Memorandum of Agreement and Programmatic Agreements in the disaster context

LISA KATCHKA
Office of General Counsel, Federal Emergency Management Agency, Washington, DC, U.S.A.

Introduction

As two of the Federal Emergency Management Agency's main program objectives include recovery efforts for victims of a disaster, it is important that Federal Emergency Management Agency (FEMA) actions be allowed to proceed in as timely a manner as possible. With respect to fulfilling our responsibilities under Section 106 of the National Historic Preservation Act (NHPA), FEMA's Historic Preservation Officer has worked closely with the Advisory Council on Historic Preservation (ACHP) to streamline the standard review process.

General

The programmatic agreement allows for the requirements of the NHPA to be carried out in a manner tailored to the program requirements, time line and resources of FEMA. There are a number of ways in which the programmatic agreement has simplified the Section 106 review process:
  1. Firstly, at the earliest moments of disaster response, the PA assigns various responsibilities of historic preservation review to certain agencies or entities:
  2. Secondly, the programmatic agreement spells out specific procedures which short cut the process otherwise outlined in part 800:

First Midwest Floods Programmatic Agreement

The first programmatic agreement which was fully co-ordinated between FEMA and the ACHP to address historic preservation efforts was developed in the aftermath of the Midwest Floods of 1993. The 1993 Floods were particularly suited to the PA concept, since the floods had affected a large area across a number of states, resulting in similar damages to homes and public buildings.
  1. To address all of these projects, essentially simultaneously, through the full 106 process, would have taxed FEMA resources beyond our capabilities; the PA simplified the process greatly, reducing the steps and obligations required by FEMA;
  2. The programmatic agreement also provided a means to assure a somewhat standardised process by which all of the midwestern states would handle historic review, as the identical agreement was used in each state; and
  3. The process of developing the programmatic agreement provided an opportunity for the ACHP and FEMA to make the Regional offices, the States and even the SHPOs more aware of the requirements of the NHPA and their respective roles in conducting historic review.
Since then, the programmatic agreement used for the Midwest agreements has gone through a number of changes and become more refined with each subsequent agreement - used in Georgia, Texas and in California for both the earthquakes and the flooding here in the north.

Nationwide Programmatic Agreement

The concept of the programmatic agreement continues to evolve with each draft that is developed for a new disaster. As FEMA has responded to more types of disasters with programmatic agreements, has encountered a greater variety of historic and cultural resources to be covered by the agreements (historic churches or city halls damaged by flood or earthquake, petroglyphs on quarry walls from which stone may be taken for a FEMA action, archaeological artefacts or Indian burial grounds at project sites), and as we have grown familiar with the types of FEMA activities which are not likely to adversely affect such resources, the programmatic agreement has evolved into a more comprehensive document.

Consequently, FEMA has initiated a project to develop a "Nationwide Programmatic Agreement" which would act as an umbrella agreement which would apply to any disaster occurring anywhere in the country, and would further expedite FEMA's ability to react quickly in initiating disaster recovery and mitigation projects, as FEMA and the Council would not have to negotiate a new programmatic agreement each time there was a disaster. The development of the Nationwide programmatic agreement is an ideal opportunity to co-ordinate with the Council, other agencies and the states to arrive at a thoughtful and workable document, based on the input of a range of experiences and interests. This agreement, currently in draft form, will be circulated to the states through the National Emergency Management Association and to the SHPOs through the National Conference of State Historic Preservation Officers.

Memoranda of Agreements

Last thing I want to touch on are memoranda of agreement. Although the programmatic agreement is intended to cover the bulk of all projects which are likely to arise in the course of disaster recovery or mitigation efforts with respect to any given disaster, there are sometimes projects arising from a disaster not covered by a programmatic agreement, or projects which are so large in scope and potential adverse effect that the increased surveying, review, consultation, treatment, documentation or controversy warrants a special agreement to address just the procedures for fulfilling 106 requirements for that project.

Whereas the key to an effective programmatic agreement seems to be to anticipate the issues which may arise in order to provide for treatment and co-ordination which will speed the 106 process along, the key to an effective memoranda of agreement seems to be the pre-agreement coordination of the Agency with interested parties.

There are several examples of where historic preservation groups provided input into the memoranda of agreement process with respect to a number of historic structures in California, such as San Francisco City Hall of the Los Angeles Colisseum. Probably the ultimate example of public participation from FEMA experience (with which many of you may be familiar) was the proposal to rebuild a marine laboratory at a new site - happened to contain a number of archaeological resources including, for example, Native American artefacts, midden, lithic workshop and remnants of human remains suggesting a possible Native American burial ground. In this case, an interest group sprang up to oppose the project and, of course, there were Native American interests to be considered. The result was a very lengthy memoranda of agreement process, which it seemed would not end even when the signatures were collected, and that entailed more than giving the interested parties a chance to review the draft memoranda of agreement. It was not even clear who was entitled to be an interested party, as individual claims of tribal descent were not coming just from individuals recognised officially by the United States to be legal descendants. The memoranda of agreement eventually included a number of innovative ways of retaining the Native American input throughout the project implementation, involving them in plan review, treatment and data recovery review, etc. In addition, the applicant agreed to implement an educational exhibit dealing with Native American culture, lifestyles and archaeology in co-operation with the Native Americans concurring in the memoranda of agreement. With the co-operation of the California SHPO and the Advisory Council, the memoranda of agreement seems now to have had a happy ending.

End

I want to end by pointing out that through all of the Agreements, programmatic agreements or memoranda of agreements, the ACHP, the SHPOs and the State Emergency offices and FEMA co-ordinated throughout on process and shared responsibilities, as well as on determining the language to be used to reflect those agreements. I expect that the same co-ordination will result in a useful Nationwide programmatic agreement in the coming months.

  [Top of page]
[Return to Table of Contents]

Document version:1.0.6
Document created: August 9, 1995
Document last updated: October 23, 1997
Maintained by: © Dirk H. R. Spennemann , e-mail, dspennemann@csu.edu.au