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Travel Management PlanningProgrammatic Agreement
Web Conference
WELCOME
8, 16, & 18 March 2017
Section 106 of the NHPA
54 U.S.C. 306108
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 the 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 into 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 established under Title II of this Act a reasonable opportunity to comment with regard to such undertaking.
In short…
Section 106 requires federal agencies to take into account the effects of their undertakings on historic properties and afford the Advisory Council Historic Preservation an opportunity to comment.
Section 106
• All federal agencies under the executive branch of the U.S. government are subject to Section 106
• Compliance with Section 106 is a federal agency responsibility• Section 106 process is to ensure that federal agencies consult with
interested parties to:– Identify & evaluate historic properties– Assess the effects of their undertakings on historic properties
• Section 106 encourages a preservation outcome, but does not require it
• Section 106 ensures that a federal agency assumes responsibility for the consequences of its undertakings on historic properties
Regulations
36 CFR 800 “Protection of Historic Properties”
Implements Section 106 of the NHPA– Mandates the historic preservation review process, which is
sometimes referred to as the:
Section 106 Process
Section 106 Process
1. Initiate Section 106 Process
2. Identify Historic Properties
3. Assess Effects
4. Resolve Adverse Effects
Initiation of the 106 Process
• Establish that the activity is an undertaking– any project, activity, or program that can result in changes in the character or use of
historic properties, if [the properties] are located in the area of potential effects. The project, activity, or program must be under the direct or indirect jurisdiction of a Federal agency, or licensed or assisted by a Federal agency. Undertakings include new and continuing projects, activities, or programs and any of their elements not previously considered under Section 106.
• Identify appropriate SHPO/THPO• Identify other consulting parties• Involve the public
Identify Historic Properties
• Determine scope of efforts• Identify historic properties• Evaluate the historic significance of the properties
identified.– Evaluate for National Register eligibility
Findings of Effect
There are only 3 findings of effect per the 36 CFR 800 regulations:
1. Adverse Effect2. No Adverse Effect3. No Historic Properties Affected
Assess Effects
• Apply criteria of adverse effect (Defined in 36 CFR 800.5)
800.5(a)(1) An adverse effect is found when an undertaking may alter, directly orindirectly, any of the characteristics of a historic property that qualify theproperty for inclusion in the National Register in a manner that woulddiminish the integrity of the property's location, design, setting, materials,workmanship, feeling, or association.
800.5(a)(2) Examples of adverse effects include physical destruction or damage;alteration not consistent with the Secretary of the Interior’s Standards; relocation ofa property; change of use or physical features of a property’s setting; visual, atmospheric, or audible intrusions; neglect resulting in deterioration; or transfer, lease, or sale of a property out of Federal ownership or control without adequate protections
Resolve Adverse Effects
• Development of a Programmatic Agreement is one way to accomplish resolution of potential adverse effects.– PAs are described in 36 CFR 800.14– Legally binding contracts in courts of law– Evidences agency’s compliance with 106
Use of Programmatic AgreementsExecution of a PA evidences the agency’s compliance with 106• When effects on historic properties cannot be fully
determined prior to approval of an undertaking• When effects on historic properties are similar and
repetitive• Where routine management activities are undertaken at
Federal installations or land management units• Where circumstances warrant a departure from the normal
106 process (36 CFR 800.3 – 800.7)
Parts of a Programmatic Agreement
1. Title: Identifies the undertaking and the signatories to the agreement. It will also indicate whether the document is a Memorandum of Agreement or a Programmatic Agreement.
Parts of a Programmatic Agreement
2. Preamble: Notes the statutory authority for the undertaking; introduces the signatories; provides relevant background facts about the project, activity, or program; briefly describes the Section 106 consultation process; identifies the consulting parties.
Parts of Programmatic Agreement
3. Stipulations: Form the heart of the agreement by detailing each of the avoidance, minimization, or mitigation measures the federal agency has agreed to ensure are implemented.
Parts of a Programmatic Agreement
A rule of thumb on how to frame "whereas" clauses in the preamble versus "stipulations" in the body of the agreement is that "whereas clauses" should state facts that exist at the time the agreement document is executed, and "stipulations" should denote actions the agency commits to ensuring are carried out in the future, after the agreement document is executed.
The Web Page
Comment Matrix - Reviewer’s Copy
Comment Matrix
Draft Outline
Draft Outline - Preamble
Draft Outline - Stipulations
Helpful Links
• http://www.achp.gov/progalt/Advisory Council web page on
programmatic agreements.• http://www.achp.gov/docs/CitizenGuid
e.pdf Advisory Council brochure A Citizen’s Guide to Section 106.
Contact Information
Matt Basham, BLM State Archaeologist602-417-9216
William “Bill” Gibson, Travel Management Coordinator602-417-9425
Leslie Mead, [email protected]
