preservation Officer ("SHPO") in accordance with NHPA,
in order to comply with NHPA and its regulations, 36 C.F.R. Part 800 (the "Section 106
Process"); and
4. Whereas, EPA has identified as other consulting parties in the Section 106 Process the
following: the Passamaquoddy Tribe (Indian Township and Pleasant Point); the Site property
owners (Terrell L. & Lisa J. Lord and Harry J. Smith, Jr.); the State of Maine (the Department of
Environmental Protection and the Maine State Museum); and the Town of Meddybemps, Maine,
and has invited the Passamaquoddy Tribe to sign this Memorandum of Agreement
("Agreement") as an invited signatory; and
5. Whereas, EPA has consulted with the Passamaquoddy Tribe, which attaches religious,
and cultural significance to Archaeological Site 96.02 (by virtue of its location and setting, and
the archaeological materials found there), and which requests active participation in any future
archaeological work at Archaeological Site 96.02 and in the future management of the Site; and
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EASTERN SURPLUS COMPANY SUPERFUND SITE
MOA FOR RECOVERY OF SIGNIFICANT INFORMATION AND MITIGATION OF ADVERSE EFFECTS
PAGE 2
6. Whereas, EPA reached an agreement with the SHPO concerning the extent of the
Archaeological Site 96.02, the effects of the environmental cleanup activities on Archaeological
Site 96.02, and the areas designated for archaeological investigations1; and
7. Whereas, EPA has completed field work and preliminary analysis associated with
Phase I and Phase II investigations of Archaeological Site 96.02; and
8. Whereas, EPA and the SHPO have determined that portions of Archaeological Site
96.02 are eligible for National Register listing because these areas meet the National Register
Criteria, 36 C.F.R. § 60.4, in particular, the Ceramic Period and Laurentian Archaic Contexts
guiding National Register eligibility determinations for prehistoric archaeological sites in
Maine2; and
9. Whereas, EPA has met in consultation with representatives of the Passamaquoddy
Tribe (Indian Township and Pleasant Point), including with the Tribal Governors on June 25,
1999 and with the Tribal Governors and the Passamaquoddy Joint Council on July 14,1999,
concerning the findings and determinations made during the Section 106 Process; and
10. Whereas, EPA through its CERCLA public outreach process has provided the public
with information about the environmental cleanup activities and their effects on historic
properties at the Site and has given the public the opportunity to provide comment and input; and
11. Whereas, in accordance with 36 C.F.R. § 800.6(a)(l), EPA notified the Advisory
Council on Historic Preservation (the "Advisory Council") of the adverse effects to
Archaeological Site 96.02, and the Advisory Council accepted EPA's invitation to participate in
consultation; and
12. Whereas, EPA, the Advisory Council, the SHPO, and the Passamaquoddy Tribe
agree that it is in the public interest for EPA to implement environmental cleanup activities to
address the contamination of hazardous substances at the Site and that there are no practicable
alternatives to the cleanup approach selected by EPA in the July 1998 and May 1999 Action
'Details of this agreement are documented in a letter dated June 25,1999 from the SHPO
to EPA and in letters dated June 24,1999 from EPA to Governor Richard Stevens of the
Passamaquoddy Tribe's Indian Township Tribal Government and Governor Richard Doyle of the
Passamaquoddy Tribe's Pleasant Point Tribal Government.
2The areas that have been determined to be eligible for listing are identified in the
attached Site map (see Attachment 1).
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EASTERN SURPLUS COMPANY SUPERFUND SITE
MOA FOR RECOVERY OF SIGNIFICANT INFORMATION AND MITIGATION OF ADVERSE EFFECTS
PAGES
Memorandums that would have fewer adverse effects on the archaeological resources located
within Archaeological Site 96.02; and
13. Whereas, EPA, the Advisory Council, the SHPO, and the Passamaquoddy Tribe
agree that it is unavoidable that aspects of the Archaeological Site have been, and will continue
to be, adversely affected as a result of EPA's environmental cleanup activities; and
14. Whereas, EPA, the Advisory Council, the SHPO, and the Passamaquoddy Tribe
agree that EPA has made best efforts to minimize adverse effects on the archaeological resources
located within Archaeological Site 96.02; and
15. Whereas, EPA, the Advisory Council, the SHPO, and the Passamaquoddy Tribe
agree that the recovery of significant archaeological information from the Site will be done in
accordance with the Published Guidance; and
16. Whereas, to the best knowledge and belief of EPA, the Advisory Council, the SHPO,
and the Passamaquoddy Tribe, no human remains, associated or funerary objects or sacred
objects, or cultural patrimony, as defined in the Native American Graves Protection and
Repatriation Act (25 U.S.C. § 3001), are expected to be encountered in the archaeological work;
and
17. Whereas, the ownership and disposition of the archaeological artifacts recovered
from Archaeological Site 96.02 are anticipated to be resolved by Passamaquoddy Tribe, the State
of Maine and the Robert Abbe Museum of Stone Age Antiquities in an agreement or agreements
outside of this Agreement;
Now, therefore, EPA shall ensure that the following terms and conditions will be
implemented in a timely manner and with adequate resources in compliance with CERCLA and
NHPA.
TERMS AND CONDITIONS
1. EPA shall develop a mitigation plan based upon CERCLA remedial design parameters
for the Site and the research design for the recovery of archaeological data. The mitigation plan
shall be developed in consultation with the SHPO and the Passamaquoddy Tribe. .
2. EPA shall ensure that all archaeological research will be carried out pursuant to this
Agreement under the direct supervision of a person or persons meeting at a minimum the
Secretary of Interior's Professional Qualifications Standards for Historians and Archaeologists
(48 Federal Register 44738-44739, September 29,1983) and listed on the Maine level 2
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EASTERN SURPLUS COMPANY SUPERFUND SITE
MOA FOR RECOVERY OF SIGNIFICANT INFORMATION AND MITIGATION OF ADVERSE EFFECTS
PAGE 4
approved list for prehistoric archaeologists, and that there is an opportunity for at least one
member of the Passamaquoddy Tribe to be employed during the entire period of field
investigations.
3. The mitigation plan shall include, at a minimum: additional archaeological field
investigations, extending over approximately 200 square meters; reports addressing the scientific
and cultural value of the recovered materials; and generation of popular reporting materials to
transmit the findings to the public. The evaluation of the cultural value of the recovered
materials will be performed by consulting with appropriate experts, including members of the
Passamaquoddy Tribe. The mitigation plan shall require EPA to provide an on-Site public
educational exhibit and to install appropriate signs to notify the public of any land use restrictions
and the significance of Archaeological Site 96.02. The mitigation plan shall also require EPA to
place a soil cover over existing soils in the National Register eligible areas to protect remaining
portions of the Archaeological Site and establish appropriate grades for erosion control.
4. EPA shall ensure that, if any human remains or funerary objects are discovered at the
Site hi the course of the archaeological work, the human remains and funerary objects will
remain undisturbed unless threatened by construction or erosion, and the archaeological activity
will relocate out of the immediate vicinity.
5. EPA shall ensure that original records associated with the Phase I through Phase III
archaeological excavations at the Site will be curated at a repository meeting the standards set
forth in 36 C.F.R. Part 79. EPA shall ensure that copies of completed professional and popular
reports will be provided to the SHPO and the Passamaquoddy Tribe.
6. EPA shall include in the Site's remedial action Record of Decision a requirement to
implement land use restrictions which will prevent development and any other ground
disturbance that would adversely affect the cultural or historical resources at the Site, except any
ground disturbance resulting from environmental cleanup or mitigation activities.
7. Modification, amendment, or termination of this Agreement as necessary shall be
accomplished by the signatories in the same manner as this Agreement.
8. Should any party to this Agreement object at any tune to the manner in which the
terms of the Agreement are implemented, EPA shall consult with the objecting party to resolve
the objection. If EPA determines that the objection cannot be resolved, EPA shall forward all
documentation relevant to the dispute to the Advisory Council in accordance with 36 C.F.R. §
800.2(b)(2). Upon receipt of adequate documentation, the Advisory Council will either:
a. provide EPA with recommendations, which EPA will take into account in
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EASTERN SURPLUS COMPANY SUPERFUND SITE
MOA FOR RECOVERY OF SIGNIFICANT INFORMATION AND MITIGATION OF ADVERSE EFFECTS
PAGE 5
reaching a final decision regarding the dispute;
or
b. notify EPA that it will comment pursuant 36 C.F.R. § 800.7(c), and proceed to
comment. Any Advisory Council comment provided in response to such a request will be taken
into account by EPA in accordance with 36 C.F.R. § 800.7(c)(4) with reference to the subject of
the dispute.
Any recommendation or comment provided by the Advisory Council will be understood to
pertain only to the subject of the dispute; EPA's responsibility to carry out all actions under this
Agreement that are not the subjects of the dispute will remain unchanged.
9. This Agreement will be null and void if its terms are not carried out within five (5)
years from the date of its execution, unless the signatories agree in writing to an extension for
carrying out its terms.
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ur/uo/uu
EASTERN SURPLUS COMPANY SUPI-;RFUND SITE
MOA FOR RECOVERY OK SIGNIFICANT INFORMATION AND MITIGATION Of ADVERSE EFFECTS
PAGE 6
The UNDERSIGNED PARTY enters into this Memorandum of Agreement for Recovery of
Significant Information and Mitigation of Adverse Effects, relating to the Eastern Surplus
Company Superfund Site.
FOR THE U.S. ENVIRONMENTAL PROTECTION AGENCY
Date:
Patricia L. Meancy
Director
Office of Sile Remediation & Restoration
EPA New England
U.S. Environmental Protection Agency
1 Congress Street, Suite 1100
Boston, Massachusetts 02114-2023
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EASTERN SURPLUS COMPANY SUPERFUND SITE
MOA FOR RECOVERY OF SIGNIFICANT INFORMATION AND MITIGATION OF ADVERSE EFFECTS
PAGE 7
The UNDERSIGNED PARTY enters into this Memorandum of Agreement for Recovery of
Significant Information and Mitigation of Adverse Effects, relating to the Eastern Surplus
Company Superfund Site.
FOR THE ADVISORY COUNCIL ON HISTORIC PRESERVATION
Date: .
•'/•-'I—f.-**--.....-
John M. Fowler
Executive Director
Advisory Council on Historic Preservation
The Old Post Office Building
1100 Pennsylvania Avenue, N.W. #809
Washington, DC 20004
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ur/wo/uu i \:
EASTERN SURPLUS COMPANY SUPERFUND SITE
MOA FOR RECOVERY OF SIGNIFICANT INFORMATION AND MITIGATION OF ADVERSE EFFECTS
PAGE 8
The UNDERSIGNED PARTY enters into this Memorandum of Agreement for Recovery of
Significant Information and Mitigation of Adverse Effects, relating to the Eastern Surplus
Company Superfund Site.
FOR THE MAINE HISTORIC PRESERVATION COMMISSION
Date: */*?/*»
//
/
rle G. Shettlewo
Director
Maine Historic Preservation Commission
55 Capitol Street
65 State House Station
Augusta, Maine 04333
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04-13-88 87I33P f.03
EASTERN SURPLUS COMPANY SUPERFUND SITE
MOA FOR RECOVERY OF SIGNIFICANT INFORMATION AND MITIGATION OF ADVERSE EFFECTS
PACE 9
The UNDERSIGNED PARTY enters into this Memorandum of Agreement for Recovery of
Significant Information and Mitigation of Adverse Effects, relating to the Eastern Surplus
Company Superfiind Site.
Date: 07/13/00
Date: 07/13/00
FOR THE PASSAMAQUOD0V TRIBE
Richard Doyle
Tribal Governor
pleasant Point Reservation
P.O. Box 343
Peny, Maine 04667
Richard Stevens
.Tribal Govern
Indian Township Reservation
P.O. Dox301 ~~
Princetoni-Maine 04668
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ATTACHMENT 1
LAKE
SITE 96.02 BOUNDARY
Archaeological Research Consultants, Inc.
71 Oak Street, Ellsworth, Maine 04605
Cj Phone (207) 667-4055; Fax (207) 667-0485
Eastern Surplus
Tetra Tech NUS
Estimated limits of site 96.02.
v 01/28/2000
JAC
D:\Projects\Meddybemps\site limits.dwg
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AGREEMENT
7. Whereas, the Consent Decree entered as a final judgment on March 29, 1999, in the
consolidated actions of United States of America v Harry J. Smith, Jr.. et al. CA-99-21-B, and
State of Maine v Harry J. Smith, Jr.. et al. CA-99-22-B, both actions filed in the United States *
District Court, District of Maine (Bangor), provided for the cleanup of the Eastern Surplus
Superfund Site as well as the conveyance of real property to the State of Maine as set forth in
Section V. of the said Consent Decree and as depicted in Appendix B to the said Consent Decree
as referenced therein;
2. Whereas, during the cleanup of the Eastern Surplus Superfund Site performed under
contract with the United States Environmental Protection Agency (hereinafter, "EPA") certain
archaeological materials have been recovered and removed from the Site and it is anticipated that
additional archaeological materials will be recovered and removed from the Site during
additional archaeological field investigation at the Site conducted pursuant to a separate
Memorandum of Agreement which has been or will be entered among the Passamaquoddy Tribe,
EPA, the State of Maine, and the Advisory Council on Historic Preservation;
3. Whereas, the Passamaquoddy Tribe, a Federally recognized Indian tribe, claims rights,
title, and interests in the said archaeological materials which have been or will be recovered or
removed from the location described in Section V. of the said Consent Decree as well as
archaeological materials remaining at said location, including items remaining within the earth
at said location;
4. Whereas, the State of Maine, including the Maine Department of Environmental
Protection, and the Maine State Museum (hereinafter, collectively, the "State of Maine" or
"State"), claims rights, tide, and interests in the said archaeological materials which have been
or will be recovered or removed from the location described in Section V. of the said Consent
Decree as well as archaeological materials remaining at said location, including items remaining
within the earth at said location;
5. Whereas, the Passamaquoddy Tribe and the State of Maine are-eemmitted to having
the said archaeological materials curated in accordance with responsible museum practices,
consistent with the standards established by the United States Department of the Interior for
1
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Federal repositories;
6. Whereas, the Passamaquoddy Tribe and the State of Maine each recognizes and
accepts the Robert Abbe Museum of Stone Age Antiquities (hereinafter, "Abbe Museum") as an
institution proper for the curation of the said archaeological materials:
7. Whereas, Terrell L. Lord, Lisa J. Lord, and Harry J. Smith, Jr., have agreed pursuant to
the said Consent Decree, to transfer all rights, title, and interests which they may hold to all real
property located at the said Site;
8. Whereas, by operation of the said Consent Decree, after August 31,1998, Harry J.
Smith, Jr., has been deemed to have abandoned and to have no claim for compensation for any
personal property remaining at the said Site;
9. Whereas, Harry J. Smith, Jr., conveyed all rights, title, and interests hi archaeological
materials removed from and embedded in the soil of his real property located at the said Site to
the Passamaquoddy Tribe, through the instrument of a Preservation Agreement, recorded hi Book
2385. Page 49, at the Washington County Registry of Deeds;
NOW THEREFORE, in consideration of the promises mutually exchanged herein,
IT IS AGREED TO BETWEEN THE PARTIES as follows:
1. The Passamaquoddy Tribe, the State of Maine, Terrell L. Lord, and Lisa J. Lord will
each release all of then* respective rights, title, and interests to the said archaeological materials
(hereinafter, "the collection") to the Abbe Museum, in accordance with a Quitclaim Deed of
Conveyance as set forth hi Exhibit A, attached hereto to be executed and delivered herewith;
2. The collection thereby conveyed shall be delivered to the Abbe Museum as a museum-
suitable collection by EPA's archaeologist, after a reasonable period of examination for the
purpose of inventorying and studying the said archaeological materials, but not later than two
years from the date of this Agreement.
3. While the Passamaquoddy Tribe and the State of Maine recognize that they each make
claim to rights, title, and interests in the collection thereby conveyed, each hereby agrees that this
Agreement shall not be construed or claimed by either of them to be an admission of the claim
made to said items by the other.
4. The Abbe Museum, by its acceptance of the terms of this Agreement, agrees that while
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it has title to said collection (see "Exhibit A") it will hold and handle the archaeological materials
thereby conveyed in accordance with the standards established by the United States Department
of the Interior for Federal repositories (hereinafter, the "agreed-upon standards") and responsible
museum practices.
5. The Abbe Museum, by its acceptance of the terms of this Agreement, agrees that it
will provide at least forty-five days notice to the Passamaquoddy Tribe and the State of Maine by
sending notification to each party at the addresses provided in this Agreement, prior to
transferring all or any portion of the collection to a third party.
6. Archaeological materials which have hot been recovered in earlier Site work or to be
recovered pursuant to the Memorandum of Agreement regarding the Meddybemps site, shall be
protected from excavation, to the extent the parties can reasonably do so, including specifically
by means of restrictive deed covenants to run with the land, in any and all deeds transferring the
real property or any interest therein as to which deeds any of the parties to this Agreement shall
be Grantor, except that any archaeological materials that may be found at the Site after the date
of this Agreement, notwithstanding the foregoing restriction, shall be owned, held, and
maintained by the Abbe Museum in the same manner as those hereby presently conveyed to the
Abbe Museum.
7. Notwithstanding paragraph 5 of this Agreement, any portion or all of the collection
may be transferred to the Passamaquoddy Tribe at any time after the Passamaquoddy Tribe has a
museum facility that complies with the agreed-upon standards set forth in paragraph 4 of the
Agreement and responsible museum practices.
8. If any portion or all of the collection is transferred to a museum other than the museum
facility of the Passamaquoddy Tribe, that museum must be:
(a) a museum which will hold the collection in compliance with the agreed-upon
standards as set forth in paragraph 4 and responsible museum practices;
(b) at a location within the State of Maine determined by the committee of 8(c); and
(c) the specific facility to which the collection is transferred under this section will be
selected by consensus, if possible, but if not possible, by a majority vote of a committee
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composed of a representative determined for that purpose by the Passamaquoddy Tribe, selected
by Tribal Historic Preservation Officer, or, if none, by the Joint Tribal Council, a representative
determined for that purpose by the State of Maine selected by the State. Historic Preservation
Officer, and a representative of the Abbe Museum determined for that purpose by the Abbe
Museum Board of Trustees.
9. The State of Maine, the Passamaquoddy Tribe, Terrell L. Lord, and Lisa J. Lord, and
the Abbe Museum hereby agree to the full extent permitted by law to sign and execute any and
all other documents, instruments or other writings necessary to effectuate the provisions of this
Agreement. The undersigned parties hereby agree to accept and abide by the terms of this
Agreement.
Dated at ^. t/>^A? *J (u
T^ /^ ^2000
aine
e, Tribal
On behalf of
the Passamaquoddy Tribe,
Its duly authorized representative
Personally appeared before me the above-named Richard Doyle, in his capacity as Tribal
Governor of the Passamaquoddy Tribe, and who stated that he acknowledged his signature before
me as his free act and deed.
Dated at
Public/Attorney at Law
Richard Steves, Tribal-Governor
On behalf of
the Passamaquoddy Tribe,
Its duly authorized representative
4
-------
Personally appeared before me the above-named Richard Stevens, in his capacity as Tribal
Governor of the Passamaquoddy Tribe, and who stated that he acknowledged his signature before
me as his free act and deed.
Dated at
, Maine
,2000
Notary Public/Attorney at Law
Printed Name of Official :
/£.
Dated at
, Maine
, 2000
Martha G. Kirkpatrick, Commissioner
State of Maine
Department of Environmental Protection
for the State of Maine,
Its duly authorized representative
Personally appeared before me the above-named Martha G. Kirkpatrick, in her capacity as
Commissioner, Maine Department of Environmental Protection, and who stated that she
acknowledged her signature before me as her free act and deed.
Dated at
, Maine
, 2000
Notary Public/Attorney at Law
Printed Name of Official:
Dated at
, Maine
/3,2000
Joseph R. Phillips, Museum Director
Maine State Museum
Its duly authorized representative
Personally appeared before me the above-named Joseph R. Phillips, in his capacity as Museum
Director, Maine State Museum, and who stated that he acknowledged his signature before me as
5
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his free act and deed.
Dated at
, Maine
/., S.I
. , 2000
'Attorney at Law
Printed Name of Official:
Dated at
/C200Q
Maine
&*§.
DennisJ. Harnish,
Assistant Attorney General
Department of the Attorney General
for the State of Maine,
Its duly authorized representative
Personally appeared before me the above-named Dennis J. Harnish, Esquire, in his capacity as
Assistant Attorney General, authorized to so act on behalf of the Attorney General for the State
of Maine, who stated that he acknowledged his signature before me as his free aSUSft&J&eij&ARADSS
behalf of the State of Maine. Notary Public • State of fvtein
My Commission Expires:
Dated at fllA. #6/5779 , Maine
/J. 2000
'
O // '
. Hu?f/dL(j0
Notary Public/Attorney at Law
Printed Name of Official:
Dated at
.Maine
,2000
Oscar E. Remick, President
Board of Trustees
for the Abbe Museum,
Its duly authorized representative
Personally appeared before me the above-named Oscar E. Remick, in his capacity as President,
Board of Trustees, Robert Abbe Museum of Stone-age Antiquities, and who stated that he
-------
acknowledged his signature before me as his free act and deed.
Dated at fl£->^ju- Maine
SOL* _ 1b , 2000
Notary Public/Attorney at Law
Printed Name of Official:
Q.
Dated at L^
Dated at [Gj> , Maine
-?.£. 2000
_
Lisa J. Lord
Personally appeared before me the above-named Lisa J. Lord, who stated that she acknowledged
her signature before me as her free act and deed.
