950 CMR, § 71.07 - Review of Projects

(1) State Body Responsibilities. Prior to any state body undertaking a project, or any state body funding or licensing, in whole or in part, a private project, the state body must notify the MHC of the project, unless the project clearly does not have an area of potential impact due to its nature. Furthermore, the notice should be given to the MHC as early as possible in the planning process of a project, and must be given before a state body takes action or makes a decision which forecloses alternatives that could eliminate, minimize, or mitigate adverse effects, or limits the MHC's ability to comment or consult. A private project proponent may notify the MHC. A state body may direct all its grantees or licensees to provide the MHC with the required notice. In notifying the MHC, a state body or private project proponent may either complete an Environmental Notification Form as required under MEPA, or a Project Notification Form provided by the MHC. The notification form shall be completed with the most accurate and comprehensive information available. The form shall adequately document the information necessary for the MHC to make an informed and reasonable determination of the effect of a proposed project on State Register Properties.

(2) MHC Responsibilities. The MHC will issue a written determination of effect within 30 days of receipt of an adequately documented Project Notification Form or Environmental Notification Form.

(a) Identification of State Register Properties. Within 30 days of receipt of an adequately documented Project Notification Form or Environmental Notification Form, the MHC shall consult the State Register to determine whether State Register properties exist within a project's area of potential impact. If the MHC concludes that no State Register properties exist within a project's area of potential impact, the MHC will document this conclusion and so inform the state body or the private project proponent in writing.

(b) Determination of Adverse Effect. For each State Register property that is located within a project's area of potential impact, the MHC shall apply the Criteria of Adverse Effect to determine whether the project will have an adverse effect upon the historical, architectural, archaeological, or cultural characteristics of the property that qualified it for inclusion in the State Register. The MHC shall make such determination in writing, specifying the reasons for the adverse effect finding.

1. No Effect. The MHC may determine that a project will have no effect on the characteristics of a property that qualified it for inclusion in the State Register, and shall make such determination in writing. Upon receipt of the MHC's determination that a project will have no effect, the state body may proceed with the project, or in the case of a private project, may proceed with the funding or licensing of such project.

2. Determination of No Adverse Effect. The MHC may determine the effects of a project on the historical, architectural, archaeological, or cultural characteristics of the property are not adverse, and shall make such determination in writing. Upon receipt of the MHC's determination that a project will have no adverse effect, the state body may proceed with the project, or in the case of a private project, may proceed with the funding or licensing of such project.

3. Determination of Adverse Effect. The MHC may determine that the effects of a project on the historical, architectural, archaeological, or cultural characteristics of the property are adverse, and shall make such determination in writing, specifying the criteria of adverse effect that are met by the project. The MHC, the state body, and the project proponent shall immediately proceed with the consultation process.

(c) Other Historical and Archaeological Assets. In reviewing a Project Notification Form or an Environmental Notification Form, the MHC shall consult the Inventory to determine whether properties not listed in the State Register exist within the project's area of potential impact. If the Inventory indicates that historic properties not listed in the State Register exist within the project's area of potential impact, the MHC will so notify the state body and the project proponent. To the extent feasible, the MHC will notify the state body and the project proponent whether such property will be listed in the State Register prior to the conclusion of the project review under 950 CMR 71.00. The MHC shall encourage the state body and the project proponent to eliminate, minimize, or mitigate adverse effects to properties included in the Inventory.

(d) Failure to Request the Comments of the MHC. Any person may advise the MHC of projects that threaten State Register properties and appear to involve a state body. The MHC may investigate these matters. If there is state body involvement, the state body shall fulfill its responsibilities under 950 CMR 71.00. The MHC will exercise its authority to comment to the state body even though written notification has not been received.

(e) Suspension of Action. Until the MHC issues its comments pursuant to 950 CMR 71.00, the state body and project proponent shall not undertake or sanction any action or make any irreversible commitment that could result in an adverse effect on a State Register property or would foreclose the consideration of modifications or alternatives to the proposed project that could eliminate, minimize, or mitigate such adverse effects.

(f) Failure of the MHC to Make a Determination. If the MHC fails to make a determination of adverse effect within 30 days of receipt of an adequately documented Project Notification Form or Environmental Notification Form, the state body may proceed with the project, or in the case of a private project, may proceed with the funding or licensing of such project.

(g) Project Changes. If after the MHC completes the review of a proposed project, the project substantially changes, the project proponent shall promptly notify the MHC and request a new MHC review and determination based upon the project changes. The MHC shall conduct the review process to determine whether the project changes will have any adverse effect on State Register properties. The MHC must make a determination of effect within 30 days of receipt of notification. If the MHC makes an adverse effect determination, the MHC, the state body, and the project proponent shall immediately proceed with the consultation process. A project's substantial change, requiring additional MHC review, shall consist of any changes which could reasonably be expected to cause an effect in the historical, architectural, archaeological, or cultural qualities of State Register properties.

(3) Consultation Process. Upon determination of adverse effect, the MHC Division, the state body, and the project proponent shall consult to consider project alternatives that could eliminate, minimize, or mitigate adverse effects on State Register properties. Consultation with the MHC Division shall commence within 15 days of the determination of adverse effect except where the state body or the project proponent has requested and been granted an extension by the MHC Division. The MHC Division shall invite the appropriate local historical commission or local historic district commission to participate in consultation, and may invite such commission to be a consulting party to an agreement. The MHC Division, the state body, or the project proponent may invite interested parties to participate in consultation or to be a consulting party to an agreement. The views of the public are also encouraged. The consultation process shall be conducted in a timely manner, and all parties should act in good faith to minimize time delays. The consultation process may involve the following:

(a) On-Site Inspection. At the request of any of the consulting parties, the state body or project proponent shall allow on-site inspection.

