Nationwide Programmatic Agreement : Introduction

Nationwide Programmatic Agreement for Review of Effects on Historic Properties

On March 7, 2005, the Nationwide Programmatic Agreement ("Nationwide Agreement") to improve and streamline the Section 106 National Historic Preservation Act ("NHPA") review process for tower constructions and other Commission undertakings entered into by Federal Communications Commission ("Commission"), the Advisory Council on Historic Preservation ("Council") and the National Conference of State Historic Preservation Officers ("Conference") will take effect. This introduction explains briefly how the NHPA review process currently takes place, identifies how the Nationwide Agreement improves that process and discusses the other benefits the Nationwide Agreement affords Commission licensees and other tower constructors, the historic preservation community, federally recognized Indian Tribes and Commission staff.

This module is intended to serve as a tool to facilitate the Section 106 Process. In the event of a conflict between the advice given in this training module and the rules and policies adopted in the NPA, the text of the NPA governs. General or specific inquiries about the Nationwide Agreement can be submitted to the Commission at: http://esupport.fcc.gov/contactfcc/npa/submitquery.jsp. "The Public Notice - No Adverse Effect" lists procedures for submitting to the Commission electronically, or in hard copy, at http://esupport.fcc.gov/contactfcc/section106/submitmsg.jsp determinations of no adverse effect to historic properties.

The Current Section 106 NHPA Review Process

Section 106 of the NHPA requires that a federal agency, prior to the issuance of a license or permit, take into account the effect of that undertaking on historic properties, including properties to which federally recognized Indian tribes and Native Hawaiian Organizations ("NHOs") attach religious or cultural significance (16 U.S.C. § 470f). The federal agency must them afford the Council an opportunity to comment on that action. Id. The Commission's rules implementing the NHPA require tower constructors to initiate the Section 106 review process. The tower constructor contacts the State Historic Preservation Officer ("SHPO"), for each tower project, seeking a recommendation regarding whether the project will affect "districts, sites, buildings, structures or objects, significant in American history, architecture, archeology, engineering or culture, that are listed, or are eligible for listing, in the National Register of Historic Places" (47 C.F.R. 1.1307(a)(4)).

The SHPO, after reviewing the submission from the tower constructor recommends whether or not an impact will occur. If the SHPO advises the tower constructor that the project would "adversely" affect historic properties within the Area of Potential Effects ("APE"), then the parties attempt to resolve the impact between themselves. Should negotiations prove fruitless, the tower constructor may abandon the project, or seek assistance from the Commission in resolving the situation. The tower constructor, however, may not begin construction until the adverse effect is resolved. The parties, with assistance from Commission staff often resolve the situation by developing a Memorandum of Agreement which outlines mitigation measures designed to avoid or minimize the adverse effect. In addition to contacting the SHPOs, tower constructors are also required to assess whether the proposed project would impact historic sites to which federally recognized Indian tribes (including Alaska Native villages) and NHOs attach religious or cultural significance.

These assessments must be made for projects to be located on land to which Indian tribes have ancestral, aboriginal or ceded interests - and thus may include a substantial portion of the entire land mass of the United States. Indian tribes then have an opportunity to identify historic properties that they believe would be adversely affected by a proposed project. While this process seems simple and straightforward on its face, problems soon developed in connection with the rollout of PCS service during the late 1990's. Tower constructors expressed the concern that, because the definition of historic property in the statute appears to be so broad that nearly any building or structure, more than fifty years in age might qualify. In addition, due to the large volume of tower constructions occurring simultaneously around the country, backlogs in reviews developed. Rather than waiting thirty days for a recommendation, it became routine for reviews to take forty five, sixty, ninety or even 120 days to complete. Worse still, more than ninety percent of these reviews, once completed, resulted in "no effect" recommendations from the SHPO.

SHPOs expressed concern about the quality of submissions they received from Commission tower constructors, noting they varied in detail, format and often were insufficient to perform a review. Finally, many Indian tribes reported tower constructors frequently failed to contact them prior to construction, which, unfortunately, on at least one occasion led to the destruction of a tribal sacred site. Moreover, tribes contended that companies, by contacting them directly, violated their sovereign right to consult with the Commission on a government-to-government basis concerning Commission-licensed undertakings. In order to address these issues, the Working Group, began developing a Nationwide Agreement, designed to streamline and tailor the NHPA Section 106 review process for Commission undertakings. The Working Group established by the Council in July 2000, consisted of representatives of the Council and Commission, SHPOs, Indian tribes, the communications industry, and historic preservation consultants.

How does the Nationwide Agreement address these difficulties? The Nationwide Agreement improves the Section 106 process in five principal ways by:

Refining the process for identifying "eligible properties," by requiring the use of records in the SHPO offices."
Excluding certain categories of undertakings from review that, as determined by the Working Group, are not likely to adversely effect historic properties. These undertakings include: (a) Enhancements to towers; (b) Temporary Towers; (c) Replacement Towers; (d) Certain Towers Constructed in Industrial and Commercial Areas; (e) Certain towers constructed in Utility Corridor rights-of-way and (f) Towers constructed in SHPO/THPO designated areas."
Establishing specific procedures for contacting SHPOs, including a provision authorizing tower constructors to proceed with construction if a SHPO does not respond within thirty days."
Creating standard forms, known as the submission packet, establishing a uniform, nationwide standard for filings to SHPOS. On January 18, 2005, OMB approved FCC forms 620 and 621 (See OMB No. 3060-1039).
Establishing guidelines for consulting with federally recognized Indian tribes and NHOs.

Other Provisions of the Nationwide Agreement

Among other things, the Nationwide Agreement also:

Develops uniform guidelines for public notification and participation in the Section 106 process.
Establishes a presumed APE for tower constructions.
Identifies situations where archaeological surveys may be appropriate.
Mandates the use of qualified experts in certain circumstances.
Sets forth procedures for handling historic properties that may be discovered during tower construction.
Sets out a framework for handling situations where towers are constructed without first completing the Section 106 process.

Benefits of the Nationwide Agreement

The Nationwide Agreement is clearly a "win-win" for all of the parties who participated in the Council's Working Group. For tower constructors, the Nationwide Agreement streamlines the review process by eliminating reviews where adverse effects are very unlikely, such as along utility corridor rights-of-way and in industrial and commercial areas. In addition, it refines the process for identifying eligible properties, and establishes a date certain by which initial recommendations by SHPOs will be made, all things being equal. Moreover, by prescribing standard forms, uniform methods of seeking public input, and for contacting Indian tribes and NHOs, the overall Section 106 process will be more efficient and effective. For SHPOs, submissions on Commission-prescribed forms will be uniform and complete, facilitating reviews. Moreover, by mandating the use of qualified experts in certain situations, inaccurate submissions and other errors that have caused delays will be reduced. Finally, by reducing paperwork associated with reviews in areas where no effects to historic properties are likely will ensure that resources are expended in protecting sites that are truly historic. For Indian tribes, the Nationwide Agreement affords them a role in the process, even for certain excluded undertakings, ensuring sacred sites and other historic properties to which they attach religious or cultural significance will be protected. In addition, a tribes right to request government-to-government consultation is protected. Finally, Commission staff will benefit from added efficiency in the process, clearer standards, and certainty in the review process for cases where a tower constructor or SHPO seeks Commission review.