Improving the Efficiency and Consistency of Section 106 Compliance for State DOTs: Strategies for Project-Level Programmatic Agreements (2021)

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23 After compiling the responses to the questionnaire, the project team separated the issues noted by respondents into five main areas to guide the discussion regarding development, execution, and implementation of project-level PAs. The areas are shown in Figure 13. Figure 13. Five main areas of a successful PA. Each of these five areas is analyzed using relevant statistics from the review of project-level PAs collected during the survey and outreach, a summary of challenges that arise related to historic properties and effects, and a bulleted list of items to consider to address these challenges. This organization is intended to help users of this document focus on specific areas, issues, and effective approaches to consider when developing a project-level PA. A spreadsheet containing information on the 85 project-level PAs collected during the survey is provided in Appendix B. A. Understanding the knowns and unknowns about historic properties and effects Undertakings that utilize a project-level PA are often large, complex, and multi-phased projects with multiple historic properties and consulting parties. As such, the project typically has a wide range of knowns and unknowns that the project-level PA can and should address. Provided below are observations related to the reviews of PAs, followed by discussion regarding challenges and potential actions to resolve them.

24 PA REVIEW OBSERVATIONS The majority of the PAs analyzed for this study included both architectural and archaeological properties, but some referenced only architectural properties, while others only focused on archaeological properties. Of the 85 project-level PAs (executed between 1998 and 2020) analyzed, 18 percent (15) do not include already identified historic properties, 28 percent (24) include already identified historic properties (listed in and/or eligible for the National Register), and 54 percent (46) include both identified and unknown resources (not including late discoveries). Fifty-five percent (47) included known adverse effects and 45 percent (38) did not include known adverse effects at the time of the execution of the PA. CHALLENGE SUMMARY Project-level PAs are designed to deal with unknown historic properties and potential effects, but this presents a challenge in how to address the unknowns before and after the PA is implemented. The reason for doing a PA is often because a project requires a phased approach, there are multiple alternatives for the undertaking, or the agency needs to create a tailored Section 106 process for identification, evaluation, assessment of effects, and resolution of effects to historic properties prior to approval of the environmental document. Capturing the unknowns in writing, in an agreement document that binds the signatories to certain commitments and processes, can be challenging for agencies and consulting parties. OVERCOMING THE CHALLENGES Discussing the knowns and unknowns with signatories and consulting parties and plans for how to resolve the issues raised is essential to developing the project-level PA. The project sponsor must have a strong grasp of the project design, staging, and other relevant factors to inform the approach to identifying and evaluating historic properties and assessing adverse effects. Other successful practices: • Build flexibility into the agreement to address issues that may come up that were not considered initially. • Think through all details and scenarios related to schedule, scope, and budget and address them in the PA as appropriate. • Discuss the types of activities the PA will cover. PAs can be used to exempt specific activities from Section 106 consultation. To do this, develop a list of possible minor projects or activities within the project-level PA that agencies agree will result in a finding of no historic properties affected that can be cleared under the agreement. Examples of minor projects can include pavement overlay, minor widening within right-of-way, replacement of ITS equipment, or other

25 routine activities. This is usually effective for Tier 1 PAs, which include lists of properties or activities that are exempt from further Section 106 review and can be used for Tier 2 project activities that do not need Section 106 consultation when those projects are funded. Using effective and clear language After a PA has been executed, the activities required to execute and track its successful implementation hinge on the effectiveness, accuracy, and clarity of its language. For these reasons, the use of clear, unambiguous language is paramount to the success of a project-level PA. Avoiding language that can leave the PA text open to interpretation will result in a more successful implementation of the PA. Provided below are observations of collected data in this category followed by discussion regarding the challenges and suggestions for developing clear language in project-level PAs. PA REVIEW OBSERVATIONS Each project-level PA is different and requires different levels of detail depending on the stipulations and historic properties in question. For that reason, assessing the effectiveness and clarity of language in a systematic way is difficult and requires familiarity with the project and the parties involved. The project team noted if a PA or its attachments addressed the primary questions of who is doing what, where, why, how, and when. The majority of reviewed PAs addressed these questions, but a handful were less clear on timelines for action items. The team also noted whether PAs included descriptions of roles and responsibilities and definitions of key terms. Out of 85 PAs analyzed, less than five included this information. CHALLENGE SUMMARY Unclear or vague language in stipulations creates confusion over who is responsible and the actions that are required to meet the terms of the agreement. If the parties have not communicated their understanding of the stipulations, major issues can arise during the implementation of a PA. Cultural resource practitioners, engineers, contractors, and consulting parties can have differing conceptions of the meanings of words such as “site,” “rehabilitation,” and “preservation.” Misunderstandings arise when these terms and others are not clearly defined in the PA and are not clearly communicated. Engineers use a technical vocabulary that is communicated through plans, specifications, calculations, and reports, while historic preservation professionals’ technical vocabulary is communicated through historic documents, photos, and visualizations. These different perspectives will create confusion if not discussed and articulated. Examples of unclear language in a PA include statements such as: • Contractors will be required to preserve significant features as much as practicable. • All future phases of preservation and rehabilitation efforts in the undertaking will be designed with the intent of avoiding adverse effects to the historic property.

