**Coordinating the National Environmental Policy Act**

**With Other Federal Environmental Laws**

Prepared by:

The Harmonizing Workgroup

XXX, 2008

***[Disclaimer]{.underline}***

This Handbook provides guidance on ways to achieve efficiencies by
integrating NEPA with other federal environmental statutes. It does not
supersede existing CEQ or federal agency NEPA or other regulations, and
the characterizations of law and regulation it contains should not be
treated as definitive. Federal agencies should refer to these original
sources as part of sound environmental planning practice. The sole
purpose of this Handbook is to provide guidance for federal agencies to
consider in complying with NEPA; shall not be construed to create a
cause of action.

**Table of Contents**

**Introduction 4**

# Historic Properties 8

**[Introduction]{.underline}**

In 2002, the Council on Environmental Quality (CEQ) convened a NEPA Task
Force to examine current NEPA implementation practices and procedures
and to identify opportunities for improvement and modernization in six
specific areas. The resultant report, [Modernizing NEPA
Implementation]{.underline}, published in September 2003, discussed the
task force findings and recommendations in the six specified areas. In
addition, a number of issues were raised in public comment and during
interviews on the procedural aspects of the NEPA process. Specifically,
the task force found further opportunity for integration of
requirements, and recommended that CEQ:

> *In consultation with the Environmental Protection Agency, Advisory
> Council on Historic Preservation, Fish and Wildlife Service, the
> National Oceanic and Atmospheric Administration's National Marine
> Fisheries Service and other agencies, as appropriate, develop a
> handbook to effectively integrate the NEPA process with Endangered
> Species Act Section 7 consultation, National Historic Preservation Act
> Section 106 coordination, Clean Air Act conformity requirements, and
> Clean Water Act total maximum daily load and Section 404
> requirements.*

**Handbook Overview and Purpose**

Federal environmental and resource conservation statutes and executive
orders applicable to federal agency actions span a variety of
scientific, economic and social issues and often mandate conservation
and pollution prevention measures to protect the environment and human
health. A coordinated compliance with these statutes, implementing
regulations and executive orders can be complicated because of
overlapping substantive and procedural requirements. The National
Environmental Policy Act (NEPA) of 1969 \[42 U.S.C. § 4321 *et seq*.\]
can provide an excellent coordination vehicle because NEPA requires
environmental impact assessment for agency actions that implicate these
substantive requirements. This handbook is a tool for using NEPA as such
a coordination vehicle.

NEPA mandates in section 102 (A) \[42 U.S.C. § 4332(A)\] that:

> \[T\]o the fullest extent possible: (1) the policies, regulations, and
> public laws of the United States shall be interpreted and administered
> in accordance with the policies set forth in this chapter, and (2) all
> agencies of the Federal Government shall-

(A) utilize a systematic, interdisciplinary approach which will insure
    the integrated use of the natural and social sciences and the
    environmental design arts in planning and in decision making which
    may have an impact on man's environment;

The CEQ implementing regulations mandate the following in achieving this
statutory objective:

> To the fullest extent possible, agencies will prepare draft
> environmental impact
>
> statements concurrently with and integrated with environmental impact
>
> analyses and related surveys and studies required by the Fish and
> Wildlife
>
> Coordination Act (16 U.S.C. 661 et seq.), the National Historic
> Preservation
>
> Act of 1966 (16 U.S.C. 470 et seq.), the Endangered Species Act of
> 1973 (16
>
> U.S.C. 1531 et seq.), and other environmental review laws and
> executive
>
> orders. \[40 C.F.R. § 1502.25(a)\]

This policy also applies to environmental assessments.