/J
Dated at C,&Ja.(S , Maine
' 200°
Notary Public/Attorney at Law
Printed Name of Official: V
S/6
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Quitclaim Deed of Conveyance
KNOW ALL MEN BY THESE PRESENTS, That, the STATE OF MAINE, in care of
its Commissioner of the Maine Department of Environmental Protection, Hospital Street AMHI
Ray Building, 17 State House Station, Augusta, Maine 04333-0017, and the Museum Director.of
the Maine State Museum, Cultural Building, 83 State House Station, Augusta, Maine 04333-
0083, in consideration of an Agreement signed by the State of Maine on July 13 j
2000,
and the PASSAMAQUODDY TRIBE, a Federally recognized Indian Tribe, whose
mailing address is P.O. Box 343, Perry, Maine 04667, and P.O. Box 301, Princeton, Maine
04668, in consideration of an Agreement signed by the Passamaquoddy Tribe on July 20
__, 2000,
and Terrell L. Lord and Lisa J. Lord, of Meddybemps, County of Washington, State of
Maine,
do hereby RELEASE unto the said Robert Abbe Museum of Stone Age Antiquities,
P.O. Box 286, Mount Desert Street, Bar Harbor, Maine 04609, its successors and assigns, in
accordance with the terms of said agreement, the terms of which were accepted by the Robert
Abbe Museum of Stone Age Antiquities, by date of July 28 ,2000,
all of their respective rights, title, and interests in all archaeological materials removed,
and to be removed, or subsequently discovered from site 96.02, the Eastern Surplus Company
Superfund Site, which is located in Meddybemps, Maine. The archaeological materials include
without limitation various types of stone artifacts, aboriginal ceramic fragments, burned food
bone remains, samples of carbonized plants remains, and soil samples.
TO HAVE AND TO HOLD all and singular the said goods to the said Robert Abbe
Museum of Stone Age Antiquities, its successors and and assigns, in accordance with the terms
of said Agreement to which reference is hereby made.
WITNESS our hands and seals,
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Dated at J^-cy/U A) MX* P . Maine
2000
x /, —r-—
Richard Doyle, Tribal Governor
On behalf of
the Passamaquoddy Tribe,
Its duly authorized representative
Personally appeared before me the above-named Richard Doyle, in his capacity as Tribal
Governor of the Passamaquoddy Tribe, and who stated that he acknowledged his signature before
me as his free act and deed.
Dated at. |y\q . lup , Maini
. 2000
ut
Dated at \-f\d "Ttilp • . Mauie
\JU
, 2000
btary Public/Attorney at Law
O.
Richard Stevens, Tribal Governor
On behalf of
the Passamaquoddy Tribe,
Its duly authorized representative
Personally appeared before me the above-named Richard Stevens, in his capacity as Tribal
Governor of the Passamaquoddy Tribe, and who stated that he acknowledged his signature before
me as his free act and deed.
-------
Dated at
Dated at
, Maine
,2000
Notary Public/Attorney at Law
Printed Name of Official:
, Maine
, 2000.
Martha G. Kirkpatrick, Commissioner
State of Maine
Department of Environmental Protection
for the State of Maine,
Its duly authorized representative
Personally appeared before me the above-named Martha G. Kirkpatrick, in her capacity as
Commissioner, Maine Department of Environmental Protection, and who stated that she
acknowledged her signature before me as her free act and deed.
Dated at
Dated at
, Maine
,2000
bc/Attorney at Law
Printed Name of Official:
, Maine
^3,2000
>seph R. Phillips, Museum Director
-------
Maine State Museum
Its duly authorized representative
Personally appeared before me the above-named Joseph R. Phillips, in his capacity as Museum
Director, Maine State Museum, and who stated that he acknowledged his signature before me as
his free act and deed.
Dated at
. Maine
*f "
I iJii\ I y ,2000
/j .
*•/
Printed Name of Official:
J
"?/
''' /
U.
,
' / '
*t j
at Law
Dated at
Maine
2000
K
Dennis J. Harnish,
Assistant Attorney General
Department of the Attorney General
for the State of Maine,
Its duly authorized representative
Personally appeared before me the above-named Dennis J. Harnish, Esquire, in his capacity as
Assistant Attorney General, authorized to so act on behalf of the Attorney General for the State
of Maine, who stated that he acknowledged his signature before me as his free act and deed on
behalf of the State of Maine. _
Dated
. Maine
-------
13,2000
L
Notary Public/Attorney at Law
SUSAN L. FARADIS
" Notary Public • State of Mains
Printed Name of Official: MV Commission Expires: .3/!2/C£
Dated at TftcxJru., , Maine
guov 1£ , 2000 .
.:A_
Oscar E. Remick, President
Board of Trustees
for the Abbe Museum,
Its duly authorized representative
Personally appeared before me the above-named Oscar E. Remick, in his capacity as President,
Board of Trustees, Robert Abbe Museum of Stone-age Antiquities, and who stated that he
acknowledged his signature before me as his free act and deed.
Dated at TfLe*Ae>t_ Maine
lux 28 .2000
Notary Public/Attorney at Law
Printed Name of Official:
i-Ottu/Ux. IS..
Dated
at C-& I ^ }
Maine
Z.T.2000
Terrell L. Lord
Personally appeared before me the above-named Terrell L. Lord, who stated that he
-------
acknowledged his signature before me as his free act and deed.
.-
Date.d at /' '?_S4.'..* » Maine
.-^,2000 /SMJZ/W ^ ^sfr ,;.»?*_.
(j Notary Public/Attorney at Law
Printed Name of Official:
N
/. SAi717?^r
Dated at jCL((2l , Maine
,2000
Lisa J. Lord
Personally appeared before me the above-named Lisa J. Lord, who stated that she acknowledged
her signature before me as her free act and deed.
/?;
Dated at C ff^-^^L , Maine
^
.^,2000
0 Notary PublicAattorney at Law
Printed Name of Official:
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EXAMPLE 6-F
EASTLAND WOOLEN
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MEMORANDUM OF AGREEMENT
FOR MITIGATION OF ADVERSE EFFECTS
IN CoMi'i.iANci- WITH TIIH
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980,
As AMENDED, 42 U.S.C. § 9601 ET SEP. ("CERCLA")
AND SECTION 106 OF THE NATIONAL HISTORIC PRESERVATION ACT OF 1966,
As AMENDED, 16 U.S.C. § 470F ("NHPA")
FOR: EASTLAND WOOLEN MILL SUPERFUND SITE, CORINNA, MAINE
UNDERTAKING: FEDERAL ENVIRONMENTAL CLEANUP OF HAZARDOUS SUBSTANCE SITE
STATE: MAINE
AGENCY: UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
1. Whereas, the United States Environmental Protection Agency ("EPA") has determined
that its environmental cleanup activities at the Eastland Woolen Mill Superfund Site (the "Site")
will have an adverse effect upon a historic property which has been determined to be eligible for
listing on the National Register of Historic Places; and
2. Whereas, EPA has consulted with the Director of the Maine Historic Preservation
Commission, who is the designated State Historic Preservation Officer ("SHPO") in accordance
with NHPA, in order to coi^ly with NHPA and its regulations, 36 C.F.R. Part 800 (the "Section
106 Process"); and
3. Whereas, EPA has identified as other consulting parties in!ihe Section 106 Process the
following: the Town of Corinna,'the Town of Corinna Historical Society, and the Independent
Order of Odd Fellows ("Odd Fellows"); and
4. Whereas, EPA and the SHPO have determined that the Odd Fellows structure is
eligible for National Register listing in accordance with the National Register Criteria, 36 C.F.R. §
60.4, 'in particular, the structure has important cultural associations hi the town, the state, and the
New England region as one of the more widespread fraternal societies; and
5. Whereas, EPA through its CERCLA public outreach process has provided the public
with information about the environmental cleanup activities and their effects on historic properties
at the Site and has given the public the opportunity to provide comment and input; and
6. Whereas, in accordance with 36 C.F.R, § 800.6(a)(l), EPA notified the Advisory
Council on Historic Preservation (the "Advisory Council") of the adverse effects to a historic
property; and
7. Whereas, EPA and the SHPO agree that it is in the public interest for EPA to
implement environmental cleanup activities to address the contamination of hazardous substances
at the Site and that there are no practicable alternatives to the cleanup approach selected by EPA
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EASTLAND WOOLEN MILL SUPERKJND SITE
MO A FOR MITIGATION OF ADVERSE EFFECTS
PAGE 2
in the July 1 999 Action Memorandum that would have fewer adverse effects on the historic
property located within the Site; and
8. Whereas, EPA and the SHPO agree that it is unavoidable that aspects of the historic
property will be adversely affected as a result of EPA' s environmental cleanup activities; and
9. Whereas, EPA and the SHPO agree that EPA has made best efforts to minimize
adverse effects on the historic property; and
10. Whereas, to the best knowledge and belief of EPA and the SHPO, no human remains,
associated or funerary objects or sacred objects, or cultural patrimony, as defined in the Native
American Graves Protection and Repatriation Act (25 U.S. C. § 3001), are expected to be
encountered in the archaeological work; and
^ therefore, EPA shall ensure that the following terms and conditions will be
implemented in a timely manner and with adequate resources in compliance with CERCLA and
NHPA.
• . TERMS AND CONDITIONS
.il.pEPA shall ensure that the property is moved in accordance with the approaches
recommended in Moving Historic Buildings (John Obed Curtis, 1979, American Association for
State and Local History) and the Eastland Woolen Mill Superfund Site "Oddfellows Building
Relocation, Building Relocation Plan," (August 1 1, 2000) hi consultation with the SHPO, by a
professional mover who has the capability to move historic structures properly.
2. Before the Odd Fellows structure is moved, EPA shall ensure that it is documented in
its existing setting and context in accordance with the documentation plan entitled Schedule of
Documentation for the Recording of Odd Fellows Hall, Corinna, Maine provided to EPA by the
Maine Historic Preservation Commission by letter dated July 10, 2000 and attached.
3. The owners of the Odd Fellows structure shall implement a Conservation Easement
and Declaration of Restrictive Covenants which prevent the alteration of the structure in a
manner that would cause a loss of the historic integrity. Such instrument will include a provision
that requires the approval of the Maine Historic Preservation Commission prior to any alteration
of the structure.
4. Should any party to this Agreement object at any time to the manner in which the terms
of the Agreement are implemented:
a. EPA shall consult with the objecting party to resolve the objection; and
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EAST!.AND WOOLEN MlLI. SUPER FUND SITE
MO A FOR MlTKiATION OF ADVERSE EFFECTS
PACiE 3
b. If EPA determines that the objection cannot be resolved, EPA shall forward all
documentation relevant to the dispute to the Advisory Council in accordance with 36 C.F.R. §
800.2(b)(2). Upon receipt of adequate documentation, the Advisory Council will either:
1 . provide EPA with recommendations, which EPA will take into account
in reaching a final decision regarding the dispute; or
2. notify EPA that it will comment pursuant 36 C.F.R. § 800.7(c), and
proceed to comment. Any Advisory Council comment provided in response to such a request will
be taken into account by EPA in accordance with 36 C.F.R. § 800.7(c)(4) with reference to the
subject of the dispute.
Any recommendation or comment provided by the Advisory Council will be understood to pertain
only to the subject of the dispute; EPA's responsibility to carry out all actions under this
Agreement that are not the subjects of the dispute will remain unchanged.
5. This Agreement will be null and void if its terms are not carried out within five (5)
years from the date of its execution, unless the signatories agree in writing to an extension for
carrying out its terms.
The UNDERSIGNED PARTY enters into this Memorandum of Agreement for Recovery of
Significant Information and Mitigation of Adverse Effects, relating to the Eastern Surplus
Company Superfund Site. .
U.S. ENVIRONMENTAL PROTECTION AGENCY
Date:
Patricia L. Meaney
Director
Office of Site Remediation & Restoration
EPA New England
U.S. Environmental Protection Agency
1 Congress Street, Suite 1100
Boston, Massachusetts 02114-2023
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EA.STI.AND \v< IOI.I-:N MII.I. SUPERMINI) SITK
MOA FOR MlTKiATION ()l; ADVERSE ElTKCTS
The UNDERSlCiNED PARTY enters into this Memorandum of Agreement for Recover)' of
Significant Information and Mitigation of Adverse Effects, relating to the Eastern Surplus
Company Superfund Site.
Date:
7
FOR THE MAINE HISTORIC PRESERVATION COMMISSION
EarleG. ShettleworW Jr.
Director and SHPO /
Maine Historic Preservation Commission
55 Capitol Street
65 State House Station
Augusta, Maine 04333
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EASTLAND WOOLEN MILL SUPERFUND SITE
MOA FOR MITIGATION OF ADVERSE EFFECTS
PAGE 5
The UNDERSIGNED PARTY enters into this Memorandum of Agreement for Recovery of Significant
Information and Mitigation of Adverse Effects, relating to the Eastland Woolen Mill Superfund
Site.
FOR THE STONE-EZEL LODGE No. 139, INDEPENDENT ORDER
OF ODD FELLOWS
Name (printed)
Title (printed)
- PaJ ^
1 acknowledged MarkS. Brooks and Paul H. Reynolds signature
on October 3, 2000.
Pamela D. Buck, Notary
Commission expites 05/03/2004
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EASTLAND WOOLEN MILL SUPERFUND SITI-:
MOA FOR MITIGATION OF ADVERSE EFFECTS
PAGE 6
The UNDERSIGNED PARTY enters into this Memorandum of Agreement for Recovery of Significant
Information and Mitigation of Adverse Effects, relating to the Eastland Woolen Mill SuperfUnd
Site.
Date:
-y.
GRAND LODGE, INDEPENDENT ORDER OF ODD FELLOWS or
MAINE
Name (printed)
[e (printed)
My Commission Expires
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CONSERVATION EASEMENT
AND
DECLARATION OF RESTRICTIVE COVENANTS
1. This Conservation Easement and Declaration of Restrictive Covenants is made this 4th
day of (vt-nha- 200 Q_, by and between the Grand Lodge, Independent Order of Odd
Fellows of Maine, and Stone-Ezel Lodge No. 139, Independent Order of Odd Fellows,
("Grantors"), having an address of Grand Lodge of Maine, 300 Fairview Avenue, Auburn,
Maine 04210 (Attn: John Gregory, Grand Secretary), and, the State of Maine Historic
Preservation Commission ("Grantee"), having an address of 55 Capitol Street 65 State House
Station, Augusta, Maine, 04333-0065.
WITNESSETH:
2. WHEREAS, Grantors are the owners of a parcel of land located in Corinna, Penobscot
County, State of Maine, more particularly described on Exhibit A attached hereto and made a
part hereof (the "Property"); and -
3. WHEREAS, the Property, is near the Eastland Woolen Mill Siiperfund Site ("Site"), which
me U.S,^virormientai Protection Agency ("EJA „ *" ^.
Comprehensive Environmental Rib^bii%','~
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E. Traffic management including diversion of Main Street and the building of a new
bridge to traverse Main Street.
5. WHEREAS, the Independent Order of Odd Fellows Hall, currently located on lot 123 in
Corinna, Maine ("Odd Fellows Hall"), is eligible for the National Register of Historic Places,
EPA has determined that it is appropriate to move the building rather than demolish it, and
called for by the Action Memorandum; and
6. WHEREAS EPA plans to move the Odd Fellows Hall from lot 123 (sold to the State of
Maine by the Grantors) to lot 118-A (acquired by the Grantors subject to a reversionary
interest owned by the Town of Corinna) in Corinna, Maine; and
7. WHEREAS, the Grantee has requested that EPA help insure that the Odd Fellows Hall is
appropriately maintained and preserved in accordance with the Secretary of the Interior's Standards for
the Treatment of Historic Properties; and
8. WHEREAS, the removal action has been partially implemented at the Site; and
9. WHEREAS, the parties hereto have agreed 1) to grant a permanent right of access over me
Property to the Grantee for purposes of inspecting the Property at reasonable times in order to
ascertain whether she conditions of this Conservation Easement and Declaration of Restrictive
Covenants are being met.; and 2) to impose on the Property use restrictions as covenants that
will run with the land for the purpose of protecting human health and the environment; and
'• ^
10.. WHEREAS, Grantors wish to cooperate fully with the EPA in the implementation of all
response actions at the Site; ^ '
; NOW, THEREFORE:
11. Grant: Grantors, on behatf of themselves, their successors and assigns, without payment
of consideration, does hereby covenant arid declare that the Property shall be subject to the
restrictions on use set forth below, and does give, grant and convey to the Grantee, and its
assigns, with general warranties of title, 1) the perpetual right to enforce said use restrictions,
and 2) a conservation easement of the nature and character, and for the purposes hereinafter
set forth, with respect to the Property. •
12. Purpose: It is the purpose of this instrument to convey to the Grantee real property rights,
which will run with the land, to maintain and preserve the historic character of the Odd
Fellows Hall.
13. Restrictions: The following covenants, conditions, and restrictions apply to the Property,
run with the land and are binding on the Grantors:
Page 2 of 9
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No construction, alteration, or any other activity shall be undertaken which will alter or
adversely affect the appearance or structural integrity of the interior or exterior of the
Odd Fellows Hall without prior written permission and design approval from the
Grantee.
14. Modification of restrictions: The above restrictions may be modified, or terminated in
whole or in part, in writing, by the Grantee. If requested by the Grantors, such writing will be
executed by Grantee in recordable form.
15. Conservation Easement: Grantors hereby grant to the Grantee an irrevocable, permanent
and continuing right of access at all reasonable times to the Property for purposes of inspecting
the Property at reasonable times in order to ascertain whether the conditions of this
Conservation Easement and Declaration of Restrictive Covenants are being met.
16. Reserved rights of Grantors: Grantors hereby reserve unto themselves, their successors,
and assigns, all rights and privileges in and to the use of the Property which are not
incompatible with the restrictions, rights and easements granted herein.
17. Notice requirement: Grantors agree to include in any instrument conveying any interest in
any portion of the Property, including but not limited to deeds, leases and mortgages, a notice
which is in substantially me following form: ' ,
NOTICE: THE INTEREST CONVEYED HEREBY IS
SUBJECT TO A CONSERVATION EASEMENT AND
DECLARATlbNpFRESTMqrrVE COY^
,200 'RECORDED IN THE PUBiic LAND
RECORDS ON , 200_, IN BOOK ,
PAGE , IN FAVOR OF, AND ENFORCEABLE BY,
THE STATE OF MAINE.
Within thirty (30) days of the date any such instrument of conveyance is executed, Grantors
must provide Grantee with a certified true copy of said instrument and, if it has been recorded
in the public land records, its recording reference.
18. Enforcement: The Grantee shall be entitled to enforce the terms of this instrument by
resort to specific performance or legal process. All remedies available hereunder shall be in
addition to any and all other remedies at law or in equity. Enforcement of the terms of this
instrument shall be at the discretion of the Grantee, and any forbearance, delay or omission to
exercise its rights under this instrument in the event of a breach of any term of this instrument
shall not be deemed to be a waiver by the Grantee of such term or of any subsequent breach of
the same or any other term, or of any of the rights of the Grantee under this instrument.
Page 3 of 9
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] 9. Damages: Grantee shall be entitled to recover damages for violations of the terms of this
instrument, or for any injury to the remedial action, to the public or to the environment
protected by this instrument.
20. Waiver of certain defenses: Grantors hereby waive any defense of laches, estoppel, or
prescription.
21. Covenants: Grantors hereby covenant to and with the State of Maine and its assigns, that
the Grantors are lawfully seized in fee simple of the Property, that the Grantors have a good
and lawful right and power to sell and convey it or any interest therein; that the Property is
free and clear of encumbrances, and that the Grantors will forever warrant and defend the title
thereto and the quiet possession thereof.
22. Notices: Any notice, demand, request, consent, approval, or communication that either
party desires or is required to give to the other shall be in writing and shall either be served
personally or sent by first class mail, postage prepaid, addressed as follows:
To Grantors:
Stone-Ezel Lodge No. 139
Independent Order of Odd Fellows
c/o Mr. Paul C. Foumier, Esq.
Law Offices of Paul C. Foumier, P.A.
65 East Avenue
P.O. Box 1703 v
Lewiston, Maine 04241 -1703
The Grand Lodge,
Independent Order of Odd Fellows of Maine
300 Fairview Avenue
Auburn, Maine 04210
(Attn: John Gregory, Grand Secretary)
To Grantee:
Maine Historic Preservation Commission
55 Capitol Street
65 State House Station
Augusta, Maine, 04333-0065
Page 4 of 9
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3. General provisions:
A. Controlling law: The interpretation and performance of this instrument shall be
governed by the laws of the United States or, if there are no applicable federal laws, by
the law of the state where the Property is located.
B. Liberal construction: Any general rule of construction to the contrary
notwithstanding, this instrument shall be liberally construed in favor of the grant to
effect the purpose of this instrument and the policy and purpose of the National Historic
Preservation Act. If any provision of this instrument is found to be ambiguous, an
interpretation consistent with the purpose of this instrument that would render the
provision valid shall be favored over any interpretation that would render it invalid.
C. Severability: If any provision of this instrument, or the application of it to any
person or circumstance, is found to be invalid, the remainder of the provisions of this
instrument, or the application of such provisions to persons or circumstances other than
those to which it is found to be invalid, as the case may be, shall not be affected
thereby.
D. Entire Agreement: This instrument sets forth the entire agreement of the parties
with respect to rights and restrictions created hereby^ and supersedes all prior J; .£• :;.
discussions, negotiations,^understandings, or agreements relating thereto, allof which :
are merged herein.
E. ..No Forfeiture: .Nothing contained herein wll result in a forfeiture or reversion -of -f
Grantors'title in any respect. > l
F. Joint Obligation: If there are two or more parties identified as Grantors herein, the
obligations imposed by this instrument upon them shall be joint and several.
G. Successors: The covenants, terms, conditions, and restrictions of this instrument
shall be binding upon, and inure to the benefit of, the parties hereto and their respective
personal representatives, heirs, successors, and assigns and shall continue as a servitude
running in perpetuity with the Property. The term "Qrantors", wherever used herein,
and any pronouns used in place thereof, shall include the persons and/or entities named
at the beginning of this document, identified as "Grantors" and their personal
representatives, heirs, successors, and assigns. The term "Grantee", wherever used
herein, and any pronouns used in place thereof, shall include the persons and/or entities
named at the beginning of this document, identified as "Grantee" and their personal
representatives, heirs, successors, and assigns. The rights of the Grantee and Grantors
under this instrument are freely assignable, subject to the notice provisions hereof.
Page 5 of 9
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H. Termination of Rights and Obligations: A party's rights and obligations under iliis
instrument terminate upon transfer of the party's interest in the Easement or Properly.
except that liability for acts or omissions occurring prior to transfer shall survive
transfer.
I. Captions: The captions in this instrument have been inserted solely for convenience
of reference and are not a part of this instrument and shall have no effect upon
construction or interpretation.
J. Counterparts: The parties may execute this instrument in two or more counterparts,
which shall, in the aggregate, be signed by both parties; each counterpart shall be
deemed an original instrument as against any party who has signed it. In the event of
any disparity between the counterparts produced, the recorded counterpart shall be
controlling.
TO HAVE AND TO HOLD unto the State of Maine and its assigns forever.
Page 6 of 9
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IN WITNESS WHEREOF, Grantors have caused this Agreement to be signed
in its name.