26 This type of vague language could cause multiple unwanted actions, including alteration or demolition of contributing structures within a historic district, disagreement over actions that cause adverse effects to a historic property, and uncertainty as to which party is responsible for fulfilling a stipulation. If the signatories and/or consulting parties do not discuss how they perceive key terms, misunderstandings will result. Contractors and engineers may not be familiar with the term “adverse effects” and do not understand that it can mean actions that result in the demolition, destruction, and other changes or modifications to historic properties that render the properties no longer significant, which in turn could make them no longer eligible for listing in the National Register. Additionally, statements that do not explain what makes the historic properties significant, including specifics about the property’s character-defining features, will not provide enough background to understand the reasoning behind and need for historic treatments of properties. OVERCOMING THE CHALLENGES Project-level PAs must include unambiguous language to avoid confusion or weak commitments. The primary rule to follow with agreement documents, including project-level PAs, is to be clear about who is doing what, where, why, how, and when. Figure 10 provides an example of how to improve PA stipulation language and illustrates key details to consider when writing stipulations. The best way to avoid confusion is to have all parties collectively discuss the meaning of the PA stipulation to uncover any issues with interpreting it or how it will be completed. Other strategies to achieve a well-written PA include: • Develop a list of definitions for key terms and include as an attachment or appendix. Examples of terms that should be defined based on differences between engineering and historic preservation perspectives include: o Preservation  Engineering definition: Actions or strategies that prevent, delay or reduce deterioration, restore function, maintain good condition, and extend the life of a structure.  Historic preservation definition: The Secretary of the Interior’s (SOI) Standards for Preservation defines the term as “the act or process of applying measures to sustain the existing form, integrity and materials of a structure. Work, including preliminary measures to protect and stabilize the property, generally focuses upon the ongoing maintenance and repair of historic materials and features rather than extensive replacement and new construction.” o Rehabilitation  Engineering definition: Removal of original elements of a structure and replacement with new materials to restore structural integrity and correct major safety defects.  Historic preservation definition: The SOI Standards for Rehabilitation defines the term as “the process of returning a property to a state of utility, through repair or alteration,

27 which makes possible an efficient contemporary use while preserving those portions and features of the property which are significant to its historic, architectural, and cultural values.”3 The SOI Standards for Rehabilitation do not support the removal of historic materials or alteration of the features that make a property significant. • Develop an appendix to the PA that defines responsible parties, roles, contact information, and commitments. Examples of key roles and responsibilities to include: o FHWA or Lead Federal Agency)  Lead agency responsible for implementing Section 106  Ultimate approval authority  Authority to enforce the terms and conditions of the PA  Authority to comply with all federal governments pertaining to government-to- government consultation with federally recognized Tribes o State DOT  Project sponsor of undertaking  Responsible for implementing stipulations of PA  Oversight of reporting and implementing mitigation measures to resolve adverse effects to historic properties documented in PA o ACHP  Consulted with FHWA/Lead Federal Agency and DOT on undertaking and adverse effects to historic properties  Participate in dispute resolution  Advise PA signatories of compliance issues that may be raised by public o SHPO  Advise and assist FHWA/Lead Federal Agency and DOT in carrying out their responsibilities  Review of monitoring reports and mitigation deliverables o Tribes  Review of monitoring reports and mitigation deliverables o Other Federal agencies (typically landowning agencies)  Permitting authority and right-of-way approval actions • Spend time to make sure the PA language or stipulations does not commit a party to doing anything ambiguous or not clearly defined. If there are vague commitments, work to answer all possible questions that might occur in the implementation of the PA. 3 “The Secretary of the Interior's Standards for Rehabilitation & Illustrated Guidelines for Rehabilitating Historic Buildings- Standards,” National Park Service, https://www.nps.gov/tps/standards/rehabilitation/rehab/stand.htm.