NEPA establishes procedures to "insure that environmental information is
available to public officials and citizens before decisions are made and
before actions are taken." \[40 C.F.R. § 1500.1(b)\] The purpose of
these procedures is to foster informed decisions. Coordinating NEPA
procedures with those of other federal environmental statutes and
executive orders facilitates NEPA objectives by promoting efficiencies
in environmental planning and development of "high quality information"
on which to base agency decisions. \[40 C.F.R. § 1500.1(b)\]
Accordingly, CEQ in implementing regulations directs federal agencies
to:

Implement procedures to make the NEPA process more useful to decision

> makers and the public; to reduce paperwork and the accumulation of
>
> extraneous background data; and to emphasize real environmental issues
> and
>
> alternatives. \[40 C.F.R. § 1500.2(b)\]

To achieve this objective, federal agencies are further directed to:

> \[I\]ntegrate the NEPA process with other planning at the earliest
> possible time
>
> to insure that planning and decisions reflect environmental values, to
> avoid
>
> delays in the process, and to head off potential conflicts. \[40 CFR
> §1501.2\]

This process integration includes ensuring NEPA planning and review
processes

"run concurrently rather than consecutively" with other processes
required by law

or agency practice. \[40 C.F.R. § 1500.2 (c)\]

**The Scope of the Handbook**

The first four chapters address the following environmental resources,
one or more of which is likely to be an issue that needs to be addressed
in all NEPA evaluations. Moreover, these resources were the focus of the
Task Force's recommendation:

-   Air Quality -- particularly SIP conformity;

-   Endangered Species;

-   Historic Properties; and

-   Wetlands.

The subsequent chapters discuss a number of other environmental
resources that may be issues to be addressed in NEPA evaluations.
Specifically, the chapters address:

-   Agricultural Lands;

-   Coastal Zones;

-   Essential Fish Habitat;

-   Floodplains;

-   Marine Mammals;

-   Migratory birds;

-   Impaired Waters (and Total Maximum Daily Loads);

-   Sole Source Aquifers; and

-   Wild and Scenic Rivers.

In general, each chapter includes the following discussions:

1.  Overview: an overview of the compliance requirements of the
    respective laws as well as any implementing
    regulations/policies/guidance. Where appropriate, statute-specific
    provisions for combining compliance requirements with the NEPA
    process are discussed. In addition, discussion of compliance in the
    context of a larger project approval process is also addressed.

2.  Definitions: where appropriate, a comparison of NEPA and other
    statutory or regulatory definitions on a related environmental topic
    is provided.

3.  Commonalities/Potential areas of conflict: a discussion about the
    commonalities or potential areas of conflict among respective
    process requirements that inhibit or promote parallel processing
    with NEPA.

4.  Process recommendation: a recommended process to satisfy both the
    NEPA and the related statute's procedural requirements is provided.

A specific attempt was made to outline concurrent timing between NEPA
and the respective statutes, as recommended by the NEPA Task Force.

The handbook was designed to address the resource areas that most
federal agencies would address most frequently in their NEPA analyses.
Not every federal environmental law is addressed, nor have state
statutes that apply to federal agencies where a state has been delegated
authority to implement a federal program, or where there has otherwise
been a waiver of federal sovereign immunity, been addressed. The
variance in such state requirements makes addressing them here
impractical

The procedures outlined in the chapters should be considered suggested
best management practices that, if followed, will assist the lead
agencies in complying with the statutes that are addressed and provide
for a more effective and efficient use of the NEPA process.

# [Historic Properties]{.underline}

# 

# Program Summary

Under Section 106 of the National Historic Preservation Act[^1] (NHPA),
Federal agencies must take into account the effect of their undertakings
on historic properties and provide the Advisory Council on Historic
Preservation (ACHP) a reasonable opportunity to comment with regard to
such undertakings. The Section 106 implementing regulations, "Protection
of Historic Properties," 36 CFR Part 800, describe a Section 106 review
process, which "seeks to accommodate historic preservation concerns with
the needs of Federal undertakings through consultation."[^2] The process
provides for \[whether it's effective or not depends on how implemented
rather than the process per se\] participation of State and local
governments, Indian tribes, representatives from various businesses and
organizations, and private citizens in Federal project planning that may
affect historic properties. Through its administration of Section 106,
the ACHP helps parties reach agreement on measures to avoid, minimize,
and mitigate adverse effects on historic properties and to resolve
potential conflicts that may arise between project goals and
preservation objectives.

The Section 106 regulations encourage agencies to coordinate their
Section 106 process with their NEPA process. Through coordination,
information and analyses-sharing, as well as compliance can be completed
in a streamlined fashion that minimizes the duplication of effort. This
coordination also ensures historic properties receive adequate and
timely consideration at the beginning of and throughout the planning
process.