(b) Public Informational Meeting. At the request of any of the consulting parties or on its own initiative, the MHC may conduct a meeting open to the public, where representatives of national, state, or local units of government, representatives of local historical commissions, local historic district commissions, interested parties, and the public may receive information and express their views on the project, its effects on State Register properties, and alternative courses of action that could eliminate, minimize, or mitigate any adverse effect on such properties.

(c) Consideration of Alternatives.

1. The consulting parties shall meet in order to discuss project alternatives which could eliminate, minimize, or mitigate the adverse effect. The state body or project proponent shall provide to the MHC all data and information necessary to identify and evaluate such alternatives.

2. The MHC shall maintain a record, including a record of sources of information consulted, that documents all alternatives considered during the consultation process.

(d) Avoidance or Satisfactory Mitigation of Adverse Effect. After a thorough review of the alternatives, the consulting parties may agree that there is a prudent and feasible alternative that eliminates, minimizes, or mitigates the adverse effects of the project. Upon such agreement, the MHC shall, with the assistance of any consulting party, prepare a Memorandum of Agreement describing such alternative and submit the Memorandum to the state body and the project proponent. If the state body and the project proponent sign the Memorandum agreeing that they will comply with the measures specified to eliminate, minimize, or mitigate the adverse effect, the Memorandum shall be signed by the Executive Director on behalf of the MHC and a copy shall be sent to the state body and the project proponent.

(e) Acceptance of Adverse Effect. After a thorough review of the alternatives, the MHC may determine that there are no feasible or prudent alternatives to eliminate, minimize, or mitigate the adverse effects. Upon such decision, the MHC shall, with the assistance of any consulting party, prepare a Statement of Acceptance of the Adverse Effect, and submit such Statement to the state body and the project proponent.

(4) Failure to Agree. After a thorough review of alternatives and consultation with the consulting parties, the project proponent, the state body, or the MHC may conclude that the parties fail to agree. The project proponent or state body may request the MHC, or the MHC may undertake to prepare a Memorandum of Agreement outlining the MHC's conclusion that a prudent and feasible alternative exists that would eliminate, minimize, or mitigate the adverse effects of the project. If the MHC concludes that the consulting parties have made reasonable and good faith efforts to complete the consultation process in a comprehensive manner, the MHC shall promptly prepare the requested Memorandum of Agreement and submit it for consideration to the state body and project proponent. Should the state body or project proponent fail to agree to comply with the specified alternative, it shall so notify the MHC. The proposed Memorandum of Agreement shall be placed on the agenda of a regular meeting of the MHC for consideration within 60 days of receipt of such notification. Consideration of the proposed Memorandum of Agreement may, with the concurrence of the MHC, be postponed at the request of the state body or project proponent. The state body shall not proceed with the project, or in the case of a private project, shall not proceed with the funding or licensing of the project, and the private project proponent shall not proceed with the project until the MHC issues its comments.

(5) Massachusetts Historical Commission Meeting.

(a) Consideration of the Proposed Memorandum of Agreement. In considering the proposed Memorandum of Agreement, the MHC shall review the following information:

1. The Project Notification Form or Environmental Notification Form;

2. The Determination of Adverse Effect;

3. The information listing the property in the State Register of Historic Places;

4. Any additional information submitted by the state body or project proponent, including any counter Memorandum of Agreement; and

5. Any information submitted by other consulting parties, by the Executive Director, or by the public.

All information must be submitted to the MHC, in writing, at least ten days prior to the meeting at which the proposed Memorandum of Agreement shall be reviewed, unless a shorter period of time is approved by the MHC.

(b) Statements to the MHC. At the scheduled MHC meeting, the state body and the project proponent shall discuss with the MHC alternatives to the project and means of eliminating, minimizing, or mitigating the adverse effects. Other consulting parties, interested public and private organizations, or individuals may make oral or written remarks to the MHC, provided that they notify the Executive Director at least two days in advance of the meeting, unless prior notification is waived by the MHC.

(c) Comments of the MHC. Within 20 days after the MHC meeting, the MHC shall submit to the state body and the project proponent either a finding of acceptance of adverse effect or a statement specifying prudent and feasible alternatives that exist to eliminate, minimize, or mitigate the adverse effects. If there is a consensus at the conclusion of the meeting, the state body and the project proponent may request that a Joint Memorandum of Prudent and Feasible Alternatives be prepared.

(d) Joint Memorandum. If a Joint Memorandum of Prudent and Feasible Alternatives is prepared, and the state body and project proponent sign such Memorandum agreeing to comply with the measures stipulated to eliminate, minimize, or mitigate the adverse effect, then the state body may proceed with the project, or in the case of a private project, may proceed with funding or licensing such project. The Joint Memorandum of Prudent and Feasible Alternatives shall be prepared by the MHC with the assistance of any consulting party in a timely manner.

(e) State Body Action in Response to MHC Comments. If either the state body or the project proponent fails to agree to comply with the MHC's Statement of Prudent and Feasible Alternatives or proposed Joint Memorandum of Prudent and Feasible Alternatives, then the state body or the project proponent shall prepare a detailed response explaining why such state body or project proponent refuses to adopt the MHC's finding. No state body shall proceed with the project or in the case of a private project, no state body shall fund or license such project, and no project proponent shall proceed with the project until ten days after the submission of such response to the MHC.

Notes

950 CMR, § 71.07