Successful consultation adheres to the proper sequence of steps in the Section 106 review process. Keep in mind that the Section 106 process begins with a broad range of possibilities that are refined through consultation to reach a focused resolution. One step builds on another. If a step is taken out of sequence or skipped altogether, it is likely that the agency will have to go back and fulfill that missed responsibility (e.g., to determine the Area of Potential Effects (APE) or identify historic properties or consult about eligibility). This may cause delays and funding or resource allocation issues.
The Section 106 regulations address the development of an MOA only after the federal agency, through consultation with the SHPO/THPO, Indian tribes, NHOs, and other consulting parties (including applicants, local governments, and possibly the ACHP), has completed earlier steps to establish the APE, identify historic properties, assess the potential effects of its undertaking on them, and determine that its undertaking may adversely affect a historic property.
While agencies may choose to record information and recommendations relating to the resolution of adverse effects that may result from consultation prior to the completion of these steps, the ACHP recommends that it not present these ideas in the form of a draft MOA until these steps are complete and consultation has specifically focused on the development of an MOA. Otherwise, the agency may send the message that it has already made up its mind on appropriate steps and does not value the input that consulting parties might provide in further consultation.
When it becomes necessary to draft an MOA, the agency should work to solicit ideas, suggestions, and input from consulting parties and the public to inform the drafting process and the development of proposed measures to avoid, minimize, or mitigate the adverse effects. The MOA documents how the agency would resolve the adverse effects to historic properties. It is a best practice to record agreed-upon measures in stipulations as consultation on the development of an MOA proceeds, so all consulting parties can see and understand the progress of developing the agreement document.
In some situations, where an agency proposes to develop a PA to govern the implementation of a particular program or the resolution of adverse effects from complex project situations or multiple undertakings, the drafting process may begin earlier. Where an agency elects to start drafting the PA as consultation proceeds, for example to provide for a phased approach to the identification and evaluation of historic properties, it is important to outline the relevant issues for discussion, ensure all the consulting parties understand the intent and terms of suggested measures, and refine the outline to clarify commitments and provide necessary detail in the final document.
Consultation to resolve adverse effects should be an active exchange of ideas and information between the federal agency and other Section 106 participants. As defined in 36 CFR § 800.16(f), consultation "means the process of seeking, discussing, and considering the views of other participants, and where feasible, seeking agreement." The agency should manage the consultation process to ensure the meaningful involvement of all consulting parties while working to seek agreement, where feasible, among all the parties about (1) why properties are significant, and to whom; (2) what historic properties may be affected by an undertaking; and (3) how any adverse effects to them might be avoided, minimized, or mitigated.
In order to participate effectively in the federal decision-making process, Section 106 participants must be well informed. Agencies should consider whether appropriate and relevant information has been shared with consulting parties and opportunities for broader public outreach have been explored. The agency should provide quality information in a clear, complete, and timely manner, and should make consulting parties aware of project timelines, milestones, agency obligations, limitations, and scope. This also helps guard against unrealistic expectations regarding agency responsibilities and what it can and cannot do. The agency should also ensure relevant information is shared with the public on the direction of the consultation process and disclose Section 106 determinations and decisions as they are made.
The ACHP has developed several guidance documents to assist federal agencies and consulting parties in understanding their roles and responsibilities in the Section 106 process. When consulting on controversial or complex undertakings, an agency may also consider utilizing alternate dispute resolution (ADR) principles or facilitation. For more information on ADR, visit www.adr.gov and www.udall.gov.
Involving the Public
The views of the public are essential to informed federal decision making in the Section 106 process. The regulations implementing Section 106 call for the federal agency official to actively seek and consider the views of the public as the Section 106 review process moves forward. MOAs and PAs are public documents that in some cases are provided to the public for review and comment prior to execution. In other cases, the MOA or PA may call for the agency to provide for public review and comment on specific items or plans. The regulations (36 CFR § 800.2(d)) ask that the agency consider several factors in determining the level of public involvement: the nature and complexity of the undertaking and its effects on historic properties, the likely interest of the public in the undertaking, and the presence of any confidentiality concerns.
The regulations also say that the agency may use its NEPA procedures for public involvement so long as they provide adequate opportunities for public involvement at appropriate steps in the process. Best practices for public involvement include hosting meetings that are open to the public, and providing information about the agency's plans through newspaper articles, Web sites, radio announcements, and social media.