Adverse Effects

What is an “adverse effect” ?

When a project will affect a historic property, the agency must apply the criteria of adverse effect to determine if the effect will be adverse, or negative. Adverse effect is defined in 36 CFR § 800.5(a)(1) as an action that may: “alter, directly or indirectly, any of the characteristics 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. . . 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.” Adverse effects include, but are not limited to: demolition; alteration; removal of a property from its original setting; neglect; abandonment; or the introduction of visual, atmospheric, or audible elements.

What should we do if we get a response from the SHPO telling us that our project will have an adverse effect on an historic property?

The letter that you receive from our office will outline the steps to be taken:

(1) Per 36 CFR § 800.6(a), the Agency shall continue consultation with the SHPO and other consulting parties to develop and evaluate alternatives or modifications to the undertaking s that could avoid, minimize or mitigate adverse effects on historic properties. The Agency shall submit a case study outlining these efforts for review by the SHPO.

(2) In accordance with 36 CFR § 800.6(a)(4), the Agency shall make information regarding this finding available to the public, providing the public with an opportunity to express their views on resolving adverse effects of the undertaking s . Pursuant to 36 CFR § 800.11(e), copies or summaries of any views provided by consulting parties and the public shall be made available to the SHPO as part of the case study outlined in (1).

(3) The Agency shall immediately notify the Advisory Council on Historic Preservation (ACHP), Old Post Office Building, 1100 Pennsylvania Avenue, NW, Suite 809, Washington, D.C. 20004, of the adverse effect finding per 36 CFR § 800.6 (a)(1). The notification to the ACHP should be similar to the project information submitted to this office and should include the following documentation as outlined in 36 CFR § 800.11(e).

• A description of the undertaking, specifying the federal involvement, and its area of potential effects, including photographs, maps and drawings, as necessary.
• A description of the steps taken to identify historic properties.
• A description of the affected historic properties, including information on the characteristics that qualify them for inclusion in the National Register of Historic Places.
• A description of the undertaking’s effects on historic properties.
• 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.
• Copies or summaries of any views provided by consulting parties and the public.

 

(4) The Agency shall invite the ACHP to participate in consultation if the undertaking will affect a National Historic Landmark, if a Programmatic Agreement will be developed as a result of the finding of adverse effect, or if the Agency wants the ACHP to participate in consultation. The ACHP will advise of its decision to participate in consultation within fifteen (15) days of receipt of this notification or other request. If the ACHP chooses not to participate in consultation, the Agency shall resolve the adverse effect without ACHP participation and pursuant to 36 CFR § 800.6(b)(1).

(5) If the Agency, the SHPO and, if applicable, the ACHP agree on how the adverse effects will be resolved, they shall execute a Memorandum of Agreement (MOA) pursuant to 36 CFR § 800.6(c).

(6) If the Agency and the SHPO fail to agree on the terms of the MOA, the Agency shall request the ACHP to join the consultation. If the ACHP decides to join the consultation, the Agency shall proceed in accordance with 36 CFR § 800.6(b)(2). If the ACHP decides not to join the consultation, the ACHP will notify the Agency and proceed to comment in accordance with 36 CFR § 800.7.

Could you put that into plain English, please?

1. Call me!  (1) above requires continued consultation with the SHPO.  We can talk about the project.  I’ll ask you to look at alternatives or modifications to the project that could minimize or avoid the adverse affect, and ask you to review the feasibility of those options.  You will need to submit a written report addressing the possible alternatives/modifications that would minimize/avoid the adverse effect and why those alternatives/modifications are or are not feasible. Consulting parties sould be involved in developing the case study of alternatives and the study should include public comment.

2. Consulting parties – you will need to identify any potential consulting parties in the project and get them involved in resolving the adverse effect.  Typically they might include Native American tribes, citizen groups, local government officials, historical societies, historic district commissions, affected property owners, etc.  The Section 106 regulations define consulting parties at 36 CFR Part 800.3(e) and 800.6(a)(2).  Anyone with a demonstrated interest in the project can submit a written request to you to become a consulting party.

3.  We will need copies of any public comment on the project. If you haven’t yet received public comment, you’ll need to do so.   The public has a right to comment on the project and be involved in resolving adverse effects.  There is no definition of how the public should be informed; methods shouldcorrespond to the nature and scale of an undertaking. Large or controversial projects may require public meetings, public notices in the newspaper, etc. For smaller projects a notice in the newspaper or letters to residents of an affected area may be sufficient. Public comment obtained in compliance with the National Environmental Policy Act (NEPA) is acceptable.

Public comment has to be sought and obtained in a meaningful way. Lawsuits have resulted because a group of citizens did not believe that their views were adequately sought or considered and their right to comment was denied.  The SHPO takes public comment seriously and comments contribute to our evaluation of projects.  If there is a lot of concern with, or opposition to, the project, you may want to re-evaluate what it is you are doing and how you plan to do it.

