I’m helping an agency client plod along toward the end (I hope) of a long and complicated consultation regarding a new construction project. The other consulting parties have quite justly criticized the responsible agency for tardiness in initiating review, too late for the parties to influence key siting decisions. But now the same parties are wringing their hands over minor issues that can be resolved only in the process of final design. “Oh dear oh dear,” they say, “maybe we shouldn’t conclude a Memorandum of Agreement (MOA) until we’ve reviewed much more detailed plans and specifications.”
People, you can’t have it both ways. If you’re going to insist (as you should, and as the law requires), that agencies initiate and pursue Section 106 review early in planning, you cannot simultaneously say that they have to deliver to their consulting partners fully developed plans and specifications addressing every imaginable jot and twiddle.
Sure, the small stuff needs to be resolved, and the devil does lie in the details. But the way to handle this – or at least A way to handle it – is to include “process” stipulations in the MOA calling out what you think the issues might be and prescribing ways to resolve any problems they present. Usually this will involve review of plans and specifications by all or some of the consulting parties (or by others) and a process for addressing any concerns raised.
Such provisions are almost automatically included in a lot of MOAs (including the one I’m working on), but perhaps because their inclusion has become so automatic, people seem to have forgotten what they’re for. What they’re for is to allow us to address projects under Section 106 early in planning, establish agreement about generally how a project will be carried out, and then make adjustments as necessary to resolve relatively minor design issues as detailed plans and specifications are developed.
And no, inclusion of “process” stipulations does not automatically force an agency to negotiate a Programmatic Agreement (PA). It’s perfectly OK to include such stips in an MOA. If your agreement begins to become composed only of “process” stips, then you probably do need to think about a PA, but there are innumerable perfectly good MOAs that include “process” stips, and the regulations provide no bar to their inclusion.