28 • Spend time up front discussing with the signatories and consulting parties the specific actions that should occur to historic properties and provide specific direction on the work to be performed. • Reference the ACHP guidance on agreement documents for additional information that is necessary for the development of PAs (https://www.achp.gov/initiatives/guidance-agreement- documents) and checklists for PA content (https://www.achp.gov/node/8396) and reviewers guide (https://www.achp.gov/node/8397).

29 Improving PA Stipulation Language POORLY WRITTEN STIPULATION LANGUAGE The resource will be rehabilitated to avoid further deterioration. WHAT’S WRONG WITH IT? As written, the stipulation does not contain sufficient detail to understand what the stipulation requires, what resource(s) it references, how the stipulation will be carried out, by whom, by when, according to what standards, specific requirements associated with the stipulation (e.g., what components should a report include, what should photographic documentation illustrate, etc.), whether there are any intermediate agency reviews, and how to determine when the stipulation has been fulfilled. IMPROVED STIPULATION LANGUAGE The DOT or its agent will develop a rehabilitation plan for the National Register-eligible Anderson General Store to avoid further deterioration and facilitate continued commercial use of the property. The plan will provide a brief overview of the property’s architecture and history, recommendations for rehabilitation and ongoing maintenance of the property, and a timeframe for completion. Proposed rehabilitation activities will follow the SOI’s Standards for the Treatment of Historic Properties and be prepared by professional historians and architects that meet the SOI’s Qualification Standards in Architectural History and Historic Architecture, respectively. Up to two drafts of the rehabilitation plan will be submitted to the SHPO for review and comment, and the rehabilitation plan will be finalized prior to commencement of the transportation project. Once approved, the DOT or its agent will oversee rehabilitation of the building according to the requirements and timeframes established in the plan and all rehabilitation activities will be carried out and completed prior to expiration of the PA. C1. Working with Section 106 consulting parties Successful project-level PAs stem from mutual trust and collaboration among the various agencies and consulting parties involved in the project. Clear communication and a willingness to find solutions to meet the needs of consulting parties and the historic property or properties can go a long way in overcoming the various challenges associated with developing and implementing a project-level PA. Lead agencies, which often include the state DOT on behalf of FHWA, are responsible for the development, execution, and implementation of the PA, but their role requires a great deal of behind-the- scenes work before a PA can be drafted. Lead agencies often partner with other federal or state agencies as signatories that may have different priorities and approaches to the project. The consultation should

30 attempt to balance the goals of signatories and consulting parties with an interest in the project. Consultation should also engage and encourage a wide variety of potential consulting parties to participate in the project. Agencies that come to the table before developing solutions allow consulting parties to help shape the outcome of a project and demonstrate to the participants their concerns and ideas have been considered. PA REVIEW OBSERVATIONS The successful execution of a project-level PA is typically the result of months or years of consultation and negotiation among Section 106 parties. The signed agreement document is indicative of the mutually agreed-upon stipulations and terms of the PA by all parties. Our analysis of existing project-level PAs noted many signatories and consulting parties were involved in each PA, indicating a high level of engagement with consulting parties. Our interviews with respondents also identified some specific challenges and ways to overcome these challenges and are summarized below. CHALLENGE SUMMARY Working with consulting parties is an important part of the Section 106 process. Consulting parties represent a wide variety of groups with specialized knowledge who can be instrumental in identifying historic properties, potential effects, and mitigation. At the same time, these groups often consist of representatives from local governments, Tribes, and non-profits that may lack the resources and staff to participate in Section 106 consultation. They also may be asked to participate in many projects sponsored by different agencies. Agencies may host multiple meetings for input but these may not be well attended, or comments may be requested too late in the process. The public is also less familiar with the Section 106 process and may be more concerned about issues unrelated to historic properties. Oftentimes, controversial issues unrelated to Section 106 will come up during the development and execution of a PA. Mistrust usually occurs because parties are unfamiliar with PAs and do not know that, when used effectively, they can ensure full consideration of historic properties once an environmental decision document has been signed. Environmental schedules are increasingly being shortened or compressed to complete the review required under NEPA. As a result, there is more pressure to complete the Section 106 process before project issues can be adequately discussed among consulting parties. If consulting parties feel they are being rushed, they may be less likely to agree to the terms of a PA and have doubts about the ability of the agency to implement its commitments. Most consulting parties prefer that communication with the lead agency begins before a draft PA is developed. If they are asked to review a draft at an initial meeting, they may not want to participate if they think their concerns will not be addressed. Some DOTs have found that communicating with consulting parties before the agreement is drafted helps smooth the process of review because these parties feel the agency is listening to them.

