How much consultation is enough?
While consultation establishes the context within which a federal agency takes into account the effect of its undertaking on historic properties, there is no hard and fast rule about how much consultation is enough. The ACHP’s regulations call for consultation to be carried out in a manner “appropriate to the scale of the undertaking and the scope of the federal involvement” [36 CFR § 800.2(a)(4)], 1 taking into account the nature of the undertaking and its effects on historic properties [36 CFR § 800.3(c)(3);2 (See “Consulting with Indian Tribes in the Section 106 Review Process” at www.achp.gov/regs-tribes.html and “Native Hawaiian organizations and the Section 106 Review Process” at www.achp.gov/regs-nhos.html)].
Where listed or eligible archaeological sites are likely to be involved, the federal agency should consider questions such as the following when planning for consultation:
* What is the significance of the site likely to be affected?
* What is the likely value of the site to living communities and cultural descendants?
* Is the nature of the undertaking the kind that may diminish the integrity of the site? For example, is the scale of the undertaking such that extensive ground disturbance, with the potential to destroy the site, anticipated? Or, if an Indian tribe or NHO attaches traditional religious and cultural significance to the site, will that association be damaged or destroyed?
- (4) Consultation. The agency official shall involve the consulting parties described in paragraph (c) of this section in findings and determinations made during the section 106 process. The agency official should plan consultations appropriate to the scale of the undertaking and the scope of Federal involvement and coordinated with other requirements of other statutes, as applicable, such as the National Environmental Policy Act, the Native American Graves Protection and Repatriation Act, the American Indian Religious Freedom Act, the Archeological Resources Protection Act and agency-specific legislation. The Council encourages the agency official to use to the extent possible existing agency procedures and mechanisms to fulfill the consultation requirements of this part.
- (3) Conducting consultation. The agency official should consult with the SHPO/THPO in a manner appropriate to the agency planning process for the undertaking and to the nature of the undertaking and its effects on historic properties.