Agency Commitments and Consequences
Once a Section 106 agreement is executed and filed with the ACHP, the federal agency (and/or applicant) is able to implement the undertaking and it may now approve the expenditure of federal funds on the undertaking or issue a license or permit for the undertaking. Pursuant to Section 110(l) of the NHPA, and 36 CFR § 800.6(c), an executed and implemented MOA or project PA evidences the agency official's compliance with Section 106 and governs the undertaking and all of its parts. The agency official shall ensure that the undertaking is carried out in accordance with the terms of the agreement. Similarly, an agency's compliance with the procedures established by a programmatic agreement for agency programs developed and executed in accordance with 36 CFR § 800.14(b)(2) satisfies the agency's Section 106 responsibilities for all individual undertakings of the program covered by the agreement until it expires or is terminated.
The federal agency must ensure the terms of the Section 106 agreement are met. While actions may be assigned to other signatories in the agreement, including applicants, SHPOs, THPOs, tribes, and NHOs, the responsibility for Section 106 compliance remains with the federal agency. Therefore, the agency should oversee or monitor the progress that is made to fulfill the agreement's stipulations, even in those circumstances where the majority or all of the stipulations are being carried out by other parties, such as an applicant. With this in mind, the agency should avoid commitments it cannot or is unlikely to complete, or cannot ensure that others complete, when drafting the agreement. In addition to resulting in non-compliance with Section 106, breaking such commitments can interject mistrust and uncertainty into long-term working relationships.
SHPO, THPO/Indian Tribe, and ACHP Roles in Monitoring Agreements
An agreement should not assign responsibilities to parties that are not signatories or invited signatories. In addition to the federal agency, signatories such as the SHPO, THPO, and the ACHP may have certain duties under an agreement, including reviewing documentation or other deliverables. As the agency responsible for administering the Section 106 process, the ACHP typically has a unique role in the dispute resolution process in Section 106 agreements. Where an entity that is not a signatory by right pursuant to 36 CFR § 800.6(c)(1) is asked to take an action in a Section 106 agreement beyond simply being allowed the opportunity to review and comment, the federal agency should invite that party to become an invited signatory (36 CFR § 800.6(c)(2)(iii)). For instance, when an Indian tribe is asked to monitor construction activities or participate in an archaeological investigation off tribal lands as a mitigation measure, the agency should invite that tribe to be an invited signatory to the agreement. Concurring parties, who sign an agreement document simply to demonstrate their concurrence with its terms and who lack the authority to amend or terminate the agreement, should not be assigned responsibilities in the agreement. However, a consulting party's signature on an agreement document, whether as a signatory party or a concurring party, is not required for the agency to provide that party an ongoing or future opportunity to consult.
In setting forth the responsibilities of parties other than the federal agency, it is important to remember that, where relevant, agreement documents should provide for the review of documents or action plans by SHPOs, THPOs, and others as appropriate. These stipulations should be worded in such a way so that the SHPOs, THPOs, and others provide comments to the agency within a specified time period (often 30 days), with the agency then considering the comments before moving forward. The agreement generally should not provide for any SHPO/THPO or other tribal official "approval" or "concurrence;" however, in certain situations, the agency may determine that such approval or concurrence is appropriate (e.g., design review). In the Section 106 regulations, the ACHP, SHPO, THPO, and other consulting parties advise and assist the federal agency; Section 106 does not give them the authority to dictate an outcome to a federal agency.
Reporting and Interim Reviews
An agency should consider providing occasional reports to consulting parties on the implementation of an agreement (see 36 CFR § 800.6(c)(4)). In certain agreements, such as program PAs, periodic and regular reporting may be more relevant and important. The timing, content, structure, and distribution of reports may be negotiated during the drafting of an agreement. There is no single approach to reporting; the agency should consider how the information may be used and how it can be best presented to ensure the report has maximum utility. The parties should consider whether the report is intended to serve as a tracking mechanism for the implementation of an agreement, or to provide quality control in a final report at the completion of an agreement. The report should identify openly and honestly any implementation challenges that may have been experienced and if necessary, discuss the possibility of an amendment to the agreement to address those challenges. In some cases, a meeting among the consulting parties may take the place of reporting, or may be used to follow up, support, or discuss a report.
Tracking and oversight. The federal agency should take the primary responsibility to track the progress toward completion of a Section 106 agreement; however, the SHPO and/or THPO are also encouraged to take active roles in monitoring its progress. For example, SHPOs and THPOs may recommend annual meetings with federal agencies wherein they assess the status of all ongoing Section 106 consultations and the implementation of existing agreement documents.