4. You will need to notify the Advisory Council for Historic Preservation (ACHP) of the adverse effect.  You should send them a copy of the information you submitted to us for the initial review, along with a copy of our adverse effect response and copies of any public comments received concerning the project. 

5.  If we agree on how to mitigate the adverse effects of the project, we’ll work out a Memorandum of Agreement for the project. The MOA will guide how the project proceeds (see #7 below).  The ACHP may be invited to participate in the MOA process if 1) you would really like the ACHP to be involved; 2) the undertaking will have an adverse effect on a National Historic Landmark (which is not necessarily the same as being listed on the National Register); or 3) we’re working out a programmatic agreement.  Generally the ACHP will not get involved unless the project is controversial.

6. Mitigation -   mitigations means how you will compensate for the adverse effect.  Types of mitigation may vary depending on the nature of the project.  The SHPO encourages all parties to be open-minded and creative when considering mitigation.  Keep in mind that this is a negotiating process.

7.  If we can agree to procedures to minimize, mitigate, or avoid the adverse effect to the historic property, we’ll write up the details in an MOA. This will occur after we have accepted the case study, reviewed the public comment, and agreed that the adverse effect of the project cannot be avoided.  You will also need to consult with the SHPO and other consulting parties regarding how to mitigate the adverse effect.  If you, the SHPO, and the ACHP (if applicable) agree as to how inpacts will be mitigated, an MOA is developed.  The MOA is a legally-binding document, outlining the “who,” “what,” “when,” “where,” and “how” of mitigation and its terms must be carried out.  The consulting parties are invited to concur in the MOA.  Once the MOA is signed by all parties, the Section 106 process is complete and the project may move forward in accordance with the MOA.

8.  If we can’t come to an agreement to minimize, mitigate, or avoid the adverse effects, then you will make another request to the ACHP to step in.  They will either join in the consultation or issue comments.  Sometimes the Agency and the SHPO don’t agree. For exapmle, the SHPO may not think the impacts to historic resources are justified or the proposed mitigation is adequate, or the Agency may refuse to carry out certain types of mitigation. In a case like this, the Agency can invite the ACHPl to participate in an effort to resolve the differences. Very rarely, a consulting party may decide to terminate its involvement in the process. If that happens, Section 106 must still be satisfied.  If the SHPO terminates consultation, then the Agency continues consultation with the ACHP.  If the Agency terminates consultation, the the Section 106 process must start over or the project dies. A federal project cannot be completed without having satisfied Section 106.  For this reason, good consultation and negotiation resulting in agreement are critical to a successful outcome.

This process assumes that a federal agency is the party responsible for the project.  In the case of HUD-funded projects, HUD has delegated the responsibilities for complying with the Section 106 process to it’s funding recipients.  It would be a very good idea to add another step and notify your HUD contact of the adverse effect (or MSHDA or MEDC if you are receiving your HUD funding through them).  They may be able to provide you with some additional advice.

Frequently Asked Questions about Adverse Effects

Why is my project an “adverse effect?”

An adverse effect occurs because the project negatively impacts an historic resource.  Examples of adverse effects include demolition, abandonment, neglect, or change in use or appearance of the resource.

Why should I have to do this?

Section 106 is required under federal law for projects with federal involvement, i.e., funding, permitting, or licensing.  It is the SHPO and each federal agency’s responsibility to support the public’s interest in historic resources.  Projects undertaken without going through the Section 106 process or those that have poorly implemented the process (such as insufficient pbulic comment, ignoring potential consulting parties, etc.) have been subject to litigation, costly delays, and other penalties.

Why is the SHPO trying to stop my project?

The SHPO has no authority to “stop” projects. That authority rests soley with the federal agency responsible for the project.

Why is my project being singled out?

Your project is not being singled out. The Section 106 process seeks to accommodate historic preservation concerns with the needs of federal undertakings. A determination of adverse effect accounts for approximately 1% of the projects the SHPO reviews each year.

Why do I have to deal with the SHPO?

The federal regulations state that the SHPO is a mandatory consulting party in the Section 106 process.

What if I take the federal portion out of my overall project?

Federal case law has supported the notion that once a project receives federal assistance, the entire project becomes a federal undertaking subject to Section 106. For example, suppose you are funding a project with 90% state and local funds and only 10% federal dollars. The project is still a federal project. The project is also a federal project even if the federal dollars are passed through a non-profit organization or a state or local government agency. 

If you are wondering if your project is subject to Section 106, try this test: but for the federal portion of the project, could you still achieve the same goal?  Sometimes this becomes a very gray area, open to interpretation. If that is the case, ask your federal agency of the SHPO for assistance.

What if I just “remove” historic resources so they will not be present when I initiate my project?

Occasionally, someone demolishes an historic resource with state, local, or private dollars and then applies for federal assistance.  When the project is submitted to the SHPO, it is indicated that the project will occur on vacant land. This situation is known as “anticipatory demolition.” Unfortunately, the SHPO is often aware that an historic resource was present at the site or is alerted to the fact by a concerned citizen. When this happens, the SHPO inquires of the federal agency responsible for the project and determines whether or not the action qualified as anticipatory demoliton.  The federal agency is responsible for determining penalties for anticipatory demolition.