Executed this
day of
200^.
Grand Lodge,
Independent Order of Odd Fellows of Maine
STATE OF
COUNTY OF
) ss
On this ^ day of ?f. , 200Q.> before me, the undersigned, a Notary Public in and
for the State of ///fc i Vg> duly commissioned and sworn, personally appeared // /A/ 9
//f- 1 1 _ , known to be the&yyn fl^
My Commission Expires:
Page 7 of 9
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Executed this 5 day of #<.'t~ .200(7.
Stone-Eze! Lodge No. 139.
Independent Order of Odd Fellows
By: _l_
Its:.
, V
STATE OF tfQir&s )
i ) SS
COUNTY OF rett/sra/ )
On this,^. day of^/£t , 2000^ before me, the undersigned, a Notary Public in and
for ibe State of Ab/V)6L , duly commissioned and sworn, personally appeared^ „,
-y «»—*P —n ^— ; , . jfofe G-rand f«5^nC~*^/9e*/l?9 ,,
, known to be the Serrrtarvf of ' ^ ', the
corporation that executed the foregoing instrumentf and acknowledged the said instrument to
be the free and voluntary act and deed of said corporation, for the uses and purposes therein
mentioned, and on oath stated that they are authorized to execute said instrument.
Witness my hand and official seal hereto affixed the day and year written above.
Notary Public in and for the
State of
1
My Commission Expires:
Page 8 of 9
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This easement is accepted this / day of
STATE OF MAINE
the persons and/or entities named at the beginning of this document, identified as "Grantors'
and their personal representatives, heirs, successors, and assigns.
MAINE HISTORIC PRESERVATION
COMMISSION
By:
Attachments: Exhibit A - legal description of the Property (Lot 118-A)
Page 9 of 9
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MUNICIPAL QUITCLAIM DEED WITHOUT
The lohibitsnt} of the Town of Corinns, a municipal corporals- r. iocateJ in
Count) . Maine, for consideration paid, grant to Ston«-EteI Lodge *139, independent Ordtr of
Odd Fellows, u Maine corporation with a location in Cerinna. Vf&ioc, f
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In v-'Uncss whereof, the Inhabitants of the Tov-n of Cor-.rjia hs^c causeO ihis utca ;u uc
t by chc undcrs.gncd selectmen, duly authorized this j d£> ct" S^r>{ 2 (XXX
Witness.
ff
Inhabitants of the Town of Corlrma
By.
St«v«n R. Buclc, Chairman, Sft
Galen t. McJCenaey, Selectman
By
P. Emerson, Selectman
Bv
Roland G Dorm an. III. Selecunar.
By
ia F Lister. Selectman:
?er.obsc-ot Coumv
STATE OF MAINE
2000
Personally appeared the above-named Steven R. Buc».. Cheinr.in of :he Selectmen of die
Town of Corinna. tnd acknowledged before me the foregoing insirurnent to be fets free act and
Notery PuHtc / Attomer at
Print or type name &s signed
"Maine Real Estate
TransferTax
PEMOBSCOT COCNTY.
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CERTIFICATE OF PERSONALTY
This Agreement is made by and between The Inhabitants of the Town or Corlnna, a
municipal corporation located in Penobscoi County, Maine, (hereinafter the Town), and Ston«-
Etel Lodge *139, lndcpecd«nt Order of Odd Fellows, a Maine corporation with n location in
Corinna, Maine, (hereinafter iht Lodge).
A certain piece of re«U estate situated in Coiinoa. Penobscot County, Maine, is being
transferred by the Town (o the Lodge by deed of sub$tantiaUy_even date herewith, to be recorded
herewith. Said deed contains conditions tad restrictions which. ifSreadjed by the Lodge, will
cause reversion of title to the Inhabitants of the Town of Coctana.
There ere to be located OQ said real estate certain structures and appurtenant improvements .
and
It is the intent ind agreement of the Town and the Lodge that, in the event of reversion of
title to die Town, said structures and improvements are and remain the personal property of the
Lodge.
NOW THEREFORE, for valuable consideration, and pursuant to the provisions of Title
33 M.R.S.A. §455, the parties hereto tgree drat (he aforesaid structures, together with all
appurtenant improvements and fixtures, located on, in or over said real estate, shall be and renuir
personal property of the Lodge, its successors and assigns
' IN WITNESS WHEREOF, the parties hereto luve C2used this instrument to be signed and
sealed this 3^ day of ^^^gT' . 2000.
Witness
Stone-Ewl Lodge #139, Independent
Order of Odd Fellow*
TrcssaGudroe
Notary Public
Commission Expires April 2, 2004
(SEAL)
its Duty
t
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Witness:
Tbe Inhabitants of the 1 own oi L.ormna
/
_
Steven R. Buck, Ojirman, Selectman
Galen P. McK.enftey, Selectman
Roland G. Dorman, HI, SelecUnan
Penobscot Count)
By
Marvin F. Lister. Selectman
STATE OF MAINE
• 200°
. Personally appeared \he above-named Steven R B — k Chairman y.~~.z Selcctir.cr- of the
Town of Conjuia, anc acJcuowlcrdged before ne the foregoiz^ instrxment to r< ."is free act ar.d deed
ir his said capacity ted the free act and de«d of said ir.ur.icipal corporation
• L
'
Nota.-- Public /
PrU'.t 5^
; SOBSC07 COUNT*-
of
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ATTACHMENT 7
EXAMPLE PROGRAMMATIC
AGREEMENTS
-------
EXAMPLE 7-A
REVOLVING FUND
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(EPA) PW-95934563-0
PROGRAMMATIC AGREEMENT
AMONG
THE ENVIRONMENTAL PROTECTION AGENCY,
THE ADVISORY COUNCIL ON HISTORIC PRESERVATION, AND
THE NATIONAL CONFERENCE OF STATE HISTORIC
PRESERVATION OFFICERS
CONCERNING COMPLIANCE WITH
THE NATIONAL HISTORIC PRESERVATION ACT
UNDER
EPA'S STATE WATER POLLUTION CONTROL REVOLVING FUND PROGRAM
WHEREAS, the U.S. Environmental Protection Agency (EPA)
awards capitalization grants to States to establish State
Revolving Fund (SRF) programs within State Agencies (each
hereinafter referred to as "SRF Agency") authorized under the
Clean Water Act (CWA) (33 U.S.C. 1251 et. seq., as amended); and
WHEREAS, the EPA has issued Initial Guidance for the SRF
program (January 1988), Appendix D of which (Attachment 1)
contains criteria for approval of State Environmental Review
Processes (SERPs); and
WHEREAS, Sections 106 and 110(b), (d) and (f) of the
National Historic Preservation Act (NHPA) (16 U.S.C. 470f and
470h-2(b), (d), and (f)) apply to all SRF assistance directly
made available to States by federal capitalization grants (EPA
federal assistance); and
WHEREAS, projects carried out with EPA federal assistance
may have effects on properties included in, or eligible for
inclusion in, the National Register of Historic Places (historic
properties); and
WHEREAS, the EPA has consulted with the Advisory Council on
Historic Preservation (Council) and the National Conference of
State Historic Preservation Officers (NCSHPO) pursuant to Section
800.13 of the regulations (36 CFR Part 800, et seq.) implementing
Sections 106 and 110(f) of the NHPA;
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NOW, THEREFORE, the EPA, the Council, and the NCSHPO agree
that the SRF program shall be administered in accordance with the
following stipulations, which will be deemed to satisfy EPA's
Section 106 and 110(f) responsibilities for all EPA SRF program
actions and SRF Agency program actions undertaken with EPA
federal assistance.
Stipulations
EPA will ensure that the following measures are carried out:
1. Purpose and Applicability.
(a) This Programmatic Agreement [PA] sets forth the
process by which EPA will meet its responsibilities under
Sections 106 and 110(d) and 110(f) of the NHPA with the
assistance of SRF agencies. As such, it sets forth the basis for
SRF Agency review of individual projects that may affect historic
properties, and establishes how EPA will be involved in such
review.
(b) This PA is applicable to the review of CWA Section 212
(wastewater treatment facilities), 319 (non-point source
pollution control) and 320 (estuary protection) projects that
receive EPA federal assistance under an SRF Agency's program.
2. Responsibilities of EPA and SRF Agencies.
In compliance with its responsibilities under the NHPA and
as a condition of its award of any capitalization grant to a
State, EPA shall require that the SRF Agency or another
designated State agency carry out the requirements of 36 CFR
800.4 through 800.6, with reference to 36 CFR 800.1, 800.2,
800.3, 800.8, 800.9, 800.10, 800.11, 800.12 and 800.14 (see 36
CFR Part 800, Attachment 2) and applicable Council standards and
guidelines for all SRF Agency actions that receive EPA federal
assistance. EPA will participate in the process to the extent
mutually agreed upon by the EPA Regional Administrator and the
SRF Agency, but at a minimum, EPA must be notified by the SRF
Agency if after routine consultation or coordination with the
State Historic Preservation Officer (SHPO) disputes remain
pursuant to stipj^jati_on__#_5_.
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3. Use of SRF Certification Reviews and Annual Reviews.
(a) Certification reviews. EPA will review, or re-review
as may be necessary, the certification each State is required to
provide as a part of its initial application for SRF
capitalization grant funding to ensure that:
(1) The State has the authority and capability to carry out
the responsibilities assigned to the SRF Agency as described in
this PA; and
(2) The SRF Agency will carry out such responsibilities.
*
(b) Programmatic coordination and consultation. Whenever
an EPA Regional Administrator prepares for an annual review of an
SRF Agency's program, the EPA Regional Administrator will afford
the appropriate SHPO and the Council the opportunity to comment
on their experiences with EPA's and the SRF Agency's execution of
their respective responsibilities assigned under this PA and the
SRF capitalization grant agreement, and shall consider such
comments in the conduct of its annual review. If problems are
reported with the execution of responsibilities under this PA,
the EPA will consult with the SHPO or the Council and other
interested persons if appropriate, and if mutually agreed that
participation is necessary, the EPA will invite the SHPO or the
Council to participate directly in the EPA's annual review on SRF
program matters involving their jurisdiction or expertise.
(c) Annual reviews. (1) During each annual review of an
SRF Agency's program, the EPA Regional Administrator will ensure
that the SRF Agency is using:
(i) adequate expertise to carry out its responsibilities
consistent with the professional qualifications standards found
in the "Secretary of the Interior's Standards and Guidelines for
Archeology and Historic Preservation" (48 FR 44738-9) (Attachment
3);
(ii) effective mechanisms for carrying out the
responsibilities assigned to it under the capitalization grant
agreement, in accordance with this PA, including those assigned
pursuant to stipulation 2 above;
(iii) effective mechanisms for identifying historic
properties subject to potential effect by SRF Agency actions
using EPA federal assista^ the Council' s
publication: "Identification of Historic Properties: a
Decisionmaking Guide for Managers" (1988) (Attachment 4);
(iv) effective procedures for involving interested parties
and the public in the review process taking into account the
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Council publication: "Public Participation in Section 106
Review: A Guide for Agency Officials" (1989) (Attachment 5); and
(v) effective mechanisms for avoiding, minimizing, or
mitigating adverse effects on historic properties.
(2) The EPA will further ensure that deficiencies noted in
carrying out of responsibilities under this PA and
capitalization grant agreement (including any alternative review
process contained in an approved SERP), as a result of oversight
provided by the Council, SHPO and EPA's annual reviews, are
remedied or effectively rebutted with appropriate documentation.
Notification of deficiencies, suggested remedies affecting the
work of the SRF Agency, and proposed EPA action (if any), shall
be included in the report sent to the SRF Agency at the
conclusion of an annual review. If the report identifies
deficiencies, remedies or actions concerning NHPA compliance, a
copy of those portions of the report will be sent to the
appropriate SHPO and the Council.
4. State/SHPO Consultation/Coordination.
The Regional Administrator will ensure that a State's
capitalization grant agreement provides consultation and
coordination between the SRF Agency and the SHPO that is
consistent with 36 CFR 800.4, 800.5, and 800.14, and with the
guidance outlined in Attachment 6.
5. Dispute Resolution.
(a) Either the SRF Agency or the SHPO may, at its own
discretion, request that the EPA Regional Office and/or the
Council participate in the review of individual SRF projects or
assist in resolving disputes that may arise between the two
State agencies. The EPA and the Council will participate in
reviewing and assisting the State agencies if so requested, and
may participate at their own discretion, when significant issues
are raised from other sources, without such a request.
(b) In situations where disagreements among the SRF Agency
and SHPO cannot be resolved in consultation with either the EPA
Regional Office or the Council, the EPA will be responsible for
resolving the dispute in consultation with the Council in
accordance with 36 CFR 800.4 through 800.6 as applicable.
6. Applicable Guidance.
(a) Implementation of this PA will be guided by Attachments
1 through 6 and such program guidance or regulations as EPA may
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issue subsequently, and the applicable regulations, standards,
guidelines and explanatory bulletins of the Council and the
Department of the Interior.
(b) In consultation with SRF Agencies and the NCSHPO, the
EPA and Council may from time to time jointly develop and provide
SRF Agencies and SHPOs with additional guidance or training.
7. Distribution.
Following the Council's publication of the required notice
of an approved PA in the Federal Register, EPA will distribute
copies of this PA and its attachments to all EPA Regional SRF and
National Environmental Policy Act (NEPA) Coordinators, SRF
Agencies, SHPOs, and requesting parties.
8.
Amendment.
Any party to this PA may request that it be amended,
whereupon the parties will consult pursuant to 36 CFR 800.13 to
consider such amendment.
9. Termination.
Any party to this PA may terminate it by providing ninety
(90) days notice to the other parties, provided that the parties
will consult during the period prior to termination to seek
agreement on amendments or other actions that would avoid
termination. In the event of termination, the EPA will ensure
compliance with 36 CFR 800.4 through 800.6 with regard to
individual undertakings covered by this PA.
Execution of this PA, and carrying out its terms, evidences
that the EPA has satisfied its Section 106 and 110(f)
responsibilities under the NHPA for Title VI of the CWA.
ISTdRIC PRESERVATION
Date:
•ROTECTION AGENCY
F Federal Ativities
Date:
By:
Date:
Director, Offi6e ofMunicipal^Pollution Control
4/ '' '
NATIONAL CONFERENCE OF ST
STORIC PRESERVATION
Date
President
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ATTACHMENT 6:
SRF AGENCY/SHPO COORDINATION
[These do not substitute for 36 CFR 800.4 through 800.6]
(A) Initial project consultation.
(1) Early in a project's planning phase, when project
alternatives are identified which have the potential to affect
historic properties, if any are present, the SRF Agency should,
in conformance with 36 CFR Part 800.4(a)(1)(ii)i, consult with the
SHPO and request their views, comments and advice on: (a) what
further actions may be necessary by the SRF Agency to further
identify and evaluate historic properties; (b) the significance
of all identified historic properties; (c) possible effects on
historic properties; and (d) project alternatives and suggested
mitigation measures where effects are likely.
(2) If within a thirty day period (as provided under 36 CFR
Section 800.l(c)) the SHPO does not respond to the SRF Agency's
request(s), the SRF Agency Shall proceed in accordance with 36
CFR 800.4, et. seq..
(B) Routine consultation.
Following initial contact, SRF Agencies should respond to
the SHPO's views, comments and advice; shall take further actions
as necessary to identify and evaluate historic properties and
assess effects on them; and continue to consult and coordinate
with the SHPO throughout the historic preservation review
process. Where applicable, this review should be integrated with
the SERF process (as defined in Attachment 1).
(C) Transmittal of decision documents.
(1) Prior to making a decision on a project, the SRF Agency
shall notify the SHPO of measures it intends to incorporate in
the project to avoid, minimize, or mitigate effects on historic
properties, which must be consistent with any determinations made
or agreements entered into by the SRF Agency pursuant to 36 CFR
800.4(d), 800.5(d), 800.5(e) (4), 800.5(e)(5), and/or 800.11(a)
as applicable.
(2) The SRF Agency shall provide the SHPO with a copy of
its final ER determination for all SRF projects that have
involved consultation and coordination pursuant to 36 CR Part 800
et. seq. and the Programmatic Agreement among EPA, the Advisory
Council on Historic Preservation, and the National Conference of
~~SHPOs. '• : "
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(3) In addition, the SRF Agency will routinely notify the
SHPO that appropriate documentation regarding SRF 212 projects
funded with EPA federal assistance that may affect historic
properties is available whenever:
(i) A Draft ER document is finalized; or
(ii) Significant new information relevant to the project's
environmental determination is identified, or significant changes
to the project plan is made, following the issuance of a Final
Determination (ER decision document), but prior to completion of
construction,; or
(iii) A mandatory five-year reassessment of a previously
issued environmental determination has been conducted on
projects and, as requested or otherwise agreed between the SRF
Agency and SHPO, provide the SHPO with copies of such
documentation.
(4) Appropriate documentation should also be provided the
SHPO at similar intervals ,for 319 and 320 projects funded with
EPA federal assistance that may affect historic properties.
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EXAMPLE 7-B
UPPER CLARK FORK
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SECOND PROGRAMMATIC AGREEMENT
AMONG
THE ENVIRONMENTAL PROTECTION AGENCY
REGION Vm MONTANA OFFICE,
THE ADVISORY COUNCIL ON HISTORIC PRESERVATION,
THE MONTANA STATE HISTORIC PRESERVATION OFFICE,
MONTANA DEPARTMENT OF HEALTH AND ENVIRONMENTAL SCDINCES,
LOCAL GOVERNMENTS OF
BUTTE/SILVER BOW AND ANACONDA/DEER LODGE, AND WALKERVHXE,
AND ARCO
REGARDING IMPLEMENTATION OF THE CERCLA RELATED ELEMENTS OF
THE UPPER CLARK FORK RIVER BASIN
REGIONAL HISTORIC PRESERVATION PLAN
Whereas, the U.S. Environmental Protection Agency (EPA), in cooperation with the State
of Montana administers the Superfund program, in the Clark Fork River basin under provisions
of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA),
42 U.S.C. 9601 et seq.T as amended by the Superfund Amendments and Reauthorization Act
(SARA) of 1986 (P.L. 99-499); and
Whereas, EPA has promulgated a National Oil and Hazardous Substances Pollution
Contingency Plan (NCP) (40 CFR Part 300, et. seq.) implementing CERCLA which, among a
number of things, addresses EPA's responsibility to comply with Applicable or Relevant and
Appropriate Requirements (ARARs); and
Whereas, actions conducted under CERCLA qualify as undertakings pursuant to Section
301(7) of the National Historic Preservation Act (NHPA), and are subject to 36 CFR Part 800,
implementing Section 106 of the NHPA (16 U.S. C. 470f), and Section 110 (f) of the same Act
16 U.S.C. 470h-2(f); and
Whereas, the EPA, in cooperation with the Montana Department of Health and
Environmental Sciences, proposes to conduct removal and remedial actions at Superfund sites
in the Upper Clark Fork River Basin, the Area of Potential Effects (APE), under provisions of
—CERCLA; and -
Whereas, the Butte/Silver Bow and Anaconda/Deer Lodge areas of the Upper Clark Fork
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05/17/UU
River Basin are the site of more than 100 years of living history of the early development of
natural resources and industrialization of America and, include a designated National Historic
Landmark, "arguably the nation's quintessential mining town, Butte" (Advisory Council on.
Historic Preservation 1990); and
Whereas, the EPA has determined that actions carried out under CERCLA may have an
effect on the National Historic Landmark and other historic properties included in or eligible for
inclusion on the National Register of Historic Places, and has consulted with the Advisory
Council on Historic Preservation ("Council") and the Montana State Historic Preservation Office
("SHPO"), the Community Historic Preservation Officers (CHPOs) in Butte/Silver Bow and
Anaconda/Deer Lodge, pursuant to 36 CFR § 800.13 of the regulations (36 CFR Part 800)
implementing Section 106 of the NHPA; and
Whereas, the Butte/Silver Bow Historic preservation office (BSB/SHPO), representing
the City/County government of Butte/Silver Bow (BSB) and Walkerville, the Anaconda/Deer
Lodge Historic Preservation Office (A/DLHPO), representing the City/County government of
Anaconda/Deer Lodge (ADL), the local government of Walkerville, the Montana Department
of Health and Environmental Sciences, and ARCO, a Potentially Responsible Party, participated
in consultation and have been invited to concur in this Programmatic Agreement; and
Whereas, based on a common concern among the parties to this agreement, a Regional
Historic Preservation -Plan -(RHPP) ...wasldeyeloped, pursuant to the terms of the 1992
Programmatic Agreement; and
Whereas, the RHPP identified and defined important historic properties throughout the
Upper Clark Fork Basin, and recommended the development of the Butte-Anaconda Mining
Heritage Park as a major destination visitor attraction; and
Whereas, a comprehensive matrix (Attachment A) was derived from the RHPP for
potential Superfund remediation impacts to historic properties in the Upper Clark Fork Basin;
and
Whereas, ARCO as a Potentially Responsible Party (PRP) has entered into an agreement
"with EPA to developTesponsesHo-See^n4436ibr4hose«onstruction-sites -whereit is_performing
or will perform response activities under CERCLA, and has been invited to concur in this
agreement;..and
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Whereas, the definitions provided at 36 CFR § 800.2 are applicable throughout this
Programmatic Agreement unless otherwise defined;
Whereas, ARCO provided $250,000 to develop the KHPP and to initiate efforts to meet
Sections 106 and 110(f) requirements of the NHPA; and
. Now, therefore, the EPA shall be administer the program in accordance with the
following stipulations to satisfy the requirements of Sections 106 and 110(f) of the NHPA.
STIPULATIONS
The EPA shall ensure that the following measures are carried out.
1. QUALIFICATIONS
EPA will ensure that the on-site EPA and MDHES construction oversite representative
will be instructed by a cultural resource specialist meeting the Secretary of Interior's
Professional Qualification Standards (48 FR 44738-0) in order to effectively implement the
provisions of this agreement. EPA will also ensure that qualified consultants are available on
an on-call basis to respond to discoveries as described in Stipulation 5 and also assist EPA in
the implementation of this agreement.
2. MITIGATION
The evaluation of the historic properties for purposes of compliance with Sections 106
and 110(f) of the NHPA is contained in the RHPP. This evaluation (Attachment A) is the basis
for the mitigation actions included in this agreement. .
A. Based on the evaluation of the historic properties the following actions have been
agreed to: .