31 OVERCOMING THE CHALLENGES Many of the effective approaches for working with Section 106 consulting parties apply to all phases of Section 106 consultation and involve keeping an open mind, establishing a transparent communication plan and schedule, defining roles and responsibilities for all parties involved, and being flexible to respond to project issues that will change during the course of the consultation. Additional approaches that DOTs might consider include: • Establish open lines of communication and mechanisms for sharing information with consulting parties throughout the process. Prepare a consultation schedule, communication plan, and consider a project website or another platform where Section 106 consulting parties can find pertinent documents in one location. • Establish meeting protocols and hold regularly scheduled meetings to keep parties communicating regularly. • Clarify roles and responsibilities for each party involved in developing the PA. • Designate one person, familiar with Section 106, to lead each meeting and keep the process moving forward. An independent party, such as a consultant, can host meetings, provide drafts and timelines to consulting parties, and serve as a mediator to keep everyone on track and ease tensions. • Anticipate multiple meetings and site visits so consulting parties feel involved and understand the potential historic properties, effects, project constraints, and other issues. • Anticipate that additional meetings will be necessary when project issues arise. • Include adequate review periods for consulting parties to provide comments. • Listen with an open mind and show parties their concerns have been heard. Use comment matrices for transparency and to make sure parties are involved in reviews from one draft to the next. If a comment needs to be discussed, communicate through meetings to understand the reasoning behind a comment. • Try to have all consulting parties together in one room or virtual meeting to discuss each draft and agency comments. • Keep the broader goal in mind, which is the successful implementation of the project and consideration for historic properties. • Educate consulting parties about the Section 106 process and PAs to preempt the mistrust that can arise among well-meaning consulting parties or agency staff unfamiliar with the regulations and the process.

32 • Break PA development and review into manageable sections (whereas clauses, administrative provisions, mitigation stipulations, appendices) instead of focusing on the entire document at once. • Be mindful that some consulting parties may be concerned with non-historic issues that need to be resolved outside of Section 106 consultation. While non-Section 106 issues will arise, they should not be included in the PA, which is reserved for the consideration of historic properties. C2. Tribal, THPO, and Native Hawaiian Organization consultation Working with Tribes, THPOs, and Native Hawaiian Organizations is a key component of Section 106 consultation. As such, the project team reached out to a select number of DOT staff that serve as liaisons to these groups to better understand the challenges and successful practices to consider when developing Section 106 agreements. PA REVIEW OBSERVATIONS Based on the project team’s review of PAs and interviews with DOT respondents, indigenous groups are often requested to participate in PAs as part of the Section 106 process. During the review of the PAs collected for this study, the project team noted if Tribes or THPOs were signatories or invited signatories. Nine percent (eight) of the PAs reviewed included Tribes as signatories or invited signatories. Of the 77 PAs that did not include Tribes as signatories or invited signatories, 83 percent (64) included Tribes as invited consulting or concurring parties and 17 percent (13) did not include consultation with Tribes. CHALLENGE SUMMARY Tribes and THPOs usually sign agreements with DOTs and other agencies when they own land affected by an undertaking, but in states where indigenous groups do not own land, they may want to consult with the agency if they have an interest in a project area. Most states invite Tribes to be signatories and/or consulting parties on PAs and include the Tribes in their public outreach, but the Tribes do not always sign the agreements. Participation in agreements depends on the Tribe and the project. The Tribe may have concerns about sharing information on the location of sensitive cultural properties with an agency. Potential risks related to requests for information or participation can also be a concern for a Tribe. Tribes may not be aware that they are able to negotiate terms in the agreements, ask questions, and request additions and deletions to the document. OVERCOMING THE CHALLENGES Many of the approaches for effectively working with Section 106 consulting parties also apply to working with Tribes, THPOs, and Native Hawaiian Organizations. Additional approaches that DOTs might consider include:

33 • Develop and foster a positive working relationship between the DOT and Tribe to set up a process to communicate and discuss tribal issues and concerns before requesting tribal consultation on individual projects. • Restrict information that is found during a survey to permitted personnel and keep information related to historic properties of interest to the Tribes confidential. Include language in the PA related to confidentiality and do not include information about sensitive resources within the PA. • Provide cultural resources sensitivity area maps to the Tribes for review prior to construction activity. • Hold pre-construction meetings and cultural resource awareness trainings to explain the project and procedures to follow if historic properties or human remains are discovered. All personnel working on the project should be trained to understand the terms of the PA and any activities that could result in inadvertent discovery of historic properties or human remains. • Develop archaeological monitoring plans to be reviewed by the Tribe, including allowing tribal monitors to be present on a project site to inspect evidence of archaeological remains during ground-disturbing activities to protect previously unidentified historic properties, artifacts, and human remains. • Consult with Tribes on preferences for disposition or restrictions to materials recovered during data recovery. Fulfilling agency commitments, including mitigation and contractual arrangements Once a project-level PA is signed, the real work begins: fulfilling the terms of the PA under Section 106. The implementation of a project-level PA is typically a multi-year effort that requires planning, scheduling, coordinating, and tracking to ensure the terms of the PA are carried out in a timely manner prior to its expiration. As priorities shift, staffing changes, or other variables evolve over time, carrying out agency commitments—including mitigation stipulations—and fulfilling the contractual stipulations can pose challenges that must be overcome to meet the legal obligations of the PA. Agencies are responsible for fulfilling the terms of PAs that are often carried out by contractors and consultants who do not sign PAs. As a result, agencies need to carefully consider and limit risks related to the oversight of parties who implement the terms of a PA. Agencies have an easier time fulfilling the commitments of the PA with careful consideration of mitigation stipulations and contractual obligations during the drafting of the PA. PA REVIEW OBSERVATIONS Generally, if agencies knew of adverse effects to historic properties, the PA included mitigation stipulations, and if agencies did not yet know of adverse effects, the PA did not include mitigation

34 stipulations. Of the 38 PAs that did not include known adverse effects, 42 percent (16) included mitigation stipulations that were to be implemented if adverse effects were later identified. The project team noted whether a treatment plan was attached as an appendix or separate document, which can provide flexibility to change the terms of the mitigation without having to amend the PA. Of the 85 PAs analyzed, seven percent (six) included a treatment plan; three were for the treatment of archaeological resources, two for the treatment of architectural resources, and one for the treatment of both archaeological and architectural resources. Project-level PAs include a variety of contracting arrangements for project delivery, as noted by respondents in our survey who have used PAs for traditional D/B/B methods as well as the more innovative D/B, P3, and CM/GC methods. The majority of the PAs the team reviewed were D/B and D/B/B. For more details, refer to question #15 in Section 2.C. CHALLENGE SUMMARY Unfulfilled mitigation stipulations Most respondents who participated in the survey noted unfulfilled mitigation stipulations as their primary issue with PAs. There are multiple causes for unfulfilled stipulations. If commitments are not clearly defined in the PA, it is difficult to complete the terms of the agreement. When project funding is delayed, or there is no obligated funding source to complete mitigation, it is problematic to keep a PA active and the agreement becomes less effective. Long project duration can result in the need to change mitigation commitments that are no longer the accepted or preferred method of mitigation. PAs that do not have flexibility to negotiate stipulations after execution can cause problems for agencies when mitigation commitments need to change due to project issues or adapt to emerging technologies and new methodologies. Lastly, agencies may struggle to identify meaningful mitigation stipulations as part of the Section 106 consultation, which can hamper their efforts to fulfill mitigation required under the terms of the PA. Staff turnover and responsibilities Sometimes unfulfilled commitments result from turnover at agencies and within consulting parties, where new staff are unaware of the PA commitments that may now be their responsibility. Staff responsibilities and budgets may be stretched and it can be difficult to find the personnel or funding to complete the mitigation that has been agreed upon in the PA. Agencies have experienced difficulties when staff not involved in the original negotiations interpret the stipulations differently than the staff involved in the original negotiations. Asking new staff with consulting parties to agree to the stipulations in a PA may require reopening consultation and they may not be willing or able to participate. Reviewing stipulations with contractors and engineers as contractual obligations Respondents noted several challenges with stipulations completed by contractors. If the stipulations are not reviewed and vetted first by engineers and other technical staff responsible for fulfilling the contractual obligations, there is a substantial risk of not being able to fulfill the mitigation according to the terms of the