The purpose of this chapter is to provide experienced NEPA practitioners
some key concepts and strategies for harmonizing Section 106 and NEPA.
Since the ACHP has not yet published guidance to interpret 36 CFR
§800.8, Coordination With the National Environmental Policy Act, the
intent of this chapter is to identify opportunities for harmonizing the
Section 106 process with NEPA and to move forward with new and
innovative environmental coordination strategies. Acknowledging the
slight distinctions between the purposes of Section 106 and NEPA
provides a foundation from which a discussion of coordination can begin.
For instance, where NEPA calls for public disclosure and focuses on
alternatives, Section 106 requires a consultative process and focuses on
resolving adverse effects to historic properties. NEPA has a closed
timeframe in which the process operates, and Section 106 allows for
certain open-ended consultation periods. Further details on the
requirements of Section 106 and NEPA are available from the ACHP and the
CEQ, respectively. The goal here is to help navigate the reader through
these distinctions and to create a better understanding of the benefits
and challenges of coordinated compliance.

# Two approaches for harmonizing Section 106 and NEPA

As stated earlier, the ACHP's regulations, which implement Section 106,
encourage Federal agencies to coordinate Section 106 reviews with NEPA
reviews. One approach for coordination will be referred to as the
"parallel approach" for purposes of this chapter. A second, different
approach that may be used for complying with Section 106 and NEPA as
provided for in 36 CFR §800.8(c), will be referred to as the "integrated
approach." Regardless of which approach is used, the Federal agency
should always coordinate or "harmonize" its Section 106 and NEPA
processes.

***Parallel approach*.** The ACHP encourages all agencies to conduct
their Section 106 compliance on a parallel track with their NEPA
process, thus allowing for the coordinated timing of public
participation, review, and decision points. Consideration of historic
properties and Section 106 responsibilities should begin as early as
possible in the NEPA process, during scoping and preliminary planning.
Information should flow freely between the consulting parties identified
through the Section 106 review process to the agency and its planning
team and vice versa. Federal agencies may convene consultation meetings
separately from other environmental coordination meetings and may or can
develop independent documents to detail and support their findings and
determinations regarding historic properties. The documentation
developed and any outcomes reached during the Federal agencies'
compliance with the four-step (36 CFR §§800.3---800.6) Section 106
review process can be incorporated into their NEPA documents and
decisions, depending on project scheduling.

***Integrated approach**.* The Section 106 regulations also provide for
a specific process, detailed at 36 CFR §800.8(c), whereby the NEPA
process may be used to fulfill an agency's Section 106 responsibilities,
provided that certain standards and documentation requirements are met.
This approach encourages the full integration of Section 106
consultation and the coordination of environmental reviews. The benefit
to stakeholders and the public of this integration is data sharing, cost
and time savings, and an ability to present the big picture of a
proposed action during preliminary planning and design development. It
should be noted that although the ACHP regulations allow program
alternatives under Subpart C, 36 CFR §800.14, the NEPA coordination
provision at 36 CFR §800.8(c) is not intended to act as a program
alternative to the Section 106 process, but is intended to be applied on
a project by project basis as appropriate.

## **Choosing the right approach for Section 106-NEPA compliance**

The consideration of a number of factors will help identify the more
appropriate approach -- parallel or integrated -- for a specific
action/undertaking. The Federal agency official may wish to consider the
following in deciding how it should proceed to comply with Section 106
and NEPA as this discussion will help identify the challenges and
opportunities that are to the benefit, not only of the agency
decision-makers, but also to the public.

-   *What type of environmental document will be prepared under NEPA?*
    If the Federal agency determines that it is appropriate to prepare
    either an Environmental Impact Statement (EIS) or an Environmental
    Assessment (EA), then the integrated approach is available.[^3] It
    should be noted, however, that if the proposed action is
    categorically excluded from NEPA review, the Federal agency must
    still determine whether that action constitutes an "undertaking
    requiring review under \[S\]ection 106 pursuant to §800.3(a),"[^4]
    and, if so, follow the typical Section 106 process per 36 CFR §§
    800.3 through 800.6.