1. At most construction sites, the historic property will be avoided by the
response action remedy. These historic properties are listed in Attachment
Btothis_PA
2. At some construction sites, on-site mitigation will be incorporated into the
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design of the remedial action. The on-site historic properties are listed in
Attachment C to this PA. The on-site mitigation will be based on the
guidelines in the RHPP, the performance role identified in Attachment A
for the specific site and the Process outlined in Stipulation 3, below.
Only those historic properties specified for such treatment or undiscovered
historic properties will be subject to the Process.
3. For those historic properties that cannot be avoided and where there has
been agreement by the signatories of this Second Programmatic
Agreement that impact may occur; off-site mitigation as described in the
following section will be conducted. These historic properties are listed
in Attachment D to this PA.
B. All proposed remedial actions (including investigations, design, and construction)
taken in areas containing historic properties will be subject to the normal Superfund
public involvement process. (See Attachment E )
3. PROCESS
Throughout the following process, the EPA will make every effort to reach consensus
at all decision points. However, if any party to this agreement objects to any proposed action,
the EPA will resolve the dispute in accordance with Stipulation 6, Dispute Resolution.
Attachment C contains a list of the construction sites for which on-site mitigation is considered
appropriate. The following process outlines when and how the objectives for on-site mitigation
for these sites will be incorporated into the Superfund remediation process. Additionally, if any
historic property listed on Attachment B can not be avoided as planned, this process shall also
apply.
9/14/94
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ua/
A. Consideration of Historic Properties during Superf und Studies
As studies progress through the Superfund process, consideration of historic
properties will be an integral part of the consideration and evaluation of remedial
alternatives. Consultation with the CHPOs will be initiated by EPA during the
response action process.
B. Remedial Design Work Plans
As a remedial design ("RD") work plan for a specific remedial action is
developed, consideration of historic properties will be included as an integral part
of the design. The EPA will invite the CHPOs to participate actively in the
development of work plans as they relate to potential effects, and on-site
mitigation of effects to historic properties. The development of remedial design
work plans shall accommodate CHPO concerns to the extent feasible. The EPA
will provide the CHPOs 15 working days to review and comment on each work
plan and the adequacy of mitigation efforts for those sites listed on Attachment
C.
C. Final Remedial Design
The EPA will invite the CHPO's to participate in the development of final
remedial design plans as they relate to potential impacts and on-site mitigation of
impacts to historic properties. It is expected that a consensus will be reached on
the final design. However, as noted under dispute resolution, if the CHPOs
object to the final design within thirty (30) days of receipt of the final design EPA
must consult with the CHPO and others to attempt to resolve the dispute in
accordance with Stipulation 6. The final decision is EPA's under the NHPA.
The remedial design will adhere to the RD work plan provisions. If deviations
from the work plan affecting the on-site mitigation are necessary due to technical
or engineering constraints, the EPA will attempt to reach a consensus decision
without undue delay in the design process., Although design for remediation of
a particular Superfund project-may relate toonly^^ortion of a^iistoric property
in the area, the design will attempt to be consistent with the specific purpose or
. larger context in which the historic property is situated pursuant to the RHPP.
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05/1V/UU
The Administrative Order on Consent, Unilateral Order, or Consent Decree gives
EPA or MDHES authority to ensure that the construction of a remedy follows the
remedial design plan. If reclamation work occurs in such a way that work plans
are not followed and historic property is harmed, EPA will consult with the
relevant CHPO and the PRP to determine what corrective actions may be
necessary. EPA shall ensure corrective actions are consistent with the RHPP and
are completed. EPA will also determine why the failure to follow specifications
occurred and change personnel or procedures. This will be documented by the
EPA in a letter to all other affected parties to provide a written record of
decisions.
D. Implementation
Weekly, or as appropriate based on level of activity, EPA will hold meetings to
review the upcoming week's construction activities. These meetings will also be
used to identify any pertinent activities related to the historic properties elements
as they relate to the agreed to final design plan for the construction site.
Representatives of the PRP, EPA, MDHES, CHPO, contractor, and other
representatives of appropriate agencies (public works, state or federal agencies)
will have a standing invitation to attend these meetings. The PRP will distribute
minutes from each meeting to all interested parties so construction progress can
be tracked at a given construction site at any given point in time.
In addition to weekly construction meetings, daily oversight may be provided by
any representative of any of the parties. Safety certification must be obtained by
any on-site observer, and safety plans must be followed.
4. OFF-SITE MITIGATION
Based on the RHPP and the jointly developed matrix of Attachment A, the unavoidable
effects of potential Superfund remedial actions shall be mitigated as described below:
ARCO and the affected communities and the signatories to this PA agree that the
following actions along with on-site mitigation fully mitigate for all unavoidable impacts
~" or losses of kniownTnstoric^pfbpertiesTrl BSB and. ADL counties.
., A. Butte-Silver Bow
•6- 9/14/94
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UO/1//UU X O : £ O 4J IUUIOi.0000
(1.) At the Lower Area One ("LAO") construction site, ARCO, in
consultation with BSB, shall develop and incorporate into the final design
for the area and shall construct recreation and historic interpretive
facilities. The attached map, LAO Conceptual Reclamation Plan, July
1993, identifies the actions to be taken and the facilities to be built.
(2.) ARCO will transfer the title of the land adjacent to the LAO site
(west of the KOA campground along George Street, see map), subject to
specific land use restrictions, to Butte-Silver Bow for a proposed visitor
and information center.
(3.) ARCO will provide Butte-Silver Bow with $100,000 cash payment
toward the development of the proposed visitor center. This cash payment
shall be used for the express purposes of constructing the proposed visitor
center and developing the historic interpretation elements and heritage
park information (as per the constellation/gateway concept outlined in the
RHPP) at the proposed visitor center.
(4.) ARCO will connect the visitor center/gateway from its location on
George Street to the LAO area by constructing a bike/pedestrian path.
(5.) As EPA, BSB, MDHES, and ARCO develop Institutional Controls
necessary to supplement engineering remedies, additional elements of the
Butte-Anaconda Mining Heritage Park as outlined in the RHPP will be
given consideration for inclusion in the remedial design work plans at all
operable units in the BSB area to be remediated in the future.
B. Anaconda-Deer Lodge
1. ARCO will provide to Anaconda Deer Lodge the sum of $33,000 as
matching funds for completion of a Community Architectural and
Historical Survey of historic properties in Anaconda.
2. ARCO will provide matching funds in the amount of $5,000 to ADL for
the Historical Data Presentation grant.
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3. ARCO, in consultation with ADL, shall design and construct an
interpretive trail at the Old Works. The trail shall include
interpretive signage detailing the history of smelting in Anaconda;
including discussions of natural resources, smelting sites, facilities,
technologies and the remaining features/landscapes. There will be
an Upper Works Trail and Lower Trail system which includes the
following:
• Upper Works Trail
• Trail construction (approximately 4,600 feet)
• Fencing of the trail site and historic properties as
necessary
• Interpretative stations (3 basic sign stations, 1 sign
rest area station, 1 sign shelter station, 1 kiosk)
• Interpretive signing of historic properties
• Amenities (20 car parking lot, access gate,
landscaping, (2) toilets, (2) picnic tables, (2) trash
cans)
• Lower Trail System
• Trail construction (crushed limerbck and slag) from
Cedar Street to Galen Road
• Interpretative stations (1 basic sign station, 1 sign
shelter station)
(3.) As EPA, ADL, MDHES, and ARCO develop Institutional Controls
necessary-to-supplement engineering remedies,-additional elements of the"
Butte-Anaconda Mining Heritage Park as outlined in the RHPP will be
given consideration for inclusion in the remedial design work plans at all
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operable units in the ADL area to be remediated in the future.
5. UNDISCOVERED and UNDOCUMENTED HISTORIC PROPERTIES
During construction activities, undiscovered and undocumented historic properties may
be encountered. In such event, the EPA will ensure the following procedures are carried out:
A. For all unknown and undocumented historic properties discovered during response
actions, the on-site EPA or MDHES representative will stop construction
activities in the immediate area of the find to the extent such stoppage will not
create an undue risk of harm to human health or the environment and notify the
designated "on-call" qualified historian or archaeologist who has previously been
contracted with to provide this service. The archaeologist/historian will examine
the find, verify its significance, and conduct preliminary recordation, as
necessary.
Within a maximum of four hours of the identification of a historic property
judged to be significant, all available participating parties to this agreement will
be notified. The CHPO or a representative shall visit the discovery within at
least one business day to recommend how the historic property should be treated:
avoided, mitigated on-site, mitigation off-site, or receive additional recordation.
B. Within a business day, EPA will consider the findings of the
archeologist/historian and the recommendations of the CHPO and make a final
determination on actions to be taken. EPA will consult with the PRP and the
CHPO's before finalizing their decision. All decisions will be documented to the
parties to this agreement by EPA and become part of the record. As with dispute
resolution, all EPA decisions are final, pursuant to Superfund authority.
C. As construction proceeds, it may be necessary to make "field judgements". For
example, safety of workers will sometimes require action before the
archaeologist/historian can respond. Every effort will be made by all parties to
respond as quickly as possible utilizing back-up personnel if necessary. EPA will
make .every._.^grt_jp.....ayoid_j|^on_.befQre._.tiie_. affected _ parties. __pr_ .their
representatives can respond. These decisions will be included in the annual
.. reports.
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6. DISPUTE RESOLUTION
Unless otherwise specified under the terms of this agreement, should, any party to this
agreement object within thirty (30) days after receipt to any plans, specifications, contracts, or
other documents provided for review pursuant to this agreement, or to the manner in which this
agreement is being implemented, EPA shall consult with the objecting party to resolve the
objection. If EPA determines that the objection cannot be resolved, EPA shall forward all
documentation relevant to the dispute to the Council. Within thirty (30) days after receipt of all
pertinent documentation, the Council will either:
A. Provide EPA with recommendations, which EPA will take into account in
reaching a final decision regarding the dispute; or
B. Notify EPA that it will comment pursuant to 36 CFR § 800.6(b) and proceed to
comment. Any Council comment provided in response to such a request will be
taken into account by EPA hi accordance with 36 CFR § 800.6(c)(2) with
reference to the subject of the dispute.
C. At any time during implementation of the measures stipulated in this Agreement,
should an objection to any such measure or its manner of implementation be
raised by a member of the public, the CHPO, or local governments, the EPA will
take the objection into account and consult as needed with the objecting party, the
SHPO, the CHPO, or the Council to resolve the objection. EPA may request the
further comments of the Council pursuant to 36 CFR § 800.6(b). Any Council
comment provided in response to such a request will be taken into account by the
EPA in accordance with 36 CFR § 800.6(c)(2) with reference to the subject of
the dispute.
7. AVAILABILITY OF CHPO
In the event that a CHPO is unable to carry out its review responsibilities under the
terms of this agreement, or such position is eliminated by the local governing body, the
SHPO will assume the CHPO's responsibilities pending reinstatement of the CHPO and
resumption of 4he CHPO^s jeview-iole. _3he CHPO will be ^responsible -to .notify EPA
and SHPO that the position is unavailable or has been eliminated.
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8. MONITORING
The Council, SHPO, CHPOs, may monitor activities carried out pursuant to this
Programmatic Agreement, and the Council will review such activities if so requested. EPA,
ARCO and other PRP's will cooperate with the Council, the SHPO, and the CHPOs in carrying
out their monitoring and review responsibilities.
9. ANNUAL REPORT
A. On an annual basis, the EPA will submit to the parties to this agreement a report
of all actions carried out under the terms, and EPA's assessment of the
effectiveness of the agreement. Such reports will summarize all such actions
conducted during the previous fiscal year.based in part on monthly progress
reports submitted to EPA by ARCO, and shall be submitted to the parties to this
agreement no later than January 1 of each year that the agreement remains in
effect.
B. Within 30 days of receipt of the annual report, the parties to this agreement shall
consult to determine whether a meeting of the parties is needed to review EPA's
actions and the effectiveness of the terms of the agreement.
10. ADMINISTRATIVE STIPULATIONS
A. Amendment
Any party to this agreement may request that it be amended, whereupon the parties will
consult in accordance with 36 CFR § 800.13 to consider such amendment.
B. Failure to Perform
In the event any party to this agreement believes that the EPA is not carrying out the
terms of the agreement, the party may request that the agreement be terminated by providing
90 days notice to the other parties. All parties will consult during the 90 day period to seek
agreement on amendments or other actions that would avoid termination.
C. Termination
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In the event that during the 90 day consultation period described above, no agreement
can be leached on amendments or other actions, EPA and the Council will determine if this
agreement will be terminated. The EPA, in consultation with the Council, will then consider
all actions completed under this agreement, and make final decisions on how EPA will further
comply with 36 CFR §§ 800.4 through 800.6, if further compliance is required. Completed and
approved funding or implementation of actions described in this agreement will be fully
considered by EPA in making such determinations.
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ADVISORY COUJJ^IL ON HISTORIC PRESERVATION
Date:
ENVIRONMENTAL PROTECTION AGENCY REGION VEI MONTANA OFFICE
i. L'DO
MONTANA STATE ffiSTORIC PRESERVATION OFFICER.
By:
Date:
MONTANA DEPARTMENT OF HEALTH AND ENVIRONMENTAL SCIENCES
By:
Date:
OF BUTTE/SILVER BOW
CLERK & RECORDER
LOCAL GOVERNMENT OF ANACONDA/DEER LODGE
LOCAL GOVERNMENT OF WALKERVILLE
Date:
.13.
9/14/94
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ARCO
ConouFi
-Dyr
OTHER PRP's
By:
Date:
Date:
Date:
,.
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9/14/94
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UO/ A ( / UU
ATTACHMENT A
Selected Historic Properties Located
Within the Upper Clark Fork Basin Superfund Construction Sites
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ATTACHMENT B
Historic Properties That Which No Impact Is Expected1
Matrix Number2
Silver Bow Creek 3,4
Rocker 6
Milwaukee Railroad 7
BA&P Railroad 8
Dublin Gulch 9
Missoula Gulch 10
Orphan Boy 11
Blue Bird Trail 12
Buffalo Gulch 13
Bluebird Mill 16
Yellow Ditch 17
Alice Mine/Mill . 18
Washoe Reduction Works/Stack 25
Slag Piles 26
Anaconda Ponds 27
Mill Creek Community 28
Opportunity Ponds 30
Missoula Mine 33
Mt. Con 34
Syndicate Pit / Lexington Tunnel 35
Alice Pit / Knob 37
Railroad through Butte 39
Ophir Mine Yard 40
It should be noted that the normal Superfiind public involvement process applies to all historic properties.
2From Attachment A
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ATTACHMENT C
Historic Properties That Will Receive
On-Site IMitigation and be subject to the Process as per Stipulation 3
Historic Properties
Original Mine Yard
Teddy Bear Placer
First Gold Strike
Lower Area One (Colorado Tailings/Butte Reduction Wprks)
Belmont
Old Works
Red Sands Area
Anselmo Central Timber Yard
Steward Mine Yard
Matrix Number3
14
19
21
22
23
29
32
36
From Attachment A
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ATTACHMENT D4
Historic Properties That May Be Impacted
And If So, Will Be Included In The Off-Site Mitigation Package
Historic Properties Matrix Number*
Silver Bow Creek 3,4
Rocker 6
Milwaukee Railroad 7
BA&P Railroad 8
Dublin Gulch 9
Missoula Gulch 10
Orphan Boy . 11
Blue Bird Trail 12
Buffalo Gulch 13
Other Placers 15*
Bluebird Mill 16
Yellow Ditch 17
Alice Mine/MiU 18
Lower Area One (Colorado Tailings/Butte Reduction Works) 21
Old Works 23
Warm Springs Ponds 24
Washoe Reduction Works/Stack 25
Skg Piles 26
Anaconda Ponds 27
Mill Creek Community 28
Red Sands Area 29
Opportunity Ponds 30
Butte Smelters 31*
Missoula Mine 33
Mt. Con 34
Syndicate Pit / Lexington Tunnel 35
It .should be noted that all historic properties will be subject to the normal Superfund public involvement process.
From Attachment A
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ATTACHMENT D' (continued)
Historic Properties Matrix Number7
Steward Mine Yard 36
Alice Pit / Knob 37
Mining Landscape 38*
Railroad through Butte 39
Ophir Mine Yard 40
Smelter Hill n/a
* Historic Properties that will be impacted and are included in the off-site mitigation
package.
It should be noted that all historic properties will be subject to the normal Superfund public involvement process.
From Attachment A
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SITES WHERE THERE WILL BE SUPERFUND IMPACT
f
1
2
3
I
4
q
6
7
srrE
Travona
Original
Silver Bow
Creek-Pre
History Site
Silver Bow
Creek
Drainage
Lexington
Mine and Mill
Rocker
Milwaukee
Road
CONSTELLATION
Pre-History, Richest Hill,
Gold & SUver
Pre-History, Reclamation,
Richest Hill
Pre- History
Pre-History
Cold and Silver,
Reclamation, Richest Hill
Cold and Silver,
Reclamation
Gold and Silver, Smelting
OPERABLE UNIT
PS TCRA, PS ERA and
Rl/FS (stormwatex)
PS OU-PS Rl/FS
(storm water)
Strcamside
»
Strcamside
Walkerville TCRA; PS
Rl/FS mine yard-
storm water
Rocker TCRA, Rodcer
Rl/FS
Butto sections PS Rl/FS,
rest Srreamside
PERFORMANCE
ROLE
Participatory
Participatory
Dormant
Survey
Participatory
Participatory
Controlled
Participatory
Refer to
attach-
ments B,
CorD
Complete
C
B&D
Complete
Complete
B&D
B&D
NOTES
Resources were avoided during TCRA, no: much left except the head frame, a
building was moved to this site from anotner mine yard. Need to protect access to
shaft for maintenance of pump. If future .ictions are required the resources will be
avoided.
ARCO did early reclamation work which .'veeds to be re-evaluated. May need to do
further soil reclamation and stormwater. some resources may be lost due to
slormwater considerations. Note-Our L*ly of Rockies Foundation uses this mine
yard to build and maintain their equipment and as storage. May be asbestos in the
remaining mine buildings.
Depending on exactly where this area may be and what is left the actions of
Strcamside Tailings may drastically change creek or area. It may not be possible to
avoid resources; although there may not t« much left. On-site mitigation agreed to
but not yet completed.
Depending on exactly where this aiea may be and what is left the actions of
Streamside Tailings may drastically chanf
-------
Attachment E
Public Involvement in Superfund
*
**
***
Study
RI/FS
Scoping
E
Risk Assessment
Scoping
Conduct
DEC
Varies
Draft RI
DE
Alternative
Screening
DE
RI/F
S
Remedy Selection
Proposed
Plan
BF
BDEF
ROD
E
*»**
Consent
Decree
Negotiation
-
-
••
[ Implementation
RD
Fact Sheet -
Public
Briefing
Fact Sheet -
DG
Public
Briefing '
RA
. - ,
G
E
Initiate
RA
A General public review & comment without response to comments
B ' General public review & comment with response to comments
C Special public work group review and comment without response to comments
D Special public work group meetings (MTAC, CTEC, CWG, etc.)
E General public information meeting
F Formal public hearing with responsiveness summary
G Meeting upon request (Applies throughout the process)
**
***
Statutory public involvement requirement
Current (MO public involvement practice)
Potential additional public involvement
****
Hay include RD briefing
-------
*
8
9
10
11
12
13
14
15
16
17
18
SITE
BA&P
Corridor .
Dublin Gulch
(Town)
Missoula
Gulch
Orphan Boy
Prospect-
Glory Holes/
Bluebird Trail
Buffalo Gulch
Teddy Bear •
Placer
Other Placers
Bluebird Mill
Yellow Ditch
Alice Mine
and Mill
CONSTELLATION
Gold and Silver, Richest
Hill, Smelting
Gold and Silver, Richest Hill
Gold and Silver
Gold and Silver, Richest Hill
Gold and Silver, Richest Hill
Gold and SUver
Gold and Silver
Gold and Silver
Gold and Silver
Gold and Silver
Gold and Silver
OPERABLE UNIT
Butte sections— PS
RI/FS; Shrcamside, and
Anaconda
PS ERA, and PS RI/FS
PS Rl/FS and LAO
(bottom)
Non-Priority Soils
»
Non-Priority SoiJs
PS Rl/FS
Streamside
Streamside
Non-PS OU
Streamside
Walkerville TCRA, PS
RI/FS sbormwatcr
PERFORMANCE ROLE
Controlled Participatory
Controlled Participatory
Controlled Participatory
Controlled Participatory
Controlled Participatory
Controlled Participatory
Controlled Participatory
Controlled Participatory
Observed
Observed
Observed
Attach-
ments B,
C,orD
B&D
B&D
B&D
B&D
B&D
B& D
C
D
B&D
B&D
Complete
NOTES
Burte sections-railroad bed most lilely will remain the same.
There may be, however, the necessiy to destroy, move or change
some trestles such as the trestle in lower Area One. This may
necessitate some off-site mitigation. Streamside sections and
Anaconda-railroad bed will remair, therefore should be able to
avoid resource.
May be some residential yards undir PS ERA. May be some off-
site mitigation required as part of tie mitigation package for loss of
mining landscape. '
Walkerville TCRA did photodoaraenfation, inventories, and
Granite Mountain signs. May be sune off-site mitigation required
as part of the mitigation package fir loss of mining landscape.
DSL dosed shaft, may require stonnwater and soils reclamation.
Should be able to avoid resources. Some off-site may be required.
Numerous shafts of various depth; and size. May require shaft
closures. The few resources left mist likely could be avoided,
although it may be necessary to d< some off-site mitigation.
May be some off-site mitigation re[uired as part of the mitigation
package for loss of mining landscape. Depending on action for
RI/FS these gulches may be drasti ally changed.
Depending upon action under Stnamsidc, this may be drastically
changed. Resources should be avi ided, however may require some
on-site mitigation.
Depending upon action under Stnamside this may drastically
changed. Resources should be avoided, however may require some
off-site mitigation.
As this is a former mill site there nay be elevated levels of mercury
as well as lead and arsenic. Very little left so should be able to
avoid resources, although may rejuire some off-site mitigation.
Very little left so should be able ti avoid resources, although may
require some off-site mitigation.
