The Consultation Sequence and Its Agreement Documents

Federal historic review is a sequence, and the order is not decorative. Each step produces a finding that the next step depends on, and each finding has a defined audience and a defined period for response. A sponsor who understands the sequence can predict the schedule. A sponsor who negotiates mitigation before the effect has been characterized usually pays for mitigation that was never required.

Initiation and identifying who takes part

Section 800.3 opens the process. The agency official establishes that an undertaking exists and that it is a type of activity with potential to cause effects, then identifies the appropriate State Historic Preservation Officer or, where the undertaking is on or affects tribal lands, the Tribal Historic Preservation Officer. The same step requires the agency to plan how the public will be involved and to identify other consulting parties.

Public involvement is a separate obligation rather than a subset of consultation. The agency must seek and consider the views of the public in a manner reflecting the nature and complexity of the undertaking, its likely effects, the likely public interest, and any confidentiality concerns. In practice this ranges from a notice in a project newsletter for a routine action to a series of meetings for a project that will change a downtown. Where the undertaking is also subject to environmental review, agencies commonly coordinate the two public processes rather than run them twice.

The consulting parties are not a courtesy list. They include the preservation officer, Indian tribes and Native Hawaiian organizations that attach religious and cultural significance to properties that may be affected, representatives of local governments with jurisdiction, the applicant for federal assistance or permits, and additional individuals and organizations the agency invites because of a demonstrated interest. Tribal consultation is owed regardless of whether the property lies on tribal land.

Identifying historic properties

Section 800.4 requires the agency to determine and document the area within which the undertaking may cause changes, review existing information, seek information from consulting parties and the public, and then take steps reasonable and good faith to carry out the identification. Properties found are evaluated against the National Register criteria in consultation with the preservation officer.

Two findings can come out of this step. If no historic properties are present, or none will be affected, the agency documents a finding of no historic properties affected, notifies consulting parties and the process ends unless someone objects within the response period. If historic properties are present and may be affected, the process moves to assessment. How the study boundary is drawn and how eligibility is decided without a nomination is covered in the area of potential effects and eligibility determinations.

Assessing the effect

Section 800.5 supplies the criterion. An adverse effect occurs when an undertaking may alter, directly or indirectly, any of the characteristics of a historic property that qualify it for the National Register in a manner that would diminish the integrity of location, design, setting, materials, workmanship, feeling or association. Effects that are cumulative, delayed in time or distant in place are counted.

Findings at this step are not simply announced. The agency notifies the consulting parties, provides the documentation supporting the finding, and makes it available for public inspection. A consulting party that disagrees may object, and where objection is made and not resolved, the Advisory Council may be asked to review the finding. That review does not change who decides, but it puts an independent statement of the disagreement into the record the agency must consider.

The finding is either no adverse effect or adverse effect. A no adverse effect finding is often conditioned on the project being carried out as described, and those conditions become binding commitments. The substance of the criteria and the treatments commonly used to avoid a finding are set out in what counts as an adverse effect and what mitigation can require.

Resolution and the agreement documents

Section 800.6 governs the last step. The agency notifies the Advisory Council on Historic Preservation of the adverse effect finding and consults with the preservation officer and other consulting parties to develop measures that avoid, minimize or mitigate the harm. The product is a memorandum of agreement signed by the agency official and the preservation officer, by the Council where it participated, and often by the applicant and other parties invited to sign.

Who signs matters as much as what the document says. Signatories can amend or terminate the agreement; invited signatories accept its terms but cannot terminate it; concurring parties endorse it without either power. Applicants are ordinarily invited signatories, because the stipulations bind them but the agency does not want the project sponsor able to unwind the agreement. Reading the signature block is therefore the fastest way to understand who controls the document after it is executed.

An executed agreement filed with the Council evidences that the agency has satisfied its obligations for the undertaking. The stipulations are enforceable commitments, and they typically survive into construction contracts and permit conditions. Where identification cannot be completed before approval, or where an agency runs a repeating program, a programmatic agreement under section 800.14 replaces the case-by-case document and sets out how identification and treatment will occur later. Both instruments assume a settled understanding of what qualifies the property, which is why the criteria described in the National Register criteria and integrity keep reappearing, and why the limits explained in what listing actually restricts matter to owners whose property enters this process without their consent.