35 agreement. Oversight of contractors and enforcement of the terms of the PA are important considerations for DOTs. As one DOT respondent noted when referencing agency commitments, “We need to be sure we aren’t making promises that we can’t keep.” If the agreement does not clearly state what the contractor can, and cannot, change in the design or construction of a project, it will create confusion and unfulfilled stipulations. While D/B and CM/GC project delivery methods are designed to give contractors flexibility to develop innovative methods, as the party responsible for the project construction, the contractors might want to make changes that conflict with the Section 106 consultation and terms of the PA. OVERCOMING THE CHALLENGES Developing meaningful mitigation stipulations Project-level PAs can result in meaningful, creative mitigation products and activities due to the complexity of the projects and the extensive consultation that takes place to develop PAs. While preparing Historic American Building Survey or Historic American Engineering Record reports for demolished properties is considered standard practice to mitigate adverse effects, these documents have less public benefit. Agencies often develop creative mitigation to help consulting parties with their goals, and to demonstrate their interest in providing products with public benefit and value. Rather than having preconceived ideas, agencies can start with a broad conversation on the goals of each consulting party to define parameters for mitigation and come up with new ideas as a result of varied perspectives and views. Conceptualizing the larger goals of mitigation with consulting parties can be helpful to get the conversation started. Agencies can consider potential projects in terms of education, preservation, community betterment, or other goals important to consulting parties. Respondents provided examples of successful mitigation, which are shown in Figure 14. Figure 14. Examples of successful mitigation.

36 Additional effective approaches for developing mitigation stipulations include: • Ask consulting parties about their vision of meaningful mitigation. • Discuss mitigation on a case-by-case basis that is commensurate with the magnitude of the effect on historic properties. • Prepare a “menu” of defined mitigation options to provide to consulting parties during the drafting of the PA but keep an open mind about ideas that may come up during consultation. • Have consulting parties vote on the mitigation options and provide the results to the group. • Attach a treatment plan for historic properties as an appendix to an agreement, which can allow an agency to change the content of the mitigation specified in the plan without having to amend the PA. • Consider that technology may change and PAs should recommend new methods when warranted. Addressing staff turnover and responsibilities Agencies are responsible for keeping executed PAs as priorities in the work plans of all existing and new staff. Education of the terms of the PA is critical for new staff, in addition to providing an overview of the Section 106 process and the ways in which PAs allow agencies to fulfill their responsibilities. Additional approaches for training new staff to uphold mitigation stipulations include: • Develop electronic tracking systems with regular reporting requirements and train new staff to use these systems. • Assign staff with conducting regular outreach and communication with consulting parties to update contact information and discuss consulting party priorities, plans, and responsibilities. • Create a shared team calendar to stay on track with reporting and other PA commitments. Developing language consistent with contracting arrangements Because project-level PAs are designed to address unresolved Section 106 issues, including unknown historic properties and effects, the content of the agreements does not differ substantially depending upon the contracting arrangement that is used. The agreements should address the following items: • Guidelines and standards that will influence the design of an undertaking, including the intent to follow Context Sensitive Solutions or other design guidelines from NPS, SHPO, or other agencies that may be important to a specific project.

37 • Design review protocols for reviewing, considering, and developing mitigation for remaining design elements once additional information on the effects to historic properties is known. Effective approaches for developing language consistent with project contract documents includes: • Cultural resource staff should develop the draft PA language with contract management staff and engineers and confirm that the same language is being used in the contract documents, specifications, and plans. • For D/B, P3, and CM/GC contracts, discuss how to integrate the ideas of construction managers and builders into the Section 106 agreement because contractors help develop final design under these delivery methods. • When design details are not known at the time the PA is signed, include several levels of design review for the signatories and consulting parties to review and comment on the treatment of historic properties. Work with contractors and engineers to define milestones at which design review can be achieved. This is typically defined as conceptual, 30-percent, 60-percent, and 90- percent stages but may differ depending on the project. This provides a level of comfort for the parties to correct issues if needed before construction starts. • During the development of the PA, hold project design meetings with all parties, including SHPO, DOT environmental managers, engineers, and contractors responsible for working on the project commitments. The purpose of these meetings is to discuss requirements to fulfill the PA stipulations and design plan review and construction plans to the satisfaction of the lead agency and regulatory agencies. • Discuss items that must be communicated to the contractor selected to build the project. Examples of items to consider include: o Applicable Federal, State, and local laws, regulations and guidelines that address historic properties in the project area and mandatory training for all project personnel working on the project. o Environmental sections of Requests for Proposals for soliciting contractors include historic property commitments. o Design commitments made to avoid, minimize, or mitigate effects to historic properties. o Process to notify consulting parties of changes in design. o Plan review process and information on the agencies participating in review at each stage of the project.