Walkerville TCRA did photodocu mentation, inventories, and
Granite Mountain signs. '
Ontt
-------
f
19
20
21
22
23
24
25
26
SITE
Pint Cold
Strike
Emma Mine
Yard
Burte
Reduction
Works/
Colorado
Tailings
Belmont
Old Works
Golf Course
(Upper and
Lower Works)
Warm Springs
Ponds
Was hoe
Reduction
Works/ stack
Slag Piles
CONSTELLATION
Cold and Silver
Reclamation, Richest Hill
Reclamation, Smelting
Reclamation, Richest Hill
Reclamation, Smelting
Reclamation
Reclamation, Smelting
Reclamation, Smelting
OPERABLE UNIT
Streamside
PSRI/FS
Lower Area One ERA
PSRI/FS
Anaconda OW/EADA
Rl/FS
Warm Springs Ponds
Anaconda
Anaconda Regional
water and waste
PERFORMANCE ROLE
Dormant
Participatory
Participatory
Participatory
Controlled Participatory
Controlled Participatory
Controlled Participatory
Observed
Attach-
ment B,
C, orD
C
Complete
C&D
C
CiD
C&D
B&D
B&D
NOTES
There is very little left here. Shoul d be able to avoid, however may
require some on-site mitigation.
BSB did reclamation under an. RTF grant Stormwater will be under
PS Rl/FS, however should not cha nge anything that is left DSL
dosed shaft (Historic Properties fc anagement Plan mitigation for
this.) ;
Most of slag walls will .remain, altl tough some sections will be
removed necessitating on-site mitigation. Most of water flumes will
remain although again, some 6n-si e mitigation will be required.
Foundations, loading platforms otl er significant resources will '
remain and be avoided. ;
ARCO did early reclamation rot u »der Superfund. Inland
Properties has done stormwator re 'lamation not under Superfund.
Mine yard may necessitate some o »-site mitigation. Early work
win be reviewed under PS Rl/FS.
Proposed interpretive trail will ser -e as on-site mitigation. Other
resources may be avoided dependi >g upon Rl/FS decisions.
1
Historic inventory completed as pi rt of previous work. Future
work will avoid resources, althoug > reclamation may require some
on-site mitigation. On-sire mitigat in agreed to but not yet
completed. '
Avoidance of few remaining struci ires where possible. Final
remedy may require off-site mitigs Jon. Stack will remain.
Depending upon the final rerr«dy lecision most resources should
be avoided, however may need so: « off-site mitigation.
aft
purnber 8,1994
-------
*
27
28
M
30
31
32
33
34
35
SITE
Anaconda
Ponds
Mill Creek
Community
Red Sands
Area
Opportunity
Ponds
Butte Smelters
Anselmo/
Central
Timber Yard
Missoula
Mine
Mountain Con
Syndicate Pit
CONSTELLATION
Reclamation, Smelting
Reclamation, Smelting
Smelting
Reclamation. Smelting
Smelting
Richest Hill
Richest Hill
Richest Hill
Richest Hill
OPERABLE UNIT
Anaconda Regional
Water and Waste RI/FS
Anaconda Soils RI/FS
Anaconda OW/EADA
RI/FS
Anaconda Regional
Water and Waste RI/FS
Colorado Smelter TCRA,
PS RI/FS and Active
Mine
Anselmo TCRA. PS
RI/FS stormwater
PS RI/FS, WalkerviUe
TCRA
PS RI/FS, Dumps in PS
ERA
PS ERA, PS RI/FS
PERFORMANCE ROLE
Observed
Dormant
Controlled Participatory
Observed
Dormant
Participatory
Participatory
Participatory
Participatory
Attach-
ments B,
CorD
BiD
B&D
Ctc D
BiD
D
C
B& D
B&D
B&D
NOTES I
t :
Depending on final remedy may need some off-site mitigation.
Should be able to avoid most rest mrces.
Most structures already removed under Mill Creek removal. May
need some off-site mitigation.!
.
Most resources can be avoided, h jwever depending upon the
remedy the landscape may be ch. nged requiring off-site mitigation.
Colorado Smelter TCRA did inve itories and avoided foundations.
Little remaining of other smellers in Butte- Should be able to
mitigate off-site as part of total p. ckage for loss of mining
landscape. Some smelters locatec in active area will be under DSL
reclamation.
BSB KIT funds removed asbestos, put new roofs and windows on
some of the buildings. DSL dose 1 shaft and did some reclamation;
dumps to south of mine yard; wh re done by ARCO. Most _ . _ .
resources were avoided during T< HA, some on-site mitigation
occurred. Stormwater drainage s dl a problem. May need to still
do some on-site mitigation.
Most resources can be avoided; n ly still need some off-site
mitigation.
Some reclamation work complete! by ARCO, reclamation study
being completed as part of PS ER i, stormwater PS RI/FS. Mine
buildings in mine yard may cone n asbestos. Resources will be
avoided. :
Dumps upgradient of pit are part jf PS ERA, stormwater under PS
RI/FS. Mine permit includes pit . nd underground areas, there/ore
reclamation will be under DSL.
nft
ftaa.ver S. 1994
-------
#
36
37
38
39
40
SITE
Steward Mine Yard
Alice Pit and Knob
Mining Landscape
Waste Dumps/
Mine Yards
Neighborhoods
(throughout Butte)
Railroads throughout
Butte (Milwaukee,
Great Northern,
Northern Pacific)
Ophir Mine Yard
CONSTELLATION
Richest Hill
Richest Hill
Reclamation,
Richest Hill
Richest Hill
Richest Hill
OPERABLE UNIT
PS TCRA, PS RI/FS
PS ERA, PS Rl/FS
PS ERA, PS Rl/FS, Non-
PS RI/FS, Active Mine
OU
PS Rl/FS,
PS ERA, PS Rl/FS
PERFORMANCE ROLE
Controlled Participatory
Observed
Observed (Neighborhoods,
and Mining Landscape)
Controlled Participatory
(Waste Dumps/Mine Yards)
Observed
Dormant
Attach-
ment B,
CorD
C&D
B&D
D
B&D
B&D
NOTES
PS TCRA did partial reclamation, mitigation was
photodocumentation. Resources in inine yard will be avoided,
however may need some off-site miiigation due to stormwater
actions. May be asbestos present in mine buildings.
PS ERA will address Alice Knob. May change shape of knob
drastically therefore will need to do some off-site mitigation.
Stormwater remedy may also change landscape requiring some off-
site mitigation. Should be pan of brtal package for loss of mining
landscape.
There will be a change to the -mining landscape in the sections of
the community that are in the PS CU. The active mine area falls
under DSL reclamation and most lUely will not be changed. The
proposed off-site mitigation package should take into account the
loss of this landscape, although \ai\f areas of the community (the
active mine area) will remain the sine. Some reclamation has
taken place under Butte TCRAs. P.5 era will address residential
yards and 'remaining dumps.
Railroad beds most likely will remiin the same. There may be,
however, the necessity to destroy, inove or change some trestles or
associated railroad banks, therefon some off-site mitigation may be
f necessary.
Few remaining resources. Mine yz rd will be addressed under PS
ERA, stormwater under PS RI/FS. Most resources can be avoided,
may need some off-site mitigation.
Dnft
, 1994
-------
EXAMPLE 7-C
NANSEMOND ORDNANCE DEPOT
-------
PROGRAMMATIC AGREEMENT
AMONG
THE NORFOLK DISTRICT, U.S. ARMY CORPS OF ENGINEERS,
REGION III, THE ENVIRONMENTAL PROTECTION AGENCY,
AND
THE VIRGINIA DEPARTMENT OF HISTORIC RESOURCES
SUBMITTED TO THE ADVISORY COUNCIL ON HISTORIC PRESERVATION
PURSUANT TO 36 CFR §800.14 (b)
WHEREAS, the Norfolk District (District), U.S. Army Corps of Engineers and the Envrionmental
Protection Agency, Region III (EPA) are conducting cleanup of ordnance, other unexploded safety hazards
and other hazardous substances at the Former Nansemond Ordnance Depot (FNOD) under the authority of
the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended
(CERCLA),42 U.S.C. § § 9601 et seq.. and other authorities; and
WHERAS, the FNOD consists of 975+ acres on the south shore of the James River, east of the
interesection of the Nansemond River with the James, in the City of Suffolk, Virginia (as shown on the
attached map), and was used by the Department of Defense between 1917 and 1960; and
WHEREAS, the District and EPA have determined that this project is an undertaking under Section 106 of
the National Historic Preservation Act that may have an effect on historic properties, specifically
archaeological sites and have consulted with the the Virginia State Historic Preservation Officer (SHPO)
pursuant to Section 800.14 of the regulations (36 CFR Part 800) implementing Section 106 of the National
Historic Preservation Act (NHPA); (16 U.S.C. 470f), and have invited the Advisory Council on Historic
Preservation (Council) to participate in the consultation; and
WHEREAS the District has prepared a report on the general historic background and contexts of the
FNOD project area, entitled Phase la Historical and Archaeological Assessment of the 1,000-Acre Former
Nansemond Ordnance Depot, City of Suffolk, Virginia (McDonald and Givens 1996) and the District and
the EPA have prepared an Archaeological Work Plan which provides procedures for inventory and
evaluation of archaeological resources as part of all project planning and execution activities for the
FNOD, and is included with this document as Attachment A; and
WHEREAS, as part of the National Environmental Policy Act (NEPA) process, the District and the EPA
have informed the public about the project through various public notices, public hearings, the formation of
a Restoration Advisory Board, and the Draft Final Site Management Plan (January 2000). As a result of
these efforts the District in consultation with the EPA and the SHPO, has identified various parties that
were invited to participate in the development of this Programmatic Agreement (PA); and
WHEREAS, the following Native American tribes, organizations, agencies, and institutions (consulting
parties) were requested participate in consultation, and to concur in this PA:
The Nansemond Tribal Association
The Virginia Council on Indians
The United Indians of Virginia
The Virginia Department of Environmental Quality
The Tidewater Community College
The City of Suffolk
Dominion Land, Incorporated
NOW, THEREFORE, the District, the EPA, and the SHPO agree that the proposed environmental testing
and cleanup shall be carried out in accordance with the following stipulations in order to take into account
-------
the effects of these undertakings on historic properties:
STIPULATIONS
The District and the EPA shall insure that the following stipulations are carried out:
I. Identification and Evaluation
Stipulation 1: The District and the EPA have prepared and will execute an Archaeological Work Plan
(AWP) which provides the technical details for the Identification and Evaluation of historic properties
within the context of the ongoing project. The AWP is included as Attachment A of this PA.
Stipulation 2: The District shall insure that an archaeologist meeting the Secretary of Interior's Professional
Qualifications Standards (Project Archaeologist) shall prepare a detailed map of the project area
delineating its potential to contain archeological properties and submit the map to the SHPO for review and
approval, as indicated in Item 2 of the Archaeological Work Plan.
Stipulation 3: Project Plans, Work Plans, Contracts
The Project Archaeologist shall review all existing and future general plans, work plans, scopes-of-work
and contract documents for possible effects to previously identified and predicted archaeological resources
as provided for in the AWP (Attachment A). This work will be done in cooperation with the EPA Project
Manager and the District Project Manager, and shall include documents prepared by non-federal entities
under the oversight or approval of the EPA or the District. All scopes-of-work and contract documents
prepared by or subject to the approval of the EPA or the District shall contain a reference to this PA as
defining requirements that must be observed in the conduct of contracted work.
Stipulation 4: The Project Archaeologist shall submit plans for all actions with the potential to affect
historic properties to the SHPO for review and comment. If the SHPO does not provide comments within
thirty days, the EPA and the Corps will assume concurrence and proceed. If the EPA and the District in
consultation with the SHPO determines that no historic properties are affected, work may proceed. If the
EPA and the District in consultation with the SHPO find that further identification efforts are needed, the
identification and evaluation of archaeological properties will proceed following the procedures outlined in
the AWP.
Stipulation 5: If archaeological properties are identified as a result of the execution of the procedures in the
AWP (which includes unexpected discoveries), the EPA and the District will consult with the SHPO and
other consulting parties on ways to reduce, avoid, or mitigate project effects.
If the proposed actions will affect archaeological properties, the Project Archaeologist shall prepare a
treatment plan in consultation the EPA, the District, the SHPO, and other consulting parties. The treatment
plan may include, but need not be limited to, any one or more of the following:
Avoidance
Protection in place
Stabilization
Data recovery
Incorporation into protected areas
Curation
Publication
Public Interpretation
Repatriation
Long term management and co-management
-------
The Project Archaeologist shall provide all Treatment Plans to the EPA, the District, the SHPO, and all
consulting parties for a thirty day review period. Comments on the Treatment Plans shall be submitted to
the Project Archaeologist.
Stipulation 6: Any human remains encountered during the implementation of this agreement shall be
treated in accordance with the "Regulations Governing Permits for the Archaeological Removal of Human
Remains" (VR 390-01-02) found in the Code of Virginia (10.1-2305, et seq., Virginia Antiquities Act).
The District must obtain a permit from the SHPO for the removal of human remains in accordance with the
regulations stated above. In reviewing a permit involving removal of Native American human remains, the
SHPO will notify, the District and the SHPO will notify and consult with the Nansemond Tribal
Association.
All reasonable efforts will be made to avoid disturbing Native American gravesites and associated artifacts.
Skeletal remains and funerary items shall be handled with respect beginning with the start of excavation,
osteological examination and the final reinterment. Excavation of skeletal remains shall use a pedestal with
the same positioning and orientation as originally found.
The general public shall be excluded from viewing any Native American grave sites and associated
artifacts.
Human skeletal remains; shall be reinterred as determined by and in a location as agreed upon by the
Nansemond Tribal Association with two years after removal, with no extension.
Stipulation 7: Unanticipated Discoveries: the EPA and the District will ensure that construction documents
contain the following provisions for the treatment of unexpected discoveries:
"In the event that a previously unidentified historic property is discovered in the area of potential effect
after implementation of this PA or initiation of ground disturbing activities, all construction work involving
subsurface disturbance will be halted in the area of the resource and in the surrounding area where further
subsurface remains can reasonably be expected to occur. The Contractor shall immediately notify the
District Project Manage]' and/or the EPA Project Manager who will consult with the Project Archaeologist,
the SHPO and other appropriate parties, including the Nansemond Tribal Association, to determine if
further investigations arc; warranted. The Project Archaeologist will immediately inspect the work site and
determine the area and die nature of the affected archeological property. Work may then continue in the
project area outside the site area."
The District and the EPA, in consultation with the SHPO, will determine the National Register eligibility of
the previously unidentified resource. Potentially eligible historic properties will be evaluated using the
National Register criteria in accordance with 36 CFR 800.4(c). If the resourceis determined to meet the
National Register Criteria (36 CFR Part 60.6), the District and the EPA will ensure compliance with
Section 800.11 of the Council's Regulations. Work in the affected area shall not proceed until either the
development and implementation of an appropriate treatment plan; or the determination is made that the
located resource is not eligible for inclusion on the National Register.
II. Previous Disturbance to Archaeological Sites
Stipulation 8: Because some environmental testing and cleanup was conducted without inventory
completing the identification of historic properties and assessment of effects prior to the execution of this
Programmatic Agreement sites of this previous work will be visited and assessment of any effects to
archaeological resources will be documented, following the procedures called for in the Archaeological
Work Plan (Attachment A).
-------
III. Public Involvement , .
Stipulation 9: The District and the EPA will arrange for public participation appropriate to the subject
matter and the scope of work and involve the individual, organizations and entities likely to be interested,
in accordance with Section 800.2(d) and Section 800.8 of the regulations (36 CFR Part 800) implementing
Section 106 of the NHPA (16 U.S.C. 470f). Consultation with the Nansemond Tribal Association and other
appropriate interested parties will take place on all aspects of the archaeological resource work arising from
this PA, for example identification, evaluation, treatment, curation, treatment of human remains, and
review of reports. Information contained in technical reports will be provided in accessible, non-technical
form.
IV. Dispute Resolution
Stipulation 10: Should any party to this PA object to any action carried out or proposed with respect to
implementation of this PA, the EPA, the District, and the SHPO will consult with the objecting party to
resolve the objection.
If after inititiang such consultation, the EPA and the District determine.that the objection cannot be
resolved through consultation, the EPA and the District shall forward all documentation relevant to the
objection to the ACHP, including the proposed response to the objection.
Within thirty days after the receipt of all pertinent documentation, the ACHP shall exercise one of the
following options:
(a) Advise the EPA and the District that the ACHP concurs in the proposed response to the objection,
whereupon the EPA and the District will respond to the objection accordingly; or
(b) Provide the EPA and the District with recommendations, which the EPA and the District shall take into
account in reaching a final decision regarding its response to the objection; or
(c) Notify the EPA and the District that the objection will be referred for ACHP comment pursuant to
Section 110(1) of the NHPA and 36 CFR 800.6, and proceed to refer the objection for comment. Any
ACHP comment rendered pursuant to this stipulation shall be understood to apply only to the subject of the
objection; all other responsibilitie of the parties stipulated in this PA shall remain unchanged.
V. Reports, Annual Reports, and Amendments
Stipulation 11: All archaeological work conducted under the terms of this agreement will be the subject of
a comprehensive report or reports, to be submitted within two years of the termination of the undertakings
associated with the cleanup at FNOD. All technical reports prepared pursuant to this agreement will be
consistent with the federal standards entitled Archeology and Historic Preservation: Secretary of the
Interior's Standards and Guidelines (48 FR 44716-44742, September 29, 1983) and the Guidelines for
Preparing Identification and Evaluation Reports for Submission Pursuant to Sections 106 and 110, National
Historic Preservation Act, Virginia Department of Historic Resources, June 1992.
Stipulation 12: On or before January 31st of each year until the EPA and the District determine that the
terms of this PA have been fulfilled and so notify other consulting parties, the Corps will prepare and
provide an annual report to all parties to this PA, addressing:
• Status of Project Implementation
• Progress in Work
• Coordination of work with planning and construction schedules
• Any problems or unexpected issues encountered during the year, and
-------
• Any changes that the EPA and the Corps believe should be made in implementation of this PA.
The Annual Report will be prepared in non-technical, accessible language. The EPA and the District shall
insure that the annual report is made available for public inspection, that potentially interested members of
the public are made aware of its availability, and that interested members of the public are invited to
provide comments to the EPA, the District, and other consulting parties.
Stipulation 13: Based upon this annual review, any party to this PA may propose to the EPA and the
District that the PA be amended, whereupon the EPA and the District will consult with the other parties to
this PA to consider such an amendement. All signatories (EPA, the District, and SHPO) to the PA must
agree to the proposed amendment in accordance with 36 CFR 800.6(c)(l)(i).
Stipulation 14: The dismbution of the fourth annual report shall include a request to signatories and
consulting parties to consult to evaluate the execution of the PA, and consider whether to amend, continue
or otherwise extend the PA* which will otherwise terminate at the end of the fifth year (see Siptulation 18).
VI. Professional Qualifications
Stipulation 15: All archaeological work conducted under the terms of this agreement will be done under the
direct supervision of qualified individuals meeting, at a minimum, the appropriate federal qualifications
provided in 36 CFR Part 61, Appendix A, as provided for in the Archaeological Work Plan (Attachment
A).
VII. Curation
Stipulation 16: Artifacts collected in the course of implementing this agreement are the property of the
present land owners. The District and the EPA shall encourage the curation of these materials in
accordance with 36 CFR Part 79. All archaeologial field records and documents will be the property of the
District, and will be curated in accordance with 36 CFR Part 79.
VIII. Termination
Stipulation 17: If the EJ'A or the District determines that the terms of this PA cannot be carried out, or if
the EPA, the District or die SHPO determines that the PA is not being properly implemented, the EPA, the
Distric and the SHPO shall consult to seek amendment of the agreement. If the agreement is not amended,
any signatory may terminate it with thirty days notice to the other signatories. The EPA and the District
shall then either execute a Memomorandum of Agreement with signatories under 36 CFR 800.6(c)(l) or
request the comments of the Council under 36 CFR 800.7 (a).
IX. CERCLA Lead Agency Disclaimer
Stipulation 18: Nothing in this Programmatic Agreement shall be construed as a resolution, agreement or
admission regarding which federal agency is the lead agency at the FNOD for purposes of CERCLA or to
which federal agency the President of the United States has delegated his authority under CERCLA at the
FNOD.
IX. Expiration
Stipulation 19: This agreement will continue in full force and effect for 5 years. At some time in the six
month period prior to the expiration of the Agreement, all parties can agree to extend this agreement with
or without amendments, indicating their agreement to the District and the EPA in writing.
Evidence of Compliance
-------
Execution and implementation of this Programmatic Agreement evidences that the District and the EPA
have satisfied their Section 106 responsibilities for all individual undertakings of this program.
-------
REFERENCES:
Benedict, Tod L.
1996 Archeological Assessment of Sampling Grids, Ordnance and Explosives Engineering
Evaluation/Cost Analysis, Former Nansemond Ordnance Depot, City of Suffolk, Virginia.
Letter Report, provided by John L. Milner Associates to Foster-Wheeler Environmental
Corporation, December 12, 1996.
McDonald, Bradley M and David M. Givens
1996 Phase la Historical and Archaeological Assessment of the 1,000-A ere Former Nansemond
Ordnance Depot, City of Suffolk, Virginia. Report prepared by the James River Institute
for Foster Wheeler Environmental Corporation.
-------
[Separate] SIGNATUlilE PAGE
NORFOLK DISTRICT, U.S. ARMY CORPS OF ENGINEERS:
By: • Date:
ALLAN B. CARROLL, JR.
Colonel, U.S. Arrny, District Engineer, Norfolk District
REGION III, U.S. ENVIRONMENTAL PROTECTION AGENCY
By: Date:
VIRGINIA STATE HISTORIC PRESERVATION OFFICER:
By: Date: •
H. ALEXANDER WISE, JR.
Director, Virginia Department of Historic Resources
ACCEPTED FOR ADVISORY COUNCIL ON HISTORIC PRESERVATION:
By: : Date:
JOHN M. FOWLER
Executive Director, Advisory Council on Historic Preservation
-------
ATTACHMENT A:
Archaeological Work Plan
Former Nansemond Ordnance Depot
March 2000
Tim Thompson
Archaeologist
Project Management Division, Environmental Branch
Norfolk District
U.S. Army Corps of Engineers
Plan reviewed and approved:
Kirk Stevens Robert Thomson
Project Manager Project Manager
Norfolk District, U.S. Army Corps of Engineers Region HI, U.S.
Environmental Protection
Agency
[cover page]
-------
Introduction
In July 1999, the former Nansemond Ordnance Depot (FNOD) was put on the National Priority List
(NPL) by U.S. EPA Region III. The Department of Defense has been identified as one of the "Primary
Responsible Party" (PFP). Under the Formerly Used Defense Site (FUDS) Program the Norfolk District, U.S.
