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Statewide Section 106 Programmatic Agreements: A Streamlining Initiative

Section 1309 ("Environmental Streamlining") of the Transportation Equity Act for the 21st Century (TEA-21), Public Law 105-178 (as amended by the TEA-21 Restoration Act, Public Law 105-206), calls on Federal agencies to expedite the environmental review process, while protecting and enhancing the environment. Statewide Section 106 programmatic agreements (PAs) are one way that the Federal Highway Administration (FHWA) can further this goal. This report will outline several of the statewide Section 106 PAs that have been executed to date, and explain the history and current status of each agreement. It will also indicate under what circumstances these agreement documents can be used as models for other State DOTs seeking to enact similar types of PAs.

A. Introduction

Federal-aid highway projects often have little or no effect on historic properties. In these cases, the standard SHPO project-by-project review process can result in unnecessary added cost and time needed for project completion. By authorizing State Departments of Transportation (DOTs) to conduct all or some Section 106 review on behalf of FHWA Divisions, statewide PAs will accelