Common use of Resolution of Adverse Effect Clause in Contracts

Resolution of Adverse Effect. If the USACE determines that the Undertaking will have an adverse effect on historic properties as measured by criteria in § 800.5.(a)(1), the agency shall consult with the NYSHPO, the Tribes, and other consulting parties (CPs) to resolve adverse effects in accordance with § 800.6. a. For historic properties that the USACE and NYSHPO agree will be adversely affected, the USACE shall: 1. Consult with the NYSHPO to identify other individuals or organizations to be invited to become CPs. If additional CPs are identified, the USACE shall provide them copies of documentation specified in § 800.11(e) subject to confidentiality provisions of § 800.11(c). 2. Afford the public and interested parties an opportunity to express their views on resolving adverse effects in a manner appropriate to the magnitude of the project and its likely effects on historic properties. 3. Consult with NYSHPO, the NYDEC, the Tribes, and other CPs which have indicated an interest in the Undertaking to seek ways to avoid, minimize, or mitigate adverse effects. 4. The USACE, in consultation with NYSHPO, the Tribes, and other CPs as appropriate, shall prepare an historic property treatment plan which describes mitigation measures the USACE proposes to resolve the Undertaking’s adverse effects and provide this plan for review and comment to the NYSHPO, the Tribes and other CPs that have indicated an interest in the Undertaking. All parties shall have 30 calendar days in which to provide a written response to the USACE. b. If the USACE and NYSHPO fail to agree on how adverse effects will be resolved, the USACE shall request that the Council join the consultation and provide the Council with documentation pursuant to § 800.11(g). 1. If the Council agrees to join the consultation, the USACE shall proceed in accordance with § 800.9. 2. If, after consulting to resolve adverse effects pursuant to Stipulations I or II of this PA, the Council, USACE, NYSHPO or Tribes determines that further consultation will not be productive, then any party may terminate consultation in accordance with the notification requirement and process prescribed by § 800.7. A. Changes in the Undertaking. If construction on the Undertaking has not commenced and the USACE determines that it will not conduct the Undertaking as originally coordinated, the USACE shall reopen consultation pursuant to Stipulation I D – G. B. Unanticipated Discoveries or Effects. Pursuant to § 800.13(a)(2), if historic properties are discovered or unanticipated effects on historic properties are found after construction on an Undertaking has commenced, the USACE shall ensure that all operations with the potential to affect an historic property are immediately ceased, develop a treatment plan to resolve adverse effects, and notify the NYSHPO and the Tribes within 48 hours of the discovery. The notification shall include the USACE assessment of National Register eligibility of affected properties and proposed actions to resolve the adverse effects. Comments received from the NYSHPO and Tribes which have expressed an interest in the Undertaking within 48 business hours of the notification shall be taken into account by the USACE in carrying out the proposed treatment plan. The USACE may assume NYSHPO concurrence in its eligibility assessment unless otherwise notified by the NYSHPO. The USACE shall provide the NYSHPO and the Tribes which have expressed an interest in the Undertaking a report of the USACE actions when they are completed.

Resolution of Adverse Effect. If the USACE determines that the Undertaking will undertaking shall have an adverse effect on historic properties as measured by criteria in 36 CFR § 800.5.(a)(1800.5(a)(1), the agency USACE shall consult with the NYSHPO, the Tribes, and other consulting parties (CPs) SHPO to resolve adverse effects in accordance with 36 CFR § 800.6. a. a) For historic properties that the USACE and NYSHPO the SHPO agree will shall be adversely affected, the USACE shall: (1. ) Consult with the NYSHPO SHPO to identify other individuals or organizations to be invited to become CPsconsulting parties. If additional CPs consulting parties are identified, the USACE shall provide them copies of documentation specified in 36 CFR § 800.11(e) subject to confidentiality provisions of 36 CFR § 800.11(c). (2. ) Afford the public and interested parties an opportunity to express their views on resolving adverse effects in a manner appropriate to the magnitude of the project and its likely effects on historic properties. (3. ) Consult with NYSHPOthe SHPO, the NYDEC, the Tribes, and other CPs which have indicated an interest in the Undertaking any additional consulting parties to seek ways to avoid, minimize, minimize or mitigate adverse effects. (4. ) The USACEUSACE shall develop an appropriate mitigation plan, in consultation with NYSHPOall parties of the PA and other stakeholders. Signatories, the TribesInvited Signatories, and other CPs as appropriate, shall prepare an historic property treatment plan which describes mitigation measures the USACE proposes to resolve the Undertaking’s adverse effects and provide this plan for review and comment to the NYSHPO, the Tribes and other CPs that have indicated an interest in the Undertaking. All parties Concurring Parties shall have 30 thirty (30) calendar days in which to provide a written response to the USACEproposed mitigation plan. The final mitigation plan shall be made available to the public and the status of ongoing mitigation shall be provided to all parties of the PA twice per year. Upon fulfillment of the mitigation plan, the USACE shall notify all parties of the PA in writing. b. b) If architectural historic properties require mitigation, upon USACE and SHPO concurrence on appropriate mitigation measures, all consulting parties shall be notified and the undertaking may proceed once any mitigation component requiring existing conditions documentation (e.g., photography) is completed and concurrence of its applicability is obtained from the SHPO. All other mitigation measures shall be completed within 30 months upon concurrence of the mitigation measure. c) If the USACE Signatories and NYSHPO Invited Signatories of the PA fail to agree on how adverse effects will shall be resolved, the USACE shall request that the Council ACHP join the consultation and shall provide the Council ACHP and all consulting parties with documentation pursuant to 36 CFR § 800.11(g). 1. d) If the Council ACHP agrees to join the consultation, the USACE shall proceed in accordance with 36 CFR § 800.9. 2. e) If, after consulting to resolve adverse effects pursuant to Stipulations I or II of this PAeffects, the CouncilACHP, the USACE, NYSHPO or Tribes determines SHPO, Signatories and Invited Signatories determine that further consultation will shall not be productive, then any party may terminate consultation in accordance with the notification requirement requirements and process processes prescribed by in 36 CFR § 800.7800. A. Changes in the Undertaking. If construction on the Undertaking has not commenced and the USACE determines that it will not conduct the Undertaking as originally coordinated, the USACE shall reopen consultation pursuant to Stipulation I D – G. B. Unanticipated Discoveries or Effects. Pursuant to § 800.13(a)(2), if historic properties are discovered or unanticipated effects on historic properties are found after construction on an Undertaking has commenced, the USACE shall ensure that all operations with the potential to affect an historic property are immediately ceased, develop a treatment plan to resolve adverse effects, and notify the NYSHPO and the Tribes within 48 hours of the discovery. The notification shall include the USACE assessment of National Register eligibility of affected properties and proposed actions to resolve the adverse effects. Comments received from the NYSHPO and Tribes which have expressed an interest in the Undertaking within 48 business hours of the notification shall be taken into account by the USACE in carrying out the proposed treatment plan. The USACE may assume NYSHPO concurrence in its eligibility assessment unless otherwise notified by the NYSHPO. The USACE shall provide the NYSHPO and the Tribes which have expressed an interest in the Undertaking a report of the USACE actions when they are completed.