-   *What historic properties are present within the area of potential
    effect?* Depending on the type, location, and/or significance of the
    historic properties present in the area of potential effect for the
    proposed action, the Federal agency may be required to conduct more
    detailed surveys, inventories, and/or consultation. For example, if
    there is a National Historic Landmark present, the agency will be
    required to notify the Secretary of Interior and, if there may be an
    adverse effect to such a property, invite them to participate in the
    consultation. Arranging and providing time for this additional
    consultation component will need to be factored into the overall
    review period. If the historic properties present in the APE require
    this level of attention, then the parallel approach may be
    preferable.

-   *What is the range of alternatives to be considered in the draft
    environmental document?* The integrated approach requires that the
    draft environmental document "identify historic properties and the
    assessment of the effects of the undertaking on such properties in a
    manner consistent with the standards and criteria of §§800.4 through
    800.5."[^5] If several alternatives in distinct locations are to be
    evaluated, or a large geographic area is defined as the project
    area, it may not be cost efficient or timely to conduct a detailed
    identification and assessment of effects for all alternatives. A
    high potential for the presence of buried resources that will only
    be identified later in the project development process may preclude
    implementing the integrated process. In such instances, many Federal
    agencies would find it more expedient to apply the parallel approach
    during the evaluation of multiple alternatives while preparing the
    draft environmental document. The parallel approach allows for the
    phased identification and evaluation of historic properties where
    the alternatives being considered include large corridors or other
    large land areas, or where access to the property may be
    restricted[^6]. The integrated approach permits phasing as well,
    however, such phasing must address historic properties in a manner
    commensurate with the assessment of other environmental factors.

-   *Who are the consulting parties and what is the level of public
    interest?* The integrated approach requires the same process for
    identifying and involving additional consulting parties and the
    public as is suggested for the parallel approach. However, the
    overall consultation can be difficult to fully integrate with other
    environmental coordination when the proposed action or the
    environmental issues are complex, or when there are a large number
    of active consulting parties. In such cases, the parallel approach
    may be more appropriate.

-   *Can substantive treatments to avoid, minimize, or mitigate adverse
    effects on historic properties be presented in the environmental
    document?* The integrated approach requires that if, during the NEPA
    review, the Federal agency determines that the proposed action may
    cause adverse effects to historic properties, within the integrated
    approach, the agency must include proposed mitigation measures,
    developed through consultation with identified consulting parties
    that avoid, minimize, or mitigate those potential adverse effects in
    the environmental assessment or draft environmental impact
    statement. The agency's Section 106 responsibilities will not be
    satisfied unless a "binding commitment" is made by the agency
    through the implementation of those measures in the ROD, FONSI, MOA
    (or PA), or ACHP comment under §800.7.[^7] If the agency feels that
    it cannot provide such proposed Section 106 mitigation measures in
    the environmental assessment or draft environmental impact
    statement, then the parallel approach may be more appropriate.

## **Documenting the selected approach to Section 106-NEPA compliance**

If the Federal agency elects to use the parallel approach, then only the
notification as stipulated in 36 CFR §§800.3---800.6 is necessary.

If, however, the Federal agency selects to use the integrated approach
for an undertaking or class of undertakings, then the agency must
provide advance notification of its intent to the State/Tribal Historic
Preservation Office (SHPO/THPO) and the ACHP.[^8] In addition, the
Federal agency must ensure that the documentation standards, described
in §800.8(c)(1) are met and that the process, defined in §§800.8(c)(2)
through (5), is followed.

## **Applying the Parallel Approach**

Agencies are encouraged to begin Section 106 consultations as early as
possible in project planning. The four-step Section 106 review process
is defined in §§800.3 through 800.6.

### [Timing and documentation]{.underline}

It is recommended that the results of 1) the initiation of Section 106;
2) the identification and evaluation of historic properties; 3) the
assessment of effects; and, where possible, 4) the proposed method of
resolving adverse effects should be included in the draft environmental
document, if it is to be circulated to the public. The results should be
summarized, and care should be given to ensure the confidentiality of
location information for archeological sites in general and particularly
sites to which Indian tribes or Native Hawaiian organizations attribute
religious or cultural significance.[^9] The Section 106 finding for the
undertaking (e.g., an undertaking with no potential to cause effects to
affect historic properties; no historic properties affected; no adverse
effects; or adverse effects) should be clearly stated, if available, to
allow the public an opportunity to comment on any finding.