38 o Plans and procedures for dealing with design changes affecting identified historic properties that must be followed by the contractor. o Time designations and length of review periods to review changes in design. o Monitoring of the contractor during construction to ensure plans and procedures are being followed. o Maps identifying the locations of historic properties addressed in the PA and historic properties that should be avoided for design changes. • Discuss the intention and purpose of the stipulations and the protection, avoidance, or mitigation for historic properties with both engineers and cultural resource staff and have staff review and agree upon the language used in the PA. Administrative stipulations and appendices The agreed-upon terms under which the project-level PA is implemented are an important consideration when developing this type of agreement. Administrative stipulations are the “nuts and bolts” for how the overall agreement is implemented and typically include items such as professional qualifications, duration of the agreement, and reporting or tracking processes. Administrative stipulations also consist of agreed- upon contingency plans for dealing with certain situations, including disputes among signatories or a member of the public, amendments, or unanticipated discoveries. The challenge posed by administrative stipulations most often hinges on including sufficient detail, addressing the what-ifs, and including enough flexibility to successfully implement the PA without having to restart consultation once the PA has been executed. Appendices and attachments are important elements of PAs that provide supporting documentation and plans that should be considered during the implementation of the PA. PA REVIEW OBSERVATIONS Dispute resolution: Some PAs, even recent examples, do not have dispute resolution clauses that establish a process to follow if agencies or the public disagree about elements of the project. Of the 85 PAs analyzed, six percent (five) did not include a dispute resolution clause. In these cases, all were executed between 2014 and 2020. Duration/sunset clause: Of the 85 PAs analyzed, 95 percent (81) included a duration/sunset clause and five percent (four) did not. Three out of the four PAs without a duration/sunset clause were executed before 2008. Of the 81 PAs with sunset/duration clauses, ten years and five years in length were the most used with 57 percent (46) ten years in length and 18 percent (15) five years in length. Ten percent (eight) were longer than ten years, ten percent (eight) were six, seven, or eight years in length, and five percent (four) were less than five years in length (see Figure 15).

39 Figure 15. The duration of the majority of PAs analyzed was 10 years. Reporting/tracking: Of the 85 PAs analyzed, 46 percent (39) do not include reporting requirements and 54 percent (46) do include reporting requirements. Of the 46 PAs that include reporting requirements, 70 percent (32) require reporting once a year, 15 percent (seven) quarterly, seven percent (three) twice a year, four percent (two) once every two years, two percent (one) monthly, and two percent (one) once every three years. Secretary of the Interior’s Professional Qualifications Standards: Of the 85 PAs analyzed, 93 percent (79) included SOI Professional Qualification Standards requirements for architectural historians and archaeologists involved in the undertaking. Amendments: Of the 85 PAs analyzed, eight percent (seven) included amendments to the original PA. The reasons for amending included the addition of concurring parties or project sponsor language, updated APE and project status, and the addition of the SOI Professional Qualification Standards. Amendments also included updates to stipulations consisting of clearer timelines and extending the duration of the PA, addition of a dispute resolution provision, addition of monitoring and reporting, updated resolution of adverse effects to historic properties, and amended stipulations addressing specific design aspects of the project. CHALLENGE SUMMARY Administrative stipulations are an essential part of any agreement. Agreements that lack a dispute resolution process have no flexibility to make changes to the terms of the agreement based on project issues that arise. Finding the right balance of duration based on project conditions and issues along with robust reporting and monitoring is key so progress is made on an agreement and stipulations are not being done at the last minute. Establishing a timeframe for the duration of the PA is not always included but should be an essential part of a PA. 0 10 20 30 40 50 Less than 5 years More than 10 years 6, 7, or 8 years 5 years 10 years

40 Projects that do not have obligated construction funding or are slated to take many years are particularly challenging to complete within an established timeframe. Similarly, when funding for construction projects is delayed, implementing the stipulations in PAs can be delayed. These delays are a common challenge for agencies. If timelines included in a PA are too short and stipulations cannot be met before the PA expires, the PA needs to be amended to extend the agreement timeframe to remain active. If a PA expires before mitigation is implemented, an agency will have to develop a new PA instead of an amendment. Tracking and reporting present other challenges. These stipulations are designed to keep a project PA on track, but agencies can still struggle to meet their reporting responsibilities. Large, complex projects require tracking over a longer period. Agencies that lack a reporting or tracking system may fall behind in their commitments, which can damage partnerships with consulting parties. The SOI Professional Qualification Standards and historic property treatment standards have already established requirements and descriptions of what constitutes a qualified professional to carry out the work required under Section 106, as well as the acceptable activities that guide any needed alterations, changes, or modifications to historic properties. When a PA does not refer or adhere to the standards, unqualified personnel may carry out the work and not follow established standards. OVERCOMING THE CHALLENGES Dispute resolution clause: The Section 106 consultation process is designed to help agencies resolve potential issues before they become larger disputes. Effective project-level PAs must include a dispute resolution clause to lay out a process the parties agree to follow if disputes arise over how the agreement is being implemented. A dispute resolution clause is another measure of providing flexibility in the agreement because project issues and circumstances do change. While not everything can be anticipated, a dispute resolution process provides a way for agencies to address concerns of the signatories, consulting parties, or the public to resolve potential issues related to the undertaking. Additional successful practices include: • Add the terms of the dispute, including whether any signatory or consulting party can raise a dispute and a process to follow if a member of the public raises a dispute. • Provide time periods to resolve disputes. • Include terms to notify all of the parties to the agreement about the dispute. • Require documentation to be sent to signatories and consulting parties that explains the dispute and the resolution. Duration/sunset: Finding the right balance of time for the duration of the PA can be challenging. While completing stipulations of a project-level PA in five years is not always feasible, a period of 20 to 30 years