The ACHP itself currently uses a software tracking system to record and follow the progress of Section 106 cases and the implementation of agreement documents. This software can send ACHP staff pre-programmed reminders about project milestones and record updates about the implementation of an agreement. It is important for the federal agency to establish regular review points and provide for ongoing outreach to consulting parties for the duration of an agreement. It is also important for the other parties to the agreement to keep track of these review points and participate in relevant discussions whenever possible.
Sometimes it is not possible for an agency or other parties to an agreement to carry out all of the stipulations as recorded within the original agreement timeframe. A federal agency may elect not to pursue the proposed undertaking, it may decide ultimately to deny a permit, or it may otherwise need to change the scope, direction, or components of a proposed undertaking. Project changes might also necessitate a different approach to avoidance, minimization, and mitigation measures. If an MOA or PA needs to be changed, including a change to extend the duration of the agreement, the changes are recorded in an amendment that looks similar to the MOA format. The title block of the amendment should include "Amendment to" along with the original agreement title. A best practice is to identify in the amendment's preamble how the new, updated agreement will be referenced in all future project documentation, such as, "Memorandum of Agreement among Agency X and the Y State Historic Preservation Officer for the Large Construction Project, as amended March 20, 2014 (Large Project MOA, as amended 3/20/14)." Amendments are executed in the same manner as the original agreement. In other words, the same signatories and invited signatories sign, and a fully-executed copy is filed with the ACHP.
Closing Out an Agreement
There are occasions when the terms of an agreement are no longer in force. In those cases, a federal agency may decide to issue a formal notice as a means of closing out the agreement. Note that this is different from terminating an agreement, which may occur when the terms of the agreement are not being or cannot be carried out. See Terminating an Agreement below.
If a federal agency executes a Section 106 agreement, but then decides to not carry out, assist, or permit the proposed undertaking prior to any physical work actually beginning, it may no longer have any Section 106 responsibilities for that undertaking. In this case, the federal agency may elect to vacate the agreement by sending written notice to all consulting parties of the change in circumstances and its decision to vacate the agreement. If work related to the undertaking has already begun in some manner, for example, archaeological survey was started or initial ground disturbance occurred, the federal agency cannot vacate the Section 106 agreement and instead, must amend its terms to provide for the changed circumstances.
When all of the terms of an agreement have been carried out and the agreement has expired in accordance with its duration clause, the federal agency should send written notice to the other signatories and consulting parties, informing them to that effect. While not required by the regulations, this written notice advises the parties that the agency believes it has met its Section 106 obligations, thereby providing evidence of formal closure of the process. It also allows the parties to raise any questions they may have about the adequacy of the agency's efforts.
A notice of completion also provides the agency an opportunity to seek the views of the signatories and other consulting parties on the effectiveness of the agreement in resolving the adverse effects and addressing the agency's needs and requirements. The ability to reflect on the process and identify lessons learned and best practices could be invaluable to the agency in moving forward and refining its approach to future Section 106 reviews.
If the terms of an agreement have been met but the agreement remains in effect due to a longer duration clause, the agency should consider amending the agreement to alter its duration clause, recognize the work completed, and provide for the completion of its Section 106 responsibilities.
Terminating an Agreement
A signatory or invited signatory (who has signed the agreement) may terminate the agreement. An agreement may be terminated because its terms cannot be met. Terminating an agreement is a step that should not be treated lightly. Prior to terminating an agreement because its terms cannot be carried out, the signatories should consult to determine whether an amendment to the agreement might be feasible and appropriate. Once an agreement is terminated and before continuing with the undertaking, the responsible federal agency must either enter into a new Section 106 agreement for the specific undertaking or project, or request and consider the comments of the ACHP pursuant to 36 CFR § 800.7. Should a programmatic agreement for an agency program or for multiple undertakings be terminated, the agency must comply with 36 CFR §§ 800.3-800.7 for each individual undertaking that was covered by the agreement.
Once an agreement expires pursuant to its duration provision, it cannot be extended or amended. If the agreement expires before the undertaking or mitigation measures have been completed, the federal agency must reinitiate consultation to develop a new agreement to resolve the adverse effects from the undertaking. The new agreement may acknowledge, incorporate, or continue already agreed upon measures.
A Section 106 agreement is a legally binding document. The failure of an agency to fulfill its terms is a violation of federal law and may ultimately lead to litigation and court enforced actions. Prior to that point, where an agency cannot meet certain obligations in the agreement or disagreements arise among the signatories about the implementation of its terms, the agency should utilize the dispute resolution, amendment, or termination provisions.