If available, the method of resolving adverse effects should be
incorporated into the discussion of the preferred alternative in the
final environmental document. If a MOA or PA has been prepared to
resolve adverse effects, then a draft or executed copy may be appended
to the final environmental document. If a draft copy is appended, ensure
that all parties involved in implementation have agreed in principle to
the stipulations in the MOA or PA.

Ideally, execution of the MOA or PA prior to issuance of the FONSI or
ROD will evidence for the broader public benefit the outcome of the
Section 106 consultation process.

### [Public involvement]{.underline}

If a public meeting or hearing is held, it is suggested that a specific
portion of the meeting should be dedicated to Section 106 review, and
included as an agenda item. The public can assist in the identification
of potential historic properties, the consideration of their
significance, and the assessment of effects on those properties. The
SHPO/THPO and other consulting parties are critical to the
identification of historic preservation issues of concern or importance
to the public. However, collaboration with these particular consulting
parties does not substitute for public involvement or public comments.

The parallel approach assumes that consultation will occur as proscribed
by 36 §§CFR 800.3-800.6. The ACHP's regulations define consultation as
"the process of seeking, discussing, and considering the views of other
participants, and, where feasible, seeking agreement with them regarding
matters arising in the Section 106 process."[^10] Whether the agency is
following the parallel approach or the integrated approach, its
responsibility for government-to-government consultation with Indian
tribes does not change.[^11]

Some actions/undertakings may include several public workshops, open
houses, or meetings during the NEPA process. A Section 106 review update
at any of these public venues can be considered to encourage public
comment on historic preservation issues.

If the proposed action is categorically excluded, it may not require
public involvement under NEPA. However, Section 106 requirements for the
proposed action, including those regarding consultation and public
involvement, would still apply.

## 

## **Applying the Integrated Approach**

### [Identify consulting parties (*NEPA Scoping and Preliminary Planning, Development of Proposed Action, Purpose and Need)*]{.underline}

As stated above, the agency must provide advance notification to the
State/Tribal Historic Preservation Office (SHPO/THPO) and the ACHP that
it intends to use this approach. The regulations then specify that
additional consulting parties should be identified pursuant to 36 CFR
§800.3(f) or through the NEPA scoping and preliminary planning process
with results consistent with §800.3(f).[^12] The lead Federal agency
should consider inviting the parties with consulting roles, including
the Cooperating agencies and other stakeholders, into the scoping and
preliminary planning process.

### [*Alternatives, Identification of Affected Environment, Analysis of Environmental* Identify historic properties and assess effects *(NEPA Identification of Proposed Consequences)*]{.underline}

As early as possible in the NEPA process, it is important to identify
and evaluate historic properties pursuant to the standards provided for
in the Section 106 process. This step should focus on identification of
the area of potential effect and historic properties that are eligible
or listed on the National Register of Historic Places. To that end, the
agency should outline the survey requirements for the project area
reflecting the action's Purpose and Need. This analysis should not be
done in a vacuum, but rather, done in consultation with the SHPO/THPO,
interested tribes, and other consulting parties. Circulation of the
draft NEPA documentation can allow the greater public to participate and
comment on this identification process. It should also be noted that the
identification and evaluation outcomes at the Scoping stage are fluid,
and may change as a result of new information as the process moves
forward. The goal of this analysis is to establish the starting
framework for future assessment and determinations.