Army Corps of Engineers is addressing environmental concerns that resulted from Department of Defense
(DOD) use of the former depot. This work plan address the work at this site being conducted at this site by the
Corps of Engineers, the Environmental Protection Agency, and their contractors. A number of specific
actions related to the requirements of Section 106 of the National Historic Preservation Act have been carried
out. However, no overall plan for the identification, evaluation, protection and management of the historic
properties within the FNOD has been completed. This Archaeological Work Plan (AWP) is intended to fill
that void, and provide tilie basis for a Programmatic Agreement (PA) to establish compliance with Section 106.
The identification and remediation of hazardous materials at FNOD is a complex process, and this
plan will group certain similar sets of activities together to provide generic procedures for insuring that the
requirements of the law and the regulations are met. Reference will be made to the "Draft Final Site
Management Plan, Former Nansemond Ordnance Depot" (January 03, 2000), prepared by the Norfolk District,
to identify activities requiring action to satisfy Section 106.
Before examining the project in more detail it is appropriate to review the Historic Preservation
Contexts to insure that the work plan will address resources within those contexts. Previous reports and
management recommendations are summarized in the section called "Historic Preservation Context."
Following this, a set of general procedures governing the archaeological work at FNOD in the section called
"Genera} Procedures: Archaeological Work." These procedures will be applied to the investigations and
cleanup process, which are described in the next section, "Undertaking: Process". Following this a procedure
for evaluating work completed to this point is given in the section "Undertakings: Completed." This covers
previous testing and remediation excavation that was not covered by previous Section 106 consultation.
The plan section "Undertaking: Locations" reviews the various areas at FNOD where hazardous
materials or unexploded ordnance are known or suspected. The final section "Reports" provides for Reports to
be prepared an all archaeological investigation at the FNOD. A "References" section is provided.
Historic Preservation Context
Milner Report
On 26 September 1996 Robert Ogle, Chief of Planning Division, Norfolk District, sent a letter to
David Duttpn, Virginia Department of Historic Resources which gave a brief summary of the history of the
property and included as an attachment "Ordnance and Explosives Engineering Evaluation/Cost Analysis
[EE/CA] at the Former Nansemond Ordnance Depot, Suffolk County, Virginia". The attachment described the
use of 100' by 100' sampling grids placed across the property to identify ordnance deposits. Thirty to forty
sampling grids were used. The details of the procedures to identify archaeological sites are given in the section
of this work plan called "General Monitoring" and will be used to the degree applicable as part of this plan.
The sampling vrork was completed, and a letter report was submitted to Foster Wheeler Corporation.
This letter report with the subject title "Archeological Assessment of Sampling Grids, Ordnance and Explosive
Engineering Evaluation/Cost Analysis, Former Nanosecond Ordnance Depot, City of Suffolk, Virginia"
documents the completion of the procedures described in Item 3, above. Visual Inspection, and the placement
of one shovel test pit within each grid square investigated 34 sample grid squares, designated for geophysical
survey were completed. The final recommendations by the archaeologist include the following statement:
Accordingly, no further archeological monitoring is recommended within the 34 grids
examined during this investigation. However, if similar UXO testing is to be done elsewhere within
the project area, in possibly less-disturbed loci, additional archeological monitoring is advised (12
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December 96 - Letter Report, Todd Benedict, archaeologist, John Milner Associates, to Mark
Shells, Project Manager, Foster-Wheeler Environmental Corporation).
Phase IA Report
In 1996, the James River Institute for Archaeology completed a "Phase IA Historical and
Archaeological Assessment of the 1,000-Acre Former Nansemond Ordnance Depot, City of Suffolk, Virginia
(McDonald and Givens 1996)" under contract to the Foster Wheeler Environmental Corporation. This study
included a review of documentary and cartographic resources pertaining to the study area and included the
results of previous archaeological studies within the area (Outlaw 1990; McSherry and Luccketti 1992). Both
prehistoric and historic period contexts were reviewed, and the following summary was included:
Approximately 130 prehistoric and historic archaeological sites are located in the
immediate vicinity of the project area. It is therefore likely that unidentified archaeological
resources exist within the project area, particularly along the terraces overlooking the tributaries of
West and Streeter Creeks. Archaeological resources likely to be located within the project area
include: (1) small prehistoric campsites dating to the Archaic or Woodland periods; (2)
seventeenth-century domestic sites; (3) eighteenth century domestic sites; (4) nineteenth-century
domestic and agricultural sites; and (5) twentieth-century domestic and military sites. (MacDonald
and Givens 1996: iii).
The following recommendations were given:
The Cultural Resources assessment of the former Nansemond Ordnance Depot suggests
that the majority of the project area has not been surveyed archaeologically. Given the
concentration of both prehistoric and historic sites in the immediate vicinity of the study area, it is
likely that — barring significant construction disturbances—the unsurveyed areas have moderate to
high potential to contain a variety of archaeological sites, particularly along the terraces
overlooking the tributaries of West and Streeter Creeks. Archaeological Resources located on the
property may include prehistoric sites, seventeenth-century domestic sites, eighteenth-century
domestic sites, nineteenth-century domestic and farmstead sites, and twentieth-century domestic
and military sites.
One site previously identified within the general bounds of the former Nansemond
Ordnance Depot, 44SK399, was deemed potentially eligible for nomination to the National
Register of Historic Places. Espey, Huston, and Associates recommended this site should be
investigated at the Phase II level if future work will impact this area. Also within the bounds of the
project area, 44SK6 was identified in 1977; at that time, the site was visibly eroded, but the site
form does not indicate the need for further work. JRIA suggests that Site 44 SK6 should be
re-examined if the proposed plan of work at the depot will disturb this area (McDonald and Givens
1996:47).
This work plan is designed to address these recommendations.
Unexpected Discovery: Burial
On Tuesday, 14 April 1998, human bones were discovered in a road cut placed to provide access for
test drilling on the beach on the James River. Some of these were removed by the Suffolk Police Department
as possible "crime scene" evidence, and when they were found to be ancient were returned to the site. During
consultation with the Virginia State Historic Preservation Officer (SHPO) staff and the Nansemond Tribe, it
was agreed that this location would be treated as a prehistoric burial site. The Norfolk District placed filter
cloth and a thick layer of gravel over the remains to protect them from further erosion. It was agreed that if this
location were subject to any further disturbance, that consultation would resume and a more thorough
investigation would be completed to determine the limits of any site that might be present and to design
measures to protect the site or complete data recovery. It was further agreed that a PA would be prepared to
cover the entire project.
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General Procedures: Archaeological Work
/. Project Archaeologist
The archaeologist presently employed by the Norfolk District, U.S. Army Corps of Engineers, is
assigned the role of "Project Archaeologist". That individual meets the professional standards established by
the Secretary of the Interior (Federal Register 62(119):33707-33723). If this role is reassigned, these
qualifications will be required.
2. Probability Map
The Phase IA report (McDonald and Givens 1996) indicated that the entire project area possessed a
medium to high probability for containing significant archaeological resources. The Project Archaeologist will
review previous studies to refine this probability statement and provide a more detailed map indicating
specific areas of high arad medium probability. This map will be used to condition management activities for
specific portions of this complex project area. The following elements will be used to create predictive models
and the map:
1. Distribution of topographic and drainage features
2. Prehistoric settlement patterns
3. Historic period settlement patterns
4. Disturbance analysis of recent land use actions in the area.
The Probability Map will be submitted to the Virginia SHPO for review and comment.
3. Unexpected Discoveries: archaeological resources
All contractor personnel and government personnel will be alerted to the possibility that significant
archaeological resources may be encountered at any point in the study area. Of particular concern is the
possibility that additional human remains from either the prehistoric or the historic period may be encountered.
Anyone conducting any excavation or ground disturbance that observes possible archaeological
resources, particularly human burials, will immediately cease work and contact the Norfolk District Project
Manager, or his designated representative, to arrange for a field evaluation of the discovery by the project
archaeologist. This policy will be established immediately for all ongoing work, and will be made a contract
requirement for all future contracts.
Treatment of the unexpected discovery of human remains shall be in accordance with § 10.1-2300 et
seq of the Code of Virginia, and Virginia Regulations 390-1-02, and the SHPO shall be notified immediately.
In the case of remains that are, or are suspected to be of Native American Origin, the Virginia Council on
Indians, the United Indiiins of Virginia, and the Nansemond Tribal Association shall be notified immediately
to participate in consultation on the treatment of such remains.
4. Site Management and Work Plan Review
Thorough reviews of the Draft Final Site Management Plan ("SMP"; U.S. Army Corps of Engineers
2000) and other specific work plans and studies for individual candidate remediation sites is ongoing. All
segments of these plans that might result in the disturbance of archaeological resources, particularly
contractors' work plans imd project scopes, will be identified and subject to review by the project
archaeologist. This will allow for the identification of archaeological resource management problems and the
formulation of specific procedures prior to the initiation of field activities for testing or remediation. Specific
procedures are given below, in the section "Integrating Archaeological Protection and the Cleanup Process."
Any changes needed these plans to insure compliance activities can by incorporated will be made.
Changes and modifications to the SMP and other work plans will likewise be reviewed by the project
archaeologist, and the AW adjusted to address these changes.
5. Scopes of Work, and Contracts
Existing scopes of work and contracts will be reviewed by the project archaeologist as soon as
possible to identify compliance needs. Soils and surface condition data generated by previous studies will be
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used to aid in the disturbance analysis, which is a factor in the creation of the probability map.
Future work plans, scopes of work, and contracts will be reviewed in consultation with the project
archaeologist to identify compliance needs. Any changes to these scopes and contracts required to insure
compliance will be made.
6. Other Activities
Any activities connected with the FNOD cleanup that involve ground disturbance or excavation of
any kind that are not covered in the Site Management Plan or other work plans will be submitted to the
Norfolk District Project Manager for review by the project archaeologist with sufficient lead time to allow for
the design of any project modifications that may be necessary to insure the protection of any archaeological
resources, and to complete any needed archaeological field investigations, as described below in the section
"Integrating Archaeological Protection and the Cleanup Process."
7. Unexpected Discovery: Unexploded Ordnance, Hazardous Materials
If an unexpected discovery of explosive ordnance, or any item or object that as an immediate threat to
life or property occurs, and immediate remediation is required, the Norfolk District Project Manager will be
notified, and the project archaeologist will be given an opportunity to examine any excavation after the threat
is removed and before the excavation is backfilled. This provision applies to circumstances that occur outside
the normal screening and identification procedures provided for in the Site Management Plan.
8. General Monitoring
This plan follows the model originally specified in the "Ordnance and Explosives Engineering
Evaluation/Cost Analysis at the Former Nansemond Ordnance Depot, Suffolk County, Virginia." The details
of this procedure are quoted below. The Virginia State Historic Preservation Office approved this procedure in
1997 for the limited sampling area covered by this EE/CA.
Procedures will be implemented to identify archaeological sites and to avoid damage to
such sites. Prior to the start of excavation work, the contractor must first locate and stake the
corners of the sampling grids. Grids in areas of heavy vegetation must be cleared enough so that
workers carrying geophysical instruments can gain access to the grid. Once the grids have been
staked and cleared of vegetation, the contractor's archaeologist (with the accompaniment and
guidance of ordnance specialists) will visually survey the areas for anything of archaeological
significance and indicate the locations where archaeological samples shall be taken. If anything of
archaeological significance is found at the grid, no ordnance sampling will be done and the Virginia
SHPO will be notified. (Grids eliminated from ordnance sampling due to archaeological
significance will generally be shifted to avoid areas of archaeological significance or replaced by
newly established grids outside the areas of archaeological significance). If there is no indication of
archaeological significance for the grid, the archaeologist will move on to the next grid, and the
contractor's ordnance specialists will begin the ordnance sampling. (Safety regulations require that
only persons trained in ordnance operation are allowed within 1250 feet of ordnance sampling
operations. Therefore, the archaeologist may not be present during the ordnance sampling
operations.) After completion of ordnance sampling, but prior to backfilling of holes, the
archaeologist will conduct quality assurance inspections on ordnance excavations.
These procedures are here modified to set the withdrawal of the archaeologist to the "Public
Withdrawal Distance" (PWD) specified for particular locations hi the contractor's work plans, and to allow for
their use in intrusive geophysical and other testing actions, in addition to ordnance removal.
9. Exceptions
Some activities that are part of routine sampling operations do not create sufficient disturbance to
require immediate archaeological attention. Two activities are specified:
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a. Placement of groundwater monitoring wells
These wells are created by drilling an encased shaft two to three inches in diameter into the water
table to provide for periodic monitoring of the chemical constituents of the groundwater.
b. Hand Auger soil sampling
This sampling procedure uses hand operated augers to sample soil below the surface for various
constituents needed to evaluate the need for more extensive intrusive testing. This sampling procedure creates
an auger hole three to four inches in diameter, normally to a depth no greater than four feet.
While these activities in themselves do not create sufficient effects to require immediate
archaeological attention, more extensive earthmoving, such as excavation or grading for access roads
associated with them may be more damaging. For this reason, the project archaeologist should be notified of
these procedures prior to their conduct, and any additional ground disturbance associated with them should be
indicated and evaluated by the project archaeologist to determine whether archaeological testing or monitoring
is required.
10. Archaeological Investigations
a. Previously identified archaeological sites
There are eight previously identified archaeological sites within the project boundaries. Seven of
these are listed in the Phase IA archaeological report submitted by James River Institute (McDonald and
Givens 1996:43):
44SK6
44SK379
44SK396
44SK398
44SK399
44SK401
44SK403
Of these, five had been determined not eligible to the National Register of Historic Places (NRHP),
44SK378, 44SK396, 44SK398, 44SK401, and 44SK403, and no further action is required under this plan.
44SK6 was recommended "status unclear", and will require further evaluation. This site is just to the west of
the portion of the project referred to as the "James River Beachfront". 44SK399 is classified "potentially
eligible" and Phase II is recommended. This site is on the west edge of the "Impregnite Kit Area Geophysics
Coverage area".
An eighth site is represented by the "Unexpected Discovery" of a human burial, mentioned above.
This location, based on very limited evidence, is interpreted as a prehistoric burial. It is some distance to the
east of 44SK6, a historic period site, and may be associated with it, though it is more likely to represent a
separate prehistoric site.
Before an intrusive investigation, removal or other ground disturbance is conducted in the vicinity of
44SK6,44SK399, or the burial site, the SHPO will be consulted to determine whether or not further
archaeological evaluation is required.
b. Archaeological sites discovered during the project
Any archaeological sites identified during the further conduct of the project will be evaluated in the
field by the project archaeologist. Any intrusive work at or near an archaeological site location will be
suspended until this evaluation is complete. The project archaeologist will prepare a recommendation based on
the nature of the site and the nature of any intrusive work that is needed to complete the project, and it will
immediately be submitted to the Virginia SHPO for consultation. Site testing will be recommended if
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absolutely necessary. Every effort will be made to avoid disrupting or delaying any investigations or removal
work.
Undertaking: Process
Cleanup Process
This section of the plan provides a general analysis of the site cleanup process and some general
procedures that will be followed as the site cleanup work continues. The process used to cleanup FNOD is not
unlike that followed in archaeological studies. It begins with the identification of possible unexploded
ordnance (UXO) or other hazardous and toxic items. This is followed by an investigation of the items to
determine if they are really a threat, a decision about the best course of action, a cleanup action, and a closeout
of the process. The formal stages involve documentation and verification and proceed as follows:
Preliminary Assessment/Site Inspection (PA/SI)
Remedial Investigation/Feasibility Study (RI/FS)
Record of Decision (ROD)
Remedial Design or Remove Action (RD/RA)
Close-out
After each of these stages (except closeout) a decision may be made that no further Department of
Defense action is required (NDAI). This could happen if no material requiring remediation or removal is
discovered, or if something is found that is not the responsibility of the Department of Defense to remediate.
Also, at any stage of the process a removal action can be taken if warranted by an immediate threat to
life or property.
The processes of assessment and inspection (PA/SI), remedial investigation (RI/FS), and remediation
or removal may all involve excavation to gather samples for testing, to evaluate anomalies identified by
remote sensing such as magnetometer, or to remove hazardous material including UXO. Since there are
several different locations at FNOD that have already been identified as candidates for possible remediation
there may be several evaluation and remediation actions running on parallel tracks, each of which may cause
an adverse effect to archaeological resources. This is particularly true since no comprehensive, archaeological
inventory of the property has been conducted.
A removal action may follow one of two tracks. In the case of a removal action which is "non-time
critical" — that is where there is no imminent threat, and there is more than six months available for planning
— a document called an "Engineering Evaluation/Cost Analysis (EE/CA) may be prepared. This is an internal
document that may be used to analyze and justify the procedures to be used and the costs to be incurred. This
is not required, however, and in cases which are time critical, and actions must be initiated with less than six
months lead time it may be dispensed with,
In many cases evaluation reports and work plans are prepared, sometimes after actions have taken
place that might otherwise have required Section 106, National Historic Preservation Act (NHPA).
The general site cleanup procedures described here are ideals based on the Department of Defense
FUDS manual which is not regulatory, and individual sites may be subject to different sequences of
investigation, evaluation and removal. In addition, the FNOD has been designated as a National Priority List
site and may be subject to what is referred to as a "Superfund Accelerated Cleanup Model" with fewer
opportunities for plan and testing review.
The process described here, in practical execution, generates numerous activities that could have an
adverse effect on archaeological resources, and the General Procedures for archaeological work, given at the
beginning of this plan have been designed to provide maximum flexibility in completing appropriate
archaeological evaluation in a timely way, in order to not retard the process of identifying and removing
materials that are hazardous to life and property.
Integrating Archaeological Protection and the Cleanup Process
The project archaeologist will work closely with the FNOD project management team, both for the
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Norfolk District, USAGE, and the EPA Region III, to identify archaeological and assessment needs for all
activities involving ground disturbance, using the general archaeological procedures described in the
beginning of this AWP.
1. In any case where a site investigation or other testing or evaluation or removal will be carried out
that may involve ground disturbance, that is outside the scope of any existing work plan, this action will be
referred to the project archaeologist for evaluation.
a. If the location is within an area of high probability for the presence of archaeological resources,
sufficient lead time will be given for the project archaeologist to make a field inspection of the area after
vegetation has been cleared. If an UXO or other hazard exists, the project archaeologist will be accompanied
by an appropriate expeit(s) to insure the safety of all parties. If an archaeological resource is identified or
suspected, a limited archaeological test excavation will be conducted, subject to the supervision and control of
an appropriate site safety expert. If this cannot be done within the standard safety protocols in place for the
overall conduct of the site cleanup, it will be deferred. If a significant archaeological resource is identified, the
project will immediately advise the Virginia SHPO of the location and nature of the resource and evaluation of
the potential effects of Ihe ground disturbing procedure. If any alternatives to the procedure exist, they will be
provided. In the case of excavation for general site characterization, excavations will be shifted to avoid
affecting significant archaeological resources, if possible. The project archaeologist will confer with the
project manager to determine whether or not the procedure (including removal) is essential to the completion
of the cleanup mission, and if it is the project archaeologist will recommend procedures to minimize the
effects to the archaeological resource. If such procedures are not feasible, the project manager will advise the.
SHPO that the action must be carried out, and provide minimal documentation of the decision.
In all areas of high probability, whether or not significant resources are identified in advance, the
project archaeologist will inspect all excavations before they are backfilled and document any resources that
have been revealed, if any.
b. In areas of low or medium probability will inspect excavations after they are complete and before
they are backfilled, on a. sampling basis. Any resources revealed will be documented, and the probability map
adjusted, if necessary.
2. In the case of actions for which scopes of work, or work plans have been prepared, the project
archaeologist will review such documents and identify any actions needed to insure the protection of
archaeological resource;?, using the general procedures for archaeology and the specific procedures described
in item 1., immediately above.
3. In all cases the general procedures for archaeological work, given above will be followed,
particularly Item 3 (unexpected discoveries: archaeological resources), Item 7 (unexpected discovery;
unexploded ordnance), and item 8 (General Monitoring).
Undertakings: Completed
Work has been underway at FNOD that has not undergone Section 106 NHPA review. It is desirable
to do field evaluations of locations where extensive excavation has taken place to determine if any
archaeological resource!! were present. The project archaeologist will review project documentation to tabulate
a list of such locations. These will be visited on a time-available basis, without interrupting the procedures
given above which are necessary to complete the timely closeout of all sites at FNOD. Any new data
generated by the field review may be used to modify the archaeological probability map.
Undertaking: Locations
The Draft Final! Site Management Plan (SMP) identifies several different categories of locations and
of actions to be taken at the FNOD. These include "Removal Actions", "NPL Source Areas" and "Areas of
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Concern". These are shown aerial photographs in the SMP.
Removal Action Areas (RAAs)
The SMP identifies five RAAs, as follows:
1. Removal Action Area 1: TCC Geophysical Anomaly Investigation
2. Removal Action Area 2: FNOD Main Burning Ground Area
3. Removal Action Area 3: James River Beachfront Area
4. Removal Action Area 4: Nansemond River Beachfront Area
5. Other Removal Actions
Removal Action Area 1: TCC Geophysical Anomaly Investigation
There are five areas of concern (AOCs) that have been identified related to the possibility of
unexploded ordnance. Additional investigations are planned for these areas. Some areas have already been
subject to limited investigations and remediation. These will be subject to a field impact evaluation by the
project archaeologist on a time available basis, without interrupting the schedule for dealing with the AOCs.
1. TNT Removal Area. Some investigation and removal has been completed in this area, but it has
been expanded to insure that all hazardous material has been or will be identified.
2. Athletic Field (South and North). Based on the terrain of this area, it was included in the
geophysical survey.
3.Renovation Plant area. This area was previously used to renovate shells.
4. Buildings L-l 1 and L-12. These magazine buildings were destroyed by fire in the 1920s by fire.
5. Building 4.10. This magazine building was destroyed by fire in 1937.
Removal Action Area 2: FNOD Main Burning Ground Area
The Ordnance and Explosives Final Engineering Evaluation/Cost Analysis (OE EE/CA) identified
trenches that may contain OE and OE-related items. These areas are in the main burning ground source area.
That area is also defined as an NPL source area.
Removal Action Area 3: James River Beachfront Area
The James River Beachfront is also designated Source Area 2 in the EPA's "Hazardous Ranking
System" documentation. A Removal is scheduled for June 2000.
Removal Action Area 4: Nansemond River Beachfront Area
This area was identified by consensus between the Corps of Engineers, the EPA, and Virginia
Department of Environmental Quality as the highest priority Area of Concern (AOC) at FNOD.