41 may be an excessive period of time to fulfill the terms of the PA and can lead to inefficiencies. Agencies should consider how long the undertaking may take to be implemented and develop a duration period based on the project timeline. Duration is tied to construction sequencing and engineers and construction managers should be consulted when considering the appropriate PA duration. Consider making the PA duration period longer than the project duration to account for potential delays in the schedule. Additionally, include a process to extend the duration period with agreement of the PA signatories if needed. Reporting and tracking: When developing reporting stipulations, determine what should be reported on or monitored during the life of a project, the level of detail required and who will prepare and receive the reports. Periodic deadlines and frequency of reporting and systems used to fulfill tracking stipulations should also be considered and included where appropriate. If applicable, agencies should reference reporting requirements in program-level PAs that may be appropriate for project-level PAs. Figure 11 provides an example of how to improve PA stipulation language for reporting requirements and illustrates key details to consider when writing this type of stipulation.

42 Improving Reporting/Tracking Stipulation Language POORLY WRITTEN STIPULATION LANGUAGE Progress reports will be submitted regularly. WHAT’S WRONG WITH IT? As written, the stipulation does not contain sufficient detail to understand who is responsible for preparing the reports, who will receive the progress reports, the level of detail that is required in the reports, or the frequency of reporting. IMPROVED STIPULATION LANGUAGE The DOT or its agent will prepare annual progress reports and submit to PA signatories by December 31 of each year. The reports should include a summary of progress on the construction of the project and progress made regarding each stipulation during the calendar year and expected progress to be made in the upcoming year. The progress report should also document any staffing/point of contact changes that signatories should be aware of, any concerns regarding the stipulation completion schedule and/or sunset date, identified limitations of the PA, and suggestions on changes to the PA to be reviewed by PA signatories. Report reviewers will confirm receipt of the report and provide comments within 30 days of receiving the annual PA report. Secretary of the Interior Standards: The SOI Standards are not regulations but are widely accepted as guidelines established by the NPS for technical advice and assistance on archaeological and historic preservation activities and methods. For more details, see: https://www.nps.gov/history/local- law/arch_stnds_0.htm. • The PA should stipulate which project activities must be carried out by professionals who meet the SOI’s Standards for history, archaeology, architectural history, architecture, and historic architecture. • If project activities will alter the historic properties in some way, either through additions, preservation, rehabilitation, or removal/replacement of historic materials, the PA should reference the appropriate SOI Standards for the Treatment of Historic Properties. Amendments: Amendments allow a PA to be revised and remain active to fulfill the stipulations. Amendments must be agreed upon before the expiration of the PA and should address all oversights or other issues that were not included when the agreement was initially developed.

43 Common reasons for amendments: • Addition of new consulting parties • Vague project stipulations that required additional consultation to define and develop • The original PA did not include monitoring and reporting stipulations • The original PA did not include professional qualification standards • Updates to the APE • Project modifications or extended design and construction schedule • Expiration of the original PA, updates to of the duration clause Appendices/Attachments: Appendices and attachments to PAs provide additional details on mitigation stipulations and can help reduce the number of amendments required to the PA. When treatment plans are included as an appendix or attachment instead of a stipulation in the PA, the elements of the plans can be modified based on project changes without requiring an amendment to the PA. Common appendices and attachments include: • APE maps • Design coordination plans • Archaeological identification, testing, evaluation, and monitoring plans (unless restricted due to sensitive information on historic properties) • Contact information for agency and tribal officials involved with human remains consultation • Human remains protocol • Curation of artifacts recovered plan • Data discovery/treatment plans • Mitigation measures • Technical reports • Summary of public and agency comments on PA • Roles and responsibilities of Section 106 PA signatories • Acronyms and abbreviations