### [Consultation *(NEPA Scoping and Preliminary Planning through the process leading to ROD/FONSI)*]{.underline}

As defined earlier, consultation is the process of seeking, discussing,
and considering the views of other participants. Depending on the
situation and the participants, consultation can be face-to-face,
through correspondence, via telephone calls, with the exchange of
e-mails. All parties can meet together at one time, or a Federal agency
may choose to meet with parties separately or in groups. It is important
to note again, however, that Federal agencies' responsibility to consult
with Indian tribes is based on their government-to-government
relationship.[^13]

The integrated approach does not require separate reviews of
documentation by the SHPO/THPO and other consulting parties outside the
NEPA process for determinations regarding the presence/absence of
historic properties or the potential for adverse effects. However,
though not required by 36 CFR Part 800, it is recommended that parties
consult prior to the circulation of the draft environmental document is
strongly recommended in order to ensure that the draft environmental
document meets the standards of §800.8(c)(1) and that the substantive
resolution of adverse effects presented in the document is adequate (see
timing and documentation, below).

### [Involve the public *(NEPA Scoping and Preliminary Planning, Review of Draft EIS/EA, Response to Comments, Final EIS/EA, ROD/FONSI)*]{.underline}

The public is involved in the integrated approach similar to its
involvement in the parallel approach (described above). This effort
would be consistent with the agency's NEPA procedures and may vary
depending upon the nature and scale of the undertaking.[^14]

### [Develop measures to avoid, minimize and mitigate adverse effects *(NEPA Development of Alternatives, Analysis of Environmental Consequences, Mitigation, Draft EIS/EA, Response to Comments, Final EIS/EA, ROD/FONSI)*]{.underline}

The Federal agency must consult with the SHPO/THPO and other consulting
parties to develop measures to avoid, minimize, or mitigate any adverse
effects to historic properties from the undertaking. These measures
should be described in detail in the NEPA document to facilitate reviews
by all consulting parties and the public. It is not unusual for comments
provided during this part of the process to form the basis for
developing the ROD, FONSI, MOA, or PA, or ACHP Comment that formalizes
the mitigation or treatment plan.

### [Timing and documentation]{.underline}

In the integrated approach, the official documentation of the Section
106 review process consists of the draft and final environmental
documents, the ROD/FONSI, and/or MOA or PA, or ACHP Comment, where
applicable. The environmental document must meet the standards of 36 CFR
§800.8(c)(1). Prior to or concurrent with public availability of the
draft environmental document, the Federal agency would provide the draft
to the SHPO/THPO and consulting parties for review and comment. If the
document is a draft EIS, it would also be provided to the ACHP. Prior to
the close of the public comment period for the draft environmental
document, the SHPO/THPO, consulting parties, and/or ACHP may notify the
Federal agency that they have objections to the documentation. There are
two bases for such objections: 1) the documentation does not meet the
standards of 36 CFR §800.8(c)(1); or 2) the substantive resolution of
the adverse effects on historic properties proposed by the Federal
agency is inadequate. If the agency receives an objection, the matter
must be referred to the ACHP.[^15]

The regulations detail the process to resolve such objections, which
includes an ACHP opinion. In order to avoid delays in the NEPA process,
a comprehensive summary of the consultative efforts should be developed
to minimize the likelihood of objections related to historic
preservation.

Any measures agreed upon to avoid, minimize, or mitigate adverse effects
must be incorporated as a binding commitment in the ROD, FONSI, MOA, or
PA drafted pursuant to §800.6(c).

It is very important to note that if the integrated approach is
followed, where an undertaking is modified or changed after the
FONSI/ROD is approved, or, where the binding commitments made in the
NEPA document to avoid, minimize, or mitigate adverse effects to
historic properties are not followed, the agency must notify the ACHP
and all other consulting parties that supplemental documentation will be
completed or that the agency will follow the Section 106 procedures set
forth in 36 CFR §§800.3 through 800.6.

# Key Concepts

Care should be taken when selecting either the parallel or integrated
approach to coordinate compliance with Section 106 and NEPA. For some
proposed actions, the typical Section 106 review process conducted in
parallel coordination with NEPA will be the most appropriate path. For
other proposed actions, an integrated approach pursuant to 36 CFR §800.8
may be more appropriate.

The following ten key concepts should be considered when a Federal
agency is determining how to best harmonize NEPA and Section 106:

1.  Decide early in the project planning process which approach is most
    compatible with the proposed action.

2.  Note that the issues explored under NEPA and Section 106 will be
    similar and may utilize the same information-gathering sources.