Anticipatory demolition is covered in a 1994 amendment to 16 USC Part 470h-2(k), which states:

(k) Assistance for adversely affected historic property

Each Federal agency shall ensure that the agency will not grant a loan, loan guarantee, permit, license, or other assistance to an applicant who, with intent to avoid the requirements of section 470f of this title, has intentionally significantly adversely affected a historic property to which the grant would relate, or having legal power to prevent it, 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.

 

What if I know there are plans to demolish an historic resource in the near future? It will be gone anyway, so why should it be a factor?

 

Impacts to historic resouces are considered on a project-specific basis. You may know that the owner of a resouce plans to demolish the property next month. However, when a project is submitted for Section 106 review, the SHPO considers the current status of the resource. Why? Because the plans to demolish the property may never materialize.  By the same token, when we evaluate a property for its historic significance (National Register eligibility), the SHPO does not consider that it may be restored in the future.

What if I disagree with the SHPO’s opinion regarding the eligibility of an historic resource?

 

The Keeper of the National Register of Historic Places ultimately settles disputes regarding the eligibility of a resource.  You must present your case and supporting documentation to the Keeper and allow sufficient time for a review.  Disputes regarding teh effects of a project on historic resources are handled in teh same way as a failure to resolve adverse effects.  Those outside the circile of consulting parties should present their case directly to the SHPO and the federal agency.

What if I disagree with the SHPO’s opinion regarding the effects of a project on an historic resource?

Disputes regarding the effects of a project on historic resources are handled in the same way as a failure to resolve adverse effects.  Individuals or groups who are not consulting parties should present tehir case directly to both the SHPO and the federal agency.

How do I become a consulting party?

Certain agencies, groups, and individuals are mandatory consulting parties, including the SHPO, relevant municipalities, state agencies carrying out federal programs, and Native American tribes.  To become a consulting party, your request should be made in writing directly to the federal agency responsible for the project. Be sure to provide information to support why you feel you should have this status.

What is the role of the Advisory Council on Historic Preservation?

The ACHP is appointed by the President and is responsible for ensuring the implementation of Section 106 and overseeing the nation’s historic preservation program.  The ACHP may choose to become involved in projects that are controversial or significant at the national level or when an entire federal program is being evaluated for impacts on historic resources. For more information, visit www.achp.gov

Who writes the Memorandum of Agreement (MOA)?

No specific consulting party is required to write an MOA. However, the SHPO tends to have the most experience writing MOAs.  Once a draft is written, it is reviewed by all the signatories and revised until finalized.

Who carries out the responsibilities of the MOA?

The MOA outlines the terms and conditions for mitigating a project. It is the responsibility of the federal agency assisting the project to ensure that all the terms and conditions outlined in the MOA are carried out, although a particular term or condition described in the MOA may be assigned to a consultant, the SHPO, the applicant for federal assistance, or another consulting party. The signatories of an MOA should understand that there may be particular costs incurred and time spent implementing the MOA.  Federal agencies generally consider mitigation an eligible project cost and it can be included in the overall project budget.

How long is this process?

The length of time it takes to resolve adverse effects and reach an agreement on an MOA depends on many factors: the size or complexity of the project, the level of public interest in or controvery surrounding the project, and the experience and attitudes of the consulting parties.  Some factors may hold up the process, including, but not limted to:

• No consideration of alternatives to avoid an adverse effect. The Section 106 process requires agencies to consider alternatives that might avoid or minimize impacts to historic resources. This must be done even if you have already bought the land, signed the contract, or let the project out for bid.  If you do not think that there are any alternatives, you must be prepared to substantiate your assertions with factual data.  The SHPO always encourages early consideration of alternatives and coordination with consulting parties.
• Public comment. The public plays an important role in the Section 106 process and must be given adequate time to provide meaningful comment on a project and possible alternatives.
• Negotiating mitigation. No MOA will be signed and the Section 106 process will not be complete until all parties are satisfied with the process outcome.  It can take time for all to agree on what is appropriate and feasible to mitigate the loss of an historic resource.

Do you have any sample MOAs that we could see?

While each MOA is negotiated on a case-by-case basis, here are a few sample MOAs for past projects.

• An MOA requesting recordation and an “interpretive item.”
• An MOA outlining proceedures in case human remains are discovered during the course of the project.
• An MOA requiring that the building to be demolished be marketed for redevelopment first.
• An MOA requiring the completion of a National Register of Historic Places nomination.

The MOAs for projects involving demolition generally require recordation of the property before demolition.  What exactly are you expecting for the recordation?

The SHPO recently updated their recordation requirements to include digital photographs. The new recordation guidelines are fairly standard and are included in an appendix of MOAs that require recordation.  We also have a sample of recordation that was done for a past project (note: the .pdf of the recordation sample has two blank pages. One was a plat map and the other was a newspaper article. When I have time, I’ll scan those and add a link to them)