"areas of concern" (AOCs) that will be subject to testing and remediation in the near future. This
AWP will address work planned at these AOCs in the order that investigations are planned. The AOCs include
the following:
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1. Source Area: TNT removal area, residual soil evaluation
2. Source Area: James River beach front, metallic debris field
3. Source Area: Impregnite test kit area
4. Source Area: Horseshoe Pond
5. Source Area: Main Burning Ground and Steamout Pond
6. Source Area: Track K dump
Each of these will be analyzed and informal Source Area Archaeological Work Plans prepared for
each in the order in which investigations will proceed. The general procedures for "Integrating Archaeological
Protection and the Cleanup Process," given above will be used to designate specific actions that will be carried
out .to identify and protect any archaeological resources that may be present.
Additional Areas
It is possible that other areas may be identified in the course of investigations and remediation that
will require cleanup activity. Such areas will be treated according to this plan.
Reports
Prior to project closeout, the project archeologist will prepare archaeological reports on each of the
project sites, and an overall summary report on the archaeological work will be prepared. In the case of any
remediation site where no resources were identified, a brief description of what was done will be provided.
• Any needed funding for these reports will be secured .in advance.
References
Benedict, Todd
1996 "Archeological Assessment of Sampling Grids, Ordnance and Explosives Engineering
Evaluation/Cost Analysis, Former Nansemond Ordnance Depot, City of Suffolk,
Virginia." Letter Report, Todd Benedict, archaeologist, John Milner Associates, to Mark
Shells, Project Manager, Foster-Wheeler Environmental Corporation.
Foster Wheeler Environmental Corporation
n.d. Ordnance and Explosives Engineering Evaluation/Cost Analysis at the Former Nansemond
Ordnance Depot, Suffolk County, Virginia.
McDonald, Bradley M., and David M. Givens
1996 Phase 1LA Historical and Archaeological Assessment of the 1,000-Acre Former
Nansemond Ordnance Depot, City of Suffolk, Virginia. James River Institute for
Archaeology, submitted to Foster Wheeler Environmental Corporation, 8 October 1996.
McSherry, Perry, and Nicholas Luccketti
1992 Phase I Archaeological Survey of Nansemond Waste Water Treatment Plant, Suffolk,
Virginia. James River Institute for Archaeology, Williamsburg, Virginia.
Ogle, Robert
1996 Letter, Robert Ogle, Chief of Planning Division, Norfolk District, to David Dutton,
Virginia Department of Historic Resources. 26 September 1996.
Outlaw, Alain C.
1990 Phase 1 Archaeological Survey at Pig Point, Suffolk, Virginia. Espey, Huston &
Associates, reported submitted to Dominion Resources, Richmond, Virginia.
U.S. Army Corps of Engineers, Norfolk District
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2000 Draft Final Site Management Plan, Former Nansemond Ordnance Depot. January 3,
2000, U.S. Army Corps of Engineers, Norfolk District, Norfolk, Virginia.
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EXAMPLE 7-D
EMERGENCY RESPONSE
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'NRT
&:
nal Response
(5101)
U.S. EPA >
shington, DC
air:
ziivironrnontal
i Agency
air:
Coasf Guard
I
imartmentof
•jgmerce
'apartment of
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Port Oil and
lemicaJ Spills
V4-8802
Ms. Elaine Da\ies
Acting Deputy Director
Office of Emergency & Remedial Response
United States Environmental Protection Agency (5202G)
Washington, D.C. 20460 •
Re: Transmittal for Signature of Programmatic Agreement on Protection of
Historic; Properties during Emergency Response
Dear Ms. Davies:
At its March meeting, the National Response Team (NRT), the organization of 16
Federal agencies responsible for oil discharge and hazardous material release response
planning and coordination at the national level (40 CFRPart.SOO), recommended that
member agencies sign the attached Programmatic Agreement (PA) addressing the
protection of historic properties during an emergency response. The Agreement reflects
two years of work by a National Response Team Committee chaired by the Justice
Department. The committee, included representatives from affected Federal agencies and
representatives from the appropriate State organization.
It is the judgment of the NRT that implementation of the PA will enable the Federal
Qn-Scene Coordinator (FOSC) to consider the effects of Federal emergency response
activities on historic properties without hindering the FOSC's primary mission of
protecting the public and the environment. Under the Advisory Council on Historic
Preservation's regulations, compliance with this PA constitutes compliance with Section
106 of the National Historic Preservation Act, thereby providing the FOSC with a
simplified and expedited process that should be defensible in a legal challenge. The
National Response Team therefore transmits the Programmatic Agreement to you with its
strong recommendation that you or the appropriate official sign it on behalf of your
Department or Agency.
Please note that we have provided a separate signature page for each Department,
Agency, or organization to complete with the appropriate official's name and title. Please
send the signed page back to John Gustafson (EPA Headquarters, Waterside Mall, 401M
Street, SW, MC 5104, Washington, DC 20460), so that we can assemble a complete
copy.
THE NATIONAL RESPONSE TEAM
ftorl Paner
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In addition to the Programmatic Agreement, we also have included background
information to assist in consideration of the Agreement. If you have questions, please
contact Steve Baer, NRT Justice Department Respresentative and Cultural Resources
Committee Chair, at 202-267-0528; Jan Thorman, NRT Department of the Interior
Alternate Representative and Cultural Resources Committee ViceChair, at 202-208-6304;
or John Gustafson,/IRT Executive Director, at 202-260-3315. Thank you.
You
Response Team
Capf. Dick Benms
ViceChair, National Response
Team
Enclosures:
Background Document
Programmatic Agreement
Qs&As
Fact Sheet
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'NRT
a/ Response
(5101)
'.S. EPA
ington, DC
t'ofhin
f
Background on the Formation of the NRT Ad Hoc Committee on
Cultural Resources and the Development of the Programmatic
Agreement
hair:
nvironmental
7 Agency
Section 106f of the National Historic Preservation Act (NHPA), 16 USC §
470f, requires federal agencies having direct or indirect jurisdiction over a proposed
federal or federally assisted "undertaking" to take into account the effect of the
undertaking on historic properties included in or eligible for inclusion in the National
Register of Historic Properties. In response to an Action Proposal seeking NRT
guidance on the effect of Section 106 on federally led emergency response to discharges
of oil and hazardous substances under the National Oil and Hazardous Substances
Pollution Contingency Plan (NCP), the NRT formed the Ad HfiC Committee on Cultural
Resources in 1995. The Committee worked Tor two years to develop a Programmatic
Agreement (PA) which would clarify the role of the Federal On-Scene Coordinator
(FOSC) during emergency response and provide some measure of protection to the
FOSC in the event his or her actions are challenged. Along with the attached
information, this document provides background to the PA.
Drafting and Review Process of the PA
nentof
'iand Human
rvices
All NRT-member Departments and Agencies were invited to participate on the
Ad Hoc Committee. The Committee that drafted the PA was chaired by the
ement9ency Department of Justice and included representatives of the Environmental Protection
Agency, Department of Transportation (including the Coast Guard), Department of the
Interior (including the National Park Service), Department of Commerce (particularly
NOAA), Department of Agriculture and Department of Defense. In addition, two non-
NRT-member organizations were actively involved in the drafting and revision of the
PA: the Advisory Council on Historic Preservation (the Advisory Council), which is
primarily responsible for the administration of the NHPA, and the National Conference
of State Historic I'reservation Officers (NCSHPO), which is the national organization of
State Historic Preservation Officers, who are appointed by the governor of each state
and territory. Each participating federal Agency or Department was asked to solicit
comments from its employees. EPA, for instance, distributed drafts of the PA to OSCs
in the Regions and solicited their comments twice hi 1996. The PA was distributed in
an earlier form at the NRT/RRT Co-Chairs meeting in Alexandria, Virginia in 1996.
On October 30, 1996, a revisecf PA was formally transmitted to the NRT for comments
by its members. ]ii December 1996, the Advisory Council published notice of the
^''^.^proposed PA in the Federal Register and solicited comments from interested parties and
P The public. Finally, the PA was presented again at the most recent NRT/RRT Co-Chairs
m Denver this past winter. Changes- were made in the PA at each stage in this
process, most of them to reflect and further clarify the limited role of the FOSC in
considering potential effects on historic properties during emergency response, rather
than affirmatively requiring the FOSC to protect historic properties.
THE NATIONAL RESPONSE TEAM
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Important Features of the Programmatic Agreement
,.
Perhaps'the most important feature of the PA is inherent in its form. An
iiiteragency agreement or memorandum of understanding sets out an agreement between
federal Departments or Agencies. Compliance with a Programmatic Agreement, as that
term is employed by the Advisory Council on Historic Preservation in its regulati6ns, 36
CFR § 800.13, is deemed to satisfy an agency's legal requirements under Section 106.
Under the terms of the instant PA then, compliance by a federal Department or Agency
will constitute compliance with Section 106 of the NHPA.1
The PA does not commit its signatories to a position on the applicability of any
legal requirements under Section 106. Rather, the PA, at IV:A,, provides only that
"[fjor the purpose of this PAT the federal OSC . . . is responsible for ensuring that
historic properties are appropriately considered." [Emphasis supplied.] Both the NRT
and the Committee members have long-since agreed that, while it is not necessary to
determine whether an emergency response activity is, in fact, legally an undertaking
within the meaning of the NHPA, the FOSC, as the federal official designated to
coordinate and direct response actions, is the only federal official who can meaningfully
ensure that historic properties are appropriately considered during emergency response.
Any other determination might result in dividing the FOSC's authority at the site of a
spill or release, ^hile the FOSC must ultimately consider the potential effects of
emergency response actions on historic properties, federal agencies, State officials, State
Historic Preservation Officers (SHPOs) and others are available to assist in the work
necessary to make such consideration possible.
In sum, the instant PA has been drafted both to facilitate consideration of historic
properties during emergency response and to help protect the FOSC's actions from legal
challenges under NHPA. The Sections of the PA are described briefly below.
Bkief Overview of the Programmatic Agreement
• ' \ •
The PA is divided into eight sections. The first three sections are introductory
and explanatory. Section I explains the purposes of the PA, but makes clear that the
priorities set out in the NCP, particularly protecting public health and safety, are the
overriding concerns of the FOSC. Nothing in the PA changes the national response
1 It should be noted, however, that the language in this PA is much more favorable to federal Departments and
Agencies than other individual agency PAs which appear to give the Advisory Council and the NCSHPO unilateral
power to terminate.
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priorities set put in 40 CFR § 300.17; nor does the PA change existing law. Sections n
and HI describe the NHPA and define "historic property."
An important change in the draft PA since it was first distributed to the NRT in
March 1996, is eointained in I.A., which now indicates that both the Advisory Council
and the NCSHPO will be available to assist federal OSCs in the event an individual
SHPO does not re«;pond. Also, I.F. notes that "during such time as the Advisory
Council and the NCSHPO are signatories, compliance with this PA . . . will be deemed
... compliance with Section 106." [Emphasis supplied.]
Section IV explains the role of the FOSC in considering the effect of emergency
response activities on historic properties during planning and emergency response under
the NCP. Significantly, as explained above, IV.A. does not interpret the legal '
requirements of Section 106; it merely specifies the responsibilities of the FOSC "[fjor
the purpose of this PA." Also, Section IV now contains new language describing the
assistance to the FOSC to be provided by the National Program Center (NPC) of the
National Park Service. The inclusion of the NPC language satisfies long-standing
concerns expressed by. EPA members of the Committee as to the level of assistance
available to FOSCs,
Section V further elaborates how historic properties are to be considered during
pre-ineident planning. Section VI spells out the specific actions to be taken to consider
the effect of emergency response actions on historic properties, including activating the
mechanisms and pir>cedures developed during pre-incident planning. Section VI also
lists potential adverse effects of a spill or release and of emergency response actions on
historic properties. Section vn provides for development of regional PAs tailored to
address local concerns and conditions.
The last textual portion of the PA, Section VIQ, describes the signature and
withdrawal process!. It is important to note that while any signatory is free to withdraw
from the agreement with thirty days' written notice, no signatory can unilaterally
terminate the PA. In the event of a legal challenge, this will enable remaining
signatories to contend in good faith that they are in substantive compliance with any
applicable requirements of Section 106 of the NHPA. Of equal importance, it will
enable remaining signatories to continue to utilize the procedures set out in the PA in
order to consider the potential effect of emergency response on historic structures.
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PROGRAMMATIC AGREEMENT ON
PROTECTION OF HISTORIC PROPERTIES
DURING EMERGENCY RESPONSE UNDER THE
NATIONAL OIL AND HAZARDOUS SUBSTANCES
POLLUTION CONTINGENCY PLAN
I. PURPOSE
A. The signatory federal Departments and Agencies enter into this Programmatic
Agreement (PA) to ensure that historic properties are taken into account in their
planning for and conduct of the emergency response under the National Oil and
• Hazardous Substances Pollution Contingency Plan (NCP). 40 CFR Part 300.
The National Conference of State Historic Preservation Officers (NCSHPQ) is
also a signatory, on behalf of State Historic Preservation Officers (SHPOs), to
facilitate federal agency ability to develop and execute a uniform nationwide
approach for considering and treating historic properties before and during
emergency response. In the event an individual SHPO is unable to respond, the
Agency or Department may contact the NCSHPQ or the Advisory Council on
Historic Preservation (ACHP) to consider alternatives and receive assistance:
The signatories agree that their Departments/Agencies will follow this PA or, to
meet regional needs, develop regional PAs that are not inconsistent with this PA
and the National Historic Preservation Act of 1966, as amended (NHPA), P.L.
89-665, 16 U.S.C. § 470 el seq.T and the regulations promulgated thereto.
B. The NCP does not provide specific guidance for taking-historic properties into
account during emergency response to an actual or threatened release of a
hazardous substance, pollutant or contaminant or the discharge of oil or other
pollutants (hereinafter, a release or spill). Also, emergency provisions
contained in the regulations implementing Section 106 of the NHPA do not
directly address requirements for such emergency responses. Accordingly, for
the purpose of this PA, an "emergency" shall be deemed to exist whenever
circumstances dictate that a response action to a release or spill must be taken so
expeditiously that normal consideration of the Section 106 process is not
reasonably practicable.
C. The purpose of this PA is to provide an alternative process to ensure
appropriate consideration of historic properties within the meaning of the
NHPA during emergency response .to a release or spill. This PA does not
address the consultation procedures under Section 106 of the NHPA once that
phase of the response action has ended.
D. In carrying out duties under the NCP, including the priorities of protecting
public health and-safety, the federal On-Scene Coordinator (OSC) may have to
make emergency response decisions that adversely affect historic properties. By
following this PA, however, the federal OSC will be making an informed
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decision that takes historic property information into account prior to
authorizing actions that might affect such property.
E. The responsibility of the federal OSC in protecting public health and safety is
paramount. That mission is a difficult one involving problems that cannot be
anticipated and calling for judgment on the part of the federal OSG. Nothing in
this PA changes the national response priorities, nor does it change the effect of
existing law,
F. 36 CFR§ 800.13 provides, inter ajja, that:
- - An Agency Official may elect to fulfill an agency's Section 106.
responsibilities for a particular program , a large or complex
project, or a class of undertakings . . . through a Programmatic
Agreement.
36 CFR § 800.13(e) provides that:
An approved Programmatic Agreement satisfies the Agency's
Section 106 responsibilities for all individual undertakings carried
out in accordance with the agreement until it expires or is
terminated."
During.such time as the ACHP and the NGSHPO are signatories, compliance
• with this PA by a federal OSC will be deemed to constitute compliance with
Section 106 of the NHPA during pre-incident planning and emergency response
activities.
II. LEGAL AUTHORITIES PROTECTING HISTORIC PROPERTIES
i
A. National Historic Preservation Act
1. In 1966, Congress instituted a policy to preserve the Nation's cultural
and historic heritage by enacting the NHPA. The NHPA implementing
regulations most pertinent to actual or threatened releases of hazardous
substances, pollutants or contaminants or oil spills are those of: 1) the
ACHP, an independent federal agency that administers Section 106 of
. the NHPA through procedures specified in 36 CFR Part 800,
"Protection of Historic Properties," and 2) the Department of the
Interior (DOI) regulations at 36 CFR Part 60, National Register of
Historic Places.
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2. Section 106 of the NHPA provides that.federal agencies are to take into
account the effects of "Federal or federally assisted undertakings" on
historic properties that are listed in or eligible for inclusion in the
National Register of Historic Places. It.further affords the ACHP an
opportunity to comment on the undertaking.1
B. This PA does not address other federal laws defining and protecting historic
properties, such as: .
1. The Archaeological Resources Protection Act (ARPA), 16 U.S.C. §
470aa et seq.. which provides for the protection of archeological sites
and other resources. ARPA establishes criminal and civil penalties for
actual or attempted illegal excavation or removal of or damage to
archeological resources; illegal trafficking in archeological resources;
and knowingly causing another to commit an ARPA violation; •
.2. The Native American Graves Protection and Repatriation Act
(NAGPRA), 25 U.S.C. § 3001 et seg., which provides for the protection
of Native American, human remains and other defined classes of cultural
items. NAGPRA also establishes criminal penalties for illegal
trafficking in these cultural items. 18 U.S.C. § 1170;
3. The Antiquities Act of 1906, 16 U.S.C. § 433 et seq.r which establishes
criminal penalties for non-permitted appropriation, excavation, injury, or
destruction of any historic or prehistoric ruin or monument, or any
object of antiquity, situated on lands owned or controlled by the federal
government; and :
1 Section 106 of the NHPA provides, inter alia, a" follows:
Effect of Federal undertakings upon property listed in National Register; comments by
Advisory Council on Historic Preservation
The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or
federally assisted undertaking in any State and the head of any Federal department or
independent agency having authority to license any undertaking shall, prior to approval of the
expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as
the case may be, take irito< account the effect of the undertaking on any district, site, building,
structure, or object that is included in or eligible for inclusion in the National Register. The "
head of any such Federal agency shall afford the Advisory Council on Historic Preservation
... a reasonable opportunity to comment with regard to such undertaking.
16 U.S.C. § 470f.
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4. The National Marine Sanctuaries Act (also known as Title III of the
Marine Protection, Research and Sanctuaries Act, 16 U.S.C. § 1431, et
seq.. which establishes civil penalties for destruction of, loss,of, or
injury to a sanctuary resource, including historic properties. In addition
to fines, parties can also be held responsible for response costs; damages
including replacement cost., restoration cost, or acquisition of an
equivalent sanctuary resource, and lost-use value of that resource and
interest.
C. Many States also have laws defining and protecting historic properties.
: Regional PAs may consider State laws relevant to the historic properties in the
region, to the extent they are riot inconsistent with federal law.
III. DEFINITION OF "HISTORIC PROPERTY"
A.. The term "historic property" is defined in the NHPA as: "any prehistoric or
historic district, site, building, structure, or object included in, or eligible for
inclusion on the National Register;" such term includes artifacts, records, and
remains which,,are related to such district, site, building, structure, or object. 16
U.S.C. §470(w)(5).
B. Criteria for listing a property in the National Register of Historic Places are
found at 36 CFR Part 60. The statutory definition of historic properties and the
established criteria determine whether a historic property needs to be considered
during emergency response. A historic property need not be formally listed on
the National Register to receive NHPA protection, it need only meet the
National Register criteria (i.e., be eligible for listing in the National Register).
Section VI.C.2, below, discusses determining the National Register eligibility
of historic properties during emergency response.
i • • ' •
IV. RESPONSIBILITY FOR HISTORIC PROPERTIES CONSIDERATION
A. For the purpose of this PA, the federal OSC, as trie federal official designated
to coordinate and direct response actions, is responsible for ensuring that
historic properties are appropriately considered in planning and during
emergency response.
B. Planning Support/Coordination
1. The NCP, at 40 CFR § 300.210(c), provides that Area Contingency
Plans (ACPs) are to be developed under the direction of a federal OSC.
The federal OSC shall ensure that ACPs include the information on
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consideration of historic properties and are developed in consultation
with the parties specified in Section V of this agreement.
2. Federal agencies with expertise in protection of historic properties
available to assist the federal OSC during preparedness planning include
the Department of the Interior,2 the ACHP, and other federal land-
managing agencies for properties on their lands. The primary source of
information on historic properties in an area, particularly properties not
on federal lands, is the SHPO, who is the official appointed by the
Governor as part of the State's participation in NHPA programs. Other
parties that may assist are listed in V. A. of this PA.
3: The National Program Center (NPC) of the National Park Service,
consistent with its authority and responsibilities, will provide
coordination of appropriate expertise to Area Committees and Regional
Response Teams (RRTs) for pre-incident planning activities through the
United States Coast Guard (Coast Guard) and the United States
Environmental Protection Agency (EPA). The NPC will coordinate
through the Commandant of the Coast Guard and the Office ^f
Emergency and Remedial Response of EPA.
4. Prior to finalizing or subsequently revising ACPs, the federal, OSC will
provide a draft of sections addressing historic properties identification
and protection to the parties identified in Section V. A. of this PA. Each
party shall have 30 calendar days from receipt to review the draft and
provide comments to the federal OSC. Should any reviewing party file a
timely objection to the draft or any portion thereof, the federal OSC will
consult with 'the objecting party to resolve the objection. If the objection
cannot be resolved, the federal OSC will provide documentation of the
dispute to the ACHP and request their comments. The ACHP comments
will bs taken into account by the federal OSC in finalizing or revising
ACPs.
1 40 CFR § 300.175(b)(9) reads, in pertinent part, as follows:
*X)I may be contacted through Regional Environmental Officers (REOs), who are the designated
members of RRTs. . . . [BJureaus and offices have relevant expertise as follows:
. . . (viii) National Park Service: General biological, natural, and cultural
resource managers to evaluate, measure, monitor and contain threats to park
'system lands and resources; archaeological and historical expertise in
protection, preservation, evaluation, impact mitigation, and restoration of
cultural resources ...
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C. Emergency Response Support/Coordination
1. To ensure historic properties are considered during emergency response,
the federal OSC must have access to reliable and timely expertise and
support in order to make timely and informed decisions about historic
properties. .
2. A federal OSC may obtain historic properties expertise and support in
any one of several ways. These include implementing an agreement
with State or federal agencies that have historic properties specialists on
staff (see IV.B.2), executing a contract with experts identified in ACPs
or hiring historic properties specialists on staff. Historic properties
specialists made available under contract or hired must:
a. Meet the qualifications listed in the Secretary of the Interior's
Standards and Guidelines for Archeology and Historic
Preservation. 48 Federal Register 44738-39 (September 29,
1983); see Appendix II; and
b. Be available to assist the federal OSC whenever needed.