3.  Review existing Section 106 compliance and NEPA documents for the
    project area to determine whether previous reviews can be useful in
    completing the NEPA process for the proposed action.

4.  Remember to first notify the SHPO/THPO and ACHP of the agency's
    intent to use the integrated approach per §800.8(c). Providing
    documentation explaining the basis for the agency's decision with
    such notification would assist the SHPO/THPO and the ACHP in
    identifying how they can best assist the agency in meeting its
    compliance goals.

5.  Do not confuse solicitation of public comments with Section 106
    consultation.

> Consider whether the NEPA review process allows adequate time for
> meaningful consultation.

6.  Recognize the Federal agency's responsibility for
    government-to-government consultation with Indian tribes regardless
    of which approach is used. Consider how the NEPA review process can
    adequately address issues of confidentiality.

7.  Consider whether the analysis of alternatives under NEPA will
    benefit from the detailed consideration of historic properties and
    preservation concerns if Section 106 analysis is integrated into the
    planning process.

8.  Consider whether the Section 106 process should be a discrete
    process for purposes of compliance with other federal and state
    requirements or for timing of resource identification.

9.  When other non-federal entities are involved in the proposed action,
    consider whether the agency can adequately enforce compliance with
    the avoidance, minimization, or mitigation measures prescribed in
    the NEPA document for resolving adverse effects on historic
    properties.

10. Consider whether the NEPA review process can assist in or be used
    for addressing potential impacts to historic properties resulting
    from other related federal actions included in the proposed action.
    *Further information*

Terminology Distinctions

> [NEPA]{.underline} [Section 106]{.underline}

+----------------------------------+-----------------------------------+
|                                  | Notify SHPO/THPO and ACHP that    |
|                                  | agency will use NEPA process for  |
|                                  | 106 compliance.                   |
+----------------------------------+-----------------------------------+
| Identify project objectives and  | Establish "undertaking"           |
| scope                            |                                   |
|                                  | -   Identify appropriate          |
|                                  |     SHPO/THPO                     |
|                                  |                                   |
|                                  | -   Plan to involve the public    |
|                                  |                                   |
|                                  | -   Identify other consulting     |
|                                  |     parties                       |
+----------------------------------+-----------------------------------+
|                                  | [Finding]{.underline}:            |
|                                  |                                   |
|                                  | -   No undertaking/no potential   |
|                                  |     to cause effects,             |
|                                  |                                   |
|                                  | -   Undertaking is type that      |
|                                  |     might affect historic         |
|                                  |     properties, or                |
|                                  |                                   |
|                                  | -   Project is covered by an      |
|                                  |     existing Programmatic         |
|                                  |     Agreement (PA)                |
+----------------------------------+-----------------------------------+
|                                  |                                   |
+----------------------------------+-----------------------------------+
| Identify social, economic, and   | Through consultation:             |
| environmental constraints        |                                   |
|                                  | -   Determine scope of            |
|                                  |     identification efforts        |
|                                  |                                   |
|                                  | -   Identify historic properties  |
|                                  |                                   |
|                                  | -   Evaluate historic             |
|                                  |     significance                  |
|                                  |                                   |
|                                  | -   Resolve eligibility disputes  |
+----------------------------------+-----------------------------------+
|                                  | [Finding]{.underline}:            |
|                                  |                                   |
|                                  | -   No historic properties        |
|                                  |     affected or                   |
|                                  |                                   |
|                                  | -   Historic properties affected  |
|                                  |                                   |
|                                  | Time will be needed to resolve    |
|                                  | disputes/objections.              |
+----------------------------------+-----------------------------------+
|                                  |                                   |
+----------------------------------+-----------------------------------+
| Develop preliminary alternatives | Should be done early in the       |
|                                  | process, in consultation with     |
|                                  | SHPO/THPO and other consulting    |
|                                  | parties.                          |
+----------------------------------+-----------------------------------+
|                                  |                                   |
+----------------------------------+-----------------------------------+
| Analyze the impacts of the       | Through consultation, assess      |
| alternatives                     | adverse effects by applying       |
|                                  | Criteria of Adverse Effect.       |
+----------------------------------+-----------------------------------+
|                                  | [Finding]{.underline}:            |
|                                  |                                   |
|                                  | -   No adverse effects; or        |
|                                  |                                   |
|                                  | -   Adverse effects               |
|                                  |                                   |
|                                  | Time will be needed to resolve    |
|                                  | disputes/objections.              |
+----------------------------------+-----------------------------------+
|                                  |                                   |
+----------------------------------+-----------------------------------+
| Incorporate alternatives         | Through consultation, consider    |
| analysis in the NEPA document,   | comments and negotiate mitigation |
| including no-practicable         | measures.                         |
| alternative determination, and   |                                   |
| circulate document for comment   |                                   |
+----------------------------------+-----------------------------------+
|                                  |                                   |
+----------------------------------+-----------------------------------+
| Incorporate comments into the    | Resolve adverse effects through   |
| selection of a preferred         | additional consultation and       |
| alternative                      | pursue:                           |
|                                  |                                   |
|                                  | -   MOA,                          |
|                                  |                                   |
|                                  | -   PA, or                        |
|                                  |                                   |
|                                  | -   Other program alternative     |
|                                  |                                   |
|                                  | Time will be needed to resolve    |
|                                  | disputes/objections.              |
+----------------------------------+-----------------------------------+
|                                  | Should the parties decide that    |
|                                  | consultation is no longer         |
|                                  | productive, termination requires: |
|                                  |                                   |
|                                  | -   Notification,                 |
|                                  |                                   |
|                                  | -   Council comment, and          |
|                                  |                                   |
|                                  | -   Agency response to Council    |
|                                  |     comment                       |
+----------------------------------+-----------------------------------+
| Issue FONSI/ROD and continue     | File MOA, PA, or final decision   |
| with development                 | with SHPO/THPO, ACHP, and         |
|                                  | consulting parties. Include copy  |
|                                  | of it in FONSI/ROD.               |
+----------------------------------+-----------------------------------+
|                                  |                                   |
+----------------------------------+-----------------------------------+
| Complete design                  |                                   |
+----------------------------------+-----------------------------------+
|                                  |                                   |
+----------------------------------+-----------------------------------+
| Acquire necessary permits        |                                   |
+----------------------------------+-----------------------------------+
|                                  |                                   |
+----------------------------------+-----------------------------------+
| Receive final authorization to   | Approve the undertaking.          |
| proceed to construction          |                                   |
+----------------------------------+-----------------------------------+
|                                  | If project is later modified...   |
|                                  |                                   |
|                                  | -   Notify the Council and        |
|                                  |     consulting parties that 106   |
|                                  |     reevaluation will commence,   |
|                                  |     or                            |
|                                  |                                   |
|                                  | -   Follow 800.3 through 800.6    |
+----------------------------------+-----------------------------------+
|                                  | If post-review discoveries        |
|                                  | occur...                          |
|                                  |                                   |
|                                  | -   Follow stipulations in MOA or |
|                                  |     PA, or                        |
|                                  |                                   |
|                                  | -   Consult per 800.13(b)         |
+----------------------------------+-----------------------------------+
|                                  |                                   |
+----------------------------------+-----------------------------------+
| Commence project and implement   | Implement mitigation in MOA, PA   |
| appropriate mitigation measures  | or final decision.                |
+----------------------------------+-----------------------------------+

[^1]: 16 U.S.C. § 470 et seq.

[^2]: 36 CFR § 800.1(a)

[^3]: 36 CFR §800.8(c)

[^4]: 36 CFR §800.8(b)

[^5]: 36 CFR §800.8(c)(1)(ii)

[^6]: 6

[^7]: 36 CFR §§800.8(c)(4)(i)-(ii)

[^8]: 36 CFR §800.8(c)

[^9]: 16 U.S.C. 470w-3, 36 CFR §800.6(a)(5) and §800.11(c)

[^10]: 36 CFR §800.16(f)

[^11]: 36 CFR §800.2(c)(2)(ii)(B)-(C)

[^12]: 36 CFR §800.8(c)(1)(i)

[^13]: 36 CFR §800.2(c)(2)(ii)

[^14]: 36 CFR §800.8(c)(1)(iv)

[^15]: 36 CFR §800.8(c)(2)