V. PRE-INCIDENT PLANNING
A. As part of pre-incident planning activities, federal OSCs (or the OSC's
management) shall consult with the SHPO, federal land-managing agencies,
appropriate Indian tribes and appropriate Native Hawaiian organizations, as
defined in Section 301 of the NHPA, and the other interested parties identified
during pre-incident planning, as described in Section IV.B of this PA, to:
1. Identify historic properties.
a. Identify: 1) historic properties that have been listed in or
determined eligible for inclusion in the National Register of
Historic Places that might be affected by response to a release or
spill; and 2) unsurveyed areas where there is a high potential for
the presence of historic properties.
b. Identify exclusions. These may be specific geographic areas or
types of areas where, should a release or spill occur, historic
properties are unlikely to be affected. This includes the specifics
listed in Appendix I and any additional exclusions agreed on by
the signatories to this or a regional PA. Incidents in areas
covered by exclusions would not require consideration for
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protection of historic properties, except as provided in Section
VI.A.l.3
2. Develop a list of parties that are to be notified in the event of an incident
in a non-excluded area. This list should include the SHPO for the State
in which the incident occurred, federal and Indian tribal land owners or
land managers and Hawaiian Native organizations in the area where the
incident occurred, if any.
3. Develop emergency response strategies that can be reasonably
anticipated to protect historic properties. The federal OSC shall ensure
that response strategies, including personnel and equipment needed, are
developed to protect or help protect historic properties at risk. This
includes consideration of the sensitivity of historic properties to
emergency response measures proposed in ACPs or other response
plans, including chemical countermeasures and in situ burning.
B. The federal OSC shall ensure that historic properties protection strategies can be
carried out by: .
1. Identifying who will be responsible for providing expertise on historic
properties matters to the federal OSC during emergency response.
Depending on the size and complexity of the incident, a federal OSC
historic properties specialist or a historic properties technical advisory
group convened by the specialist may be the most effective mechanism;
2. Providing information on availability of appropriate training for historic
property specialists to participate in emergency response, e.g..
Hazardous Waste Operations and Emergency Response (HAZWOPER)
training, familiarity with all relevant contingency plans and response
management systems, etc.; and
3. Working with the parties listed in section V. A. to obtain information for
response personnel on laws protecting and activities that may potentially
affect historic properties.
3 Response to spills or releases that involve non-excluded areas should be considered to have the potential to
adversely affect historic properties that are listed in or eligible for inclusion in the National Register.
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VI. FEDERAL LEAD EMERGENCY RESPONSE
A. .The federal OSC shall determine whether the exclusions described in section
V.A.l.b. apply.
1. If the incident affects only excluded areas, no further actions are
necessary under this PA, unless: ,
a. Previously unidentified historic properties are discovered during
emergency response; or
b. The SHPO (or appropriate federal, Indian, or Hawaiian Native
organizations) notifies the federal OSC that a categorically
excluded release or spill may have the potential to affect a
significant historic property.
\
2. If the area where a release or spill occurs has not been excluded, in the
cases specified in Section VI.A.I.a or b, if the federal OSC is unsure
whether-an exclusion applies, or if the specifics of the incident chmge so
that it no longer fits into one of the exclusions, the remaining steps in
this Section shall be followed.
B. Activate the agreed-upon mechanism for addressing historic properties,
including notification of the parties identified pursuant to Section V.A.2., and
consultation with these parties concerning the identification of historic
properties that may be affected, assessing the potential effects of the^emergency
response, and developing and implementing emergency response activities.
These requirements for notification and consultation shall be satisfied if the
federal OSC makes reasonable and timely efforts to notify and consult the
parties listed in this Section. Thereafter there shall be additional consultation to
the extent practicable,
C. Verify identification of historic properties.
1. Consult with the SHPO, landowners and/or land managers, appropriate
Indian tribes and Native Hawaiian organizations, and other interested
parties identified in pre-incident planning to verify the location of
historic properties identified during the planning process and determine
if other historic properties exist in areas identified in V.A. l.a.2. that
might be affected by the incident or the emergency response.
2. If newly discovered or unanticipated potential historic properties are
encountered during emergency response actions, the federal OSC shall
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either: 1) consult with the SHPO (or appropriate federal, Indian, or
Hawaiian Native organizations) to determine if the properties are eligible
for inclusion in the National Register, or 2) treat the properties as
eligible. ..
D. Assess potential effects of emergency response strategies on historic properties.
Such assessment shall be done in consultation with the parties listed in Section
V.A.
1. The potential adverse effects of releases or spills and of emergency
response on historic properties may include, but are not limited to:
a. Physical destruction, damage, .or alteration of all or part of the
historic property;
b. Isolation of the property from or alteration of the character of the
property's setting when that character contributes to the
property's qualification for the National Register; and
c. Introduction of visual, audible, or atmospheric conditions that are
out of character with the property or alter its setting:
2. Emergency response actions that may have adverse effects on historic
properties include, but are not limited to:
a. The placement of physical barriers to deter the spread of released
or spilled substances and the excavation of trenches to stop the
spread of the released or spilled substances; and
b. Establishing camps for personnel, constructing materials storage
and staging yards, excavating borrow pits for fill materials, and
constructing alignments for road access.
3. Direct physical contact of historic properties with released or spilled
substances may result in one or more of the following: 1) inability to
radio'carbon date the contaminated resources; 2) acceleration of
deterioration of an object or structure; or 3) prevention of identification
of historic properties in the field. As a result, important scientific, .
historic, and cultural information may be lost.
E. Make and implement decisions about appropriate actions. The federal OSC
shall take into account professional comments received from the parties listed in
Section V.A. in making decisions that might affect historic properties.
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1. Emergency response strategies delineated in plans may need to be.
reviewed based on information available at the time of an actual .
incident. The purpose of this review is to evaluate whether
implementation of the strategies in the plan might, for the emergency
response action that is underway, adversely affect historic properties
and, if so, how such effects might be avoided or reduced.
2. Make arrangements for suspected artifact theft to be reported to the
SHPO, law enforcement officials, and the landowner/manager.
3. Arrange for disposition of records and collected materials.
4; Ensure the confidentiality of historic property site location information,
- consistent with applicable laws, so as to minimize opportunities for
vandalism or theft.
' *
F. Whenever the federal OSC determines the requirements of this Section cannot
be satisfied concurrently with the paramount requirement of protecting public
health and safety, the determination shall be documented in a writing including
the name and title of the person who made the determination; the date of
determination; and a brief description of the competing values between public
health and safety and carrying on the provisions of this Section.
Notwithstanding such a determination, if conditions subsequently permit, the
federal OSC shall endeavor to comply with the requirements of this Section to
the extent reasonably practicable.
VII. REGIONAL PAs
A: Regional PAs may be developed as provided in I.A. as an alternative to this
national PA. Regional PAs are to include the provisions of this PA and may
include appropriate additional provisions responsive to regional concerns.
B. A regional PA should be signed by appropriate regional-level federal officials,
State agencies, tribal offkiials and the ACHP.
C. Either this PA or a PA developed at a regional level may be adopted by the
RRT and incorporated or referenced in Regional Contingency Plans (RCPs), 36
CFR § 300.210(b), and ACPs in the region.
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VIII. AUTHORITY, EFFECTIVE DATE, WITHDRAWAL, AMENDMENT
A. The signatories below are authorized to sign the PA on behalf of their
respective Department, Agency or organization. This PA may be signed in
counterparts;. ,
B. In order to allow sufficient time for pre-incident planning and other
preparedness activities, this PA shall not be become effective with respect to a
signatory Department or Agency until ninety (90) days after it has been signed
on the Department's or Agency's behalf.
C. , Any signatory may withdraw from this PA by sending, through an official
authorized to act in this matter, written notice to all current signatories at least
thirty (30) days in advance of the effective date of withdrawal. The
i requirements contained in this PA will remain in full force arid effect with
respect to remaining signatories.
D. Nothing herein prevents the signatories from agreeing to amend this PA.
\ . ' '
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
'A - Q\ •- . , .
BY: (J:&t'2V& C\Ttttf-t£
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APPENDIX I
Categorical Exclusion List .
RELEASES OR SPILLS CATEGORICALLY EXCLUDED FROM ADDITIONAL NATIONAL
HISTORIC PRESERVATION ACT SECTION 106 COMPLIANCE
Releases/Spills onto (which stay on):
Gravel pads
Roads (gravel or paved, not including the undeveloped right-of-way)
Parking areas (graded or paved)
Dock staging areas less than 50 years old
Gravel causeways
Artificial gravel islands
Drilling mats, pads, zind/or berms
Airport runways (improved gravel strips and/or paved runways)
Releases/Spills into (that stay in):
• Lined pits: e.g.. drilling mud pits and reserve pits
• Water bodies where the release/spill will not: 1) reach land/submerged land; and 2) include
emergency response activities with land/submerged land-disturbing components
• Borrow pits
• ' Concrete containment areas .
Releases/Spills of:
Gases (e.g.. chlorine gas)
IMPORTANT NOTE TO FEDERAL OSC: 1) IF YOU ARE NOT SURE WHETHER A RELEASE OR SPILL
FITS INTO ONE OF THE CATCGORIES LISTED ABOVE; 2) IF AT ANY TIME, THE SPECIFICS OF A
RELEASE OR SPILL CHANGE SO IT NO LONGER FITS INTO ONE OF THE CATEGORIES LISTED
ABOVE; 3) IF THE SPILL IS GREATER THAN 100,000 GALLONS; AND/OR 4) IF THE STATE HISTORIC
PRESERVATION OFFICER NOTIFIES YOU THAT A CATEGORICALLY EXCLUDED RELEASE OR
SPILL MAY HAVE THE POTENTIAL TO AFFECT A HISTORIC PROPERTY, YOU OR YOUR
REPRESENTATIVE MUST FOLLOW THE SECTION VI. OF THIS PA.
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APPENDIX II
SECRETARY OF THE INTERIOR'S STANDARDS
FOR ARCHEOLOGY AND HISTORIC PRESERVATION
48 Federal Register 44738-39 (September 29, 1983)
Professional Qualifications Standards
The following requirements are those used by the National Park Service and have been previously published
in the Code of Federal Regulations 36 CFR Part 61. The qualifications define minimum education and experience
required to preform identification, evaluation, registration, and treatment activities. In some cases, additional areas
or levels of expertise may be needed depending on the complexity of the task and the nature of the historic properties
involved. In the following definitions, a year of full-time professional experience need not consist of a.cominuous
year of full-time work but may be made up of discontinuous periods of full-time or part-time work adding up to the
equivalent of a year of full-time experience.
History
H: • - - '
The minimum professional qualifications in history are a graduate degree in history or closely related field:
. or a bachelor's degree in history or closely related field plus one of the following:
1. At least two years of full time experience in research, writing, teaching, interpretation, or the
demonstrate professional activity with an academic institution, historic organization or agency,
museum, or other professional institution; or
2. Substantial contribution through research and publication to the body of scholarly knowledge in the
field of history.
Archeology
The minimum professional qualifications in archeology are a graduate degree in archeology, anthropology,
or closely related field plus: , ,
.<: ' .
1. At least one year of full-time professional experience or equivalent specialized training in
archeological research, administration or management;
.2. At least four months of supervised field and analytic experience in general North American
archeology; and
3. Demonstrated ability to carry research to completion.
In addition to these minimum qualifications, a professional in prehistoric archeology shall have at least one
year of full-time professional experience at a supervisory level in the study of archeological resources of the
prehistoric period. A professional in historic archeology shall have at least one year uf full-time professional
experience at a supervisory level in the study of archeological resources of the historic period.
Architectural History -
The minimum professional qualifications in architectural history are a graduate degree in architectural history,
art history, historic preservation, or closely related field, with coursework in American architectural history; or a
bachelor's degree in architectural history, art history, historic preservation or closely related field plus one of the
following:
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1. At least two year of full-time experience in research, writing, or teaching in American architectural
history or restoration architecture with an academic institution, historical organization or agency,
" museum, or other professional institution; or ',
2. Substantial contribution through research and publication i he body of scholarly knowledge in the
field of American architectural history.
Architecture
The minimum professional qualifications in architecture are a professional degree in architecture plus at least
two years of full-time experience in architecture: or State license to practice architecture.
Historic Architecture
The minimum professional qualifications historic in architecture are a professional degree in architecture or
a State license to practice architecture, plus one of the following:
1. At least one year of graduate study in architectural preservation, American architectural history,
preservation planning, or closely related field; or •
2. At least one year of full-time professional experience on historic preservation projects.
Such graduate study or experience shall include detailed investigations of historic structures, preparation of
historic structure research reports, and preparation of plans and specifications for preservation projects.
. »
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SECTION 106/EMERGENCY RESPONSE PROGRAMMATIC AGREEMENT
QUESTIONS & ANSWERS
I. Does Section 106 of the National Historic Preservation Act apply to emergency
responses to spills of hazardous substances and oil?
Section 106 of the National Historic Preservation Act requires federal agencies to
consider the effect on historic properties before a federal or federally assisted undertaking. The
NRT Committee was charged with deciding ifand how Section 106 should be followed, not
whether Section 106 is a legal requirement. Both the Committee members and the NRT
agreed that it is important: to protect historic properties during emergency response and that the
OSC, as the.federal official most intimately involved in emergency response, should therefore
consider the impact of emergency response on historic properties.
2. Why a programmatic agreement? Since protecting the nation's cultural resources
is only common sense, why do we need a programmatic agreement?
Although almost everyone agrees that protecting historic properties is important,
understanding how to do set is not that simple, .especially during emergency response to a
release or spill. The Advisory Council on Historic Preservation has promulgated extensive
regulations on Section 106. Professionals, both within and outside the federal government,v
possess expertise on historic properties. The Programmatic Agreement provides a road map
for hiaking an informed judgment on protecting historic properties during emergency response
to a release or spill.
3. If we follow the guidelines of the PA, can we still be sued?
Anyone can be sued for anything. The regulations promulgated by the Advisory
Council on Historic Preservation provide, however, that compliance with the PA will be
deemed to be compliance with Section 106. That means that the government and its
employees are much less likely to be sued and much more likely to prevail if they are sued.
4. Do Section 106 and the PA mean that emergency response can be delayed or
stopped entirely?
No, they do not. The OSC Vfirst priority is protection of public health and the
environment. Nothing in the PA changes that. Neither the PA nor Section 106, moreover,
are designed, to stop an emergency response. Rather they require that the potential effects of
undertakings on historic structures be considered.
5. Can I get help in complying with the PA?
Yes. The:PA details a host of federal, state and private parties who will help the OSC.
These include professionals in the National Program Center of the National Park Service, State
Historic Preservation Officers (SHPOs) and historic property experts. (SHPOs are appointed
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by the Governor of each State as part of the States' participation in National Historic
Preservation Act programs. They are the primary source of information on historic properties
on non-federal lands.) The key to considering potential effects on historic structures is pre-
incident planning, so that expertise is available when the OSC actually requires assistance.
After ah environmental emergency arises funding will be available from the Superfund or the
Oil Spill Liability Trust Fund to pay for assistance to the OSC. All of this is detailed in the
PA. " •. • . . ' ' • • ' • • ;
6. What are the Advisory Council on Historic Preservation and the National
Conference of Historic Preservation Officers and what do I do to obtain their
assistance? .
Both the Advisory Council on Historic Preservation and the National Conference of '
State Historic Preservation Officers are signatories to the Programmatic Agreement. The
Advisory Council is the federal council responsible for administering the National Historic
Preservation Act. The National Conference of State Historic Preservation Officers is the
national organization of SHPOs which signed the Programmatic Agreement on behalf of
individual SHPOs. Both the Advisory Council and the National Conference will provide
general assistance to the OSC and well as help in the event the OSC is unable to enlist the
participation of the SHPO.
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NRT Ad Hoc Cultural Resource Committee April 1997
Programmatic Agreement on Historic Properties and Emergency Response
Summary of the Programmatic
Agreement
The Programmatic Agreement (PA) provides a
process for ensuring appropriate consideration
of historic properties during pre-incident
planning and emergency response. It also
provides for development of regional PAs
tailored to address regional concerns arid
conditions. The PA does hot change the
national response priorities of safety and
stabilization discussed in section 300.317 of the
National Hazardous Substances Pollution
Contingency Plan (NCP).
Background
In response to a request from members of the
Alaska Regional Response Team (ARRT), the
National Response Team (NRT) formed an ad
hoe committee on cultural resources to address
how Section 106 of the National Historic
Preservation Act (NHPA), 16 U.S.C. § 470f,
impinges on emergency response actions
under the NCP. Section 106f requires federal
agencies having direct or indirect jurisdiction
over a proposed federal or federally assisted
undertaking to take into account the effect of
the undertaking on historic properties included
in or eligible for inclusion in the National
Register of Historic Places. The NRT ad hoc
committee was chaired by the Department of
Justice and included representatives from the
Department of Agriculture, the US Coast
Guard, the Department of Commerce/NOAA,
the Department pf Defense, the .Environmental
Protection Agency, the Department of the
Interior, the Advisory Council on Historic
Preservation, and the National Conference of
State Historic Preservation Officers. The PA on
Drotection of Historic Properties during
Emergency Response under the NCP is the
•esult of the committee's work.
Overview of the PA
The PA is divided into eight sections. The first
three sections are introductory.and explanatory.
Section I explains the purpose of the PA.
Sections II and III describe the National Historic
Preservation Act and define "historic property."
Section IV explains the role of the On-Scene
Coordinator (OSC) in considering the effect of
emergency response activities on historic
properties during planning and emergency
response,under the NCP.
Section V further elaborates how historic
properties are to be considered during pre-
incident planning. Section VI spells out the
specific actions to be taken during emergency
response to consider the effect of response
actions on historic properties, including
activating the mechanisms and procedures
developed during pre-incident planning.
Section VI also lists potential adverse effects of
a spill or release and of emergency response
actions on historic properties. Section VII
provides for development of regional PAs
tailored to address regional concerns and
conditions. Finally, Section VIII describes the
signature and withdrawal process'.
Purpose
The PA provides an alternative to the process
specified in section 106 of the NHPA to ensure
appropriate consideration of historic properties
during emergency response to a release or
spill.
NRT Draft - DO NOT CITE OR QUOTE, FOR DISCUSSION PURPOSES ONLY -
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Important Features of the PA
0 Compliance with the terms of this PA will
constitute compliance with section 106 of
, the NHPA. The PA does not commit
signatories to a position on the applicability
of any legal requirements under section
106.
0 The PA requires the potential effects of
response actions on historic properties to
be considered and emphasizes that
effective consideration occurs as part of
planning. It does not require the Federal
On-Scene Coordinator (FOSC) to take or
refrain from any specific response actions.
0 Although the FOSG must ultimately
consider the potential effects of emergency
response actions on historic properties,
federal agencies, State Historic
Preservation Officers, and others are
available to assist in the work necessary to
make such consideration possible. These
include:
1. State Historic Preservation Officers
(SHPO); Officiate appointed by the
Governor as part of the State's
participation in NHPA programs. A list
of SHPO's will be posted and updated in
NOAA's FirstClass E-Mail System under
the NRT Conference - Cultural
Resource Committee Sub conference.
The list of SHPO's may also be obtained
through the Internet at:
http://www.cr.nps.gov/pacl/shpolist.html.
2. Indian tribes and appropriate Native
Hawaiian organizations;
3. The National Program Center (NPC) of
the National Park Service will provide
. coordination of appropriate DOI
expertise to Area Committees and
RRTs for pre-incident planning
activities. The NPC will coordinate
through Coast Guard and EPA
headquarters, at the national level; <
4. Federal land-managing agencies for
properties on their lands or who have
available technical expertise (i.e.
Department of Agriculture, Department
of Energy, and Department of Defense);
5. The Advisory Council on Historic
Preservation (ACHP); an independent
federal agency that administers Section
1Q6 of the NHPA;
6. The Department of the Interior (DOI);
DOI, may be contacted through Regional
Environmental Officers (REOs), who are
the designated members of the RRTs.
The PA outlines actions to be taken during
pre-incident planning and response to.
ensure appropriate consideration of historic
properties. These are summarized in
checklist form in the attachment to this fact
sheet. The corresponding section in the PA
is given in bold at the end of each action
item for easy reference.
POC: Steven R. Baer, Senior Counsel
Environmental Enforcement Section,
Environment and Natural Resource
Division, United States Department of
Justice. Phone:(202)514-2794.
Jan C. Thorman, Environmental
Protection Specialist, Office of
Environmental Policy & Compliance,
United States Department of Interior.
Phone: (202) 208-6304.
Carol Gleichman, Historic Preservation
Specialist Advisory Council on Historic
Preservation, Western Office of Review,
Phone: (303) 969^5110.
Eric Hertfelder, Executive Director,
National Conference of State Historic
Preservation Officers (NCSHPO), . '
Phone: (202) 624-5465.
NRT Draft - DO NOT CITE OR QUOTE, FOR DISCUSSION PURPOSES ONLY -
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PREPARERS
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LIST OF PREPARERS
This manual was prepared for the U.S. Environmental Protection Agency by Maguire Group Inc.
The following people were instrumental in it's development:
David R. Westcott, AICP: Maguire Group Inc.
Principal Planner
Mr Westcott has over 20 years of experience as an Environmental Planner and over 7 years
experience teaching at the graduate level. He is Principal Planner with the Maguire Group and an
Adjunct Professor at the University of Rhode Island. He has been a Project Manager for consulting
contracts with EPA Region I and Region n and has worked in Section 106 Compliance for over 10
years.
John Vetter: U.S. EPA
EPA National Expert, Archeology
Mr Vetter is EPA's national expert in archeology. He is based in Region 2 and has 20 years
experience in applying the National Historic Preservation Act to CERCLA, RCRA, and Construction
Grants programs. He is also chairman of the Anthropology Department at Adelphi University in
Garden City, NY.
Patricia Haman: U.S. EPA,
EPA Federal Preservation Officer
Ms. Haman has been EPA's FPO since January, 1997. She participated extensively in the
development of the recently revised 106 regulations. She also has expertise in NEPA and has been
with the EPA for 14 years.
Robert W Hargrove: U.S. EPA
Contract Manager
290 Broadway, Room 1539
New York, NY 1007-1866
(212)637-3756
Robert Wardwell, AICP: Maguire Group Inc
Contract Manager
One Court Street
New Britain, CT 06051
(860) 224-9141
U.S. EPA Order # 08-0170 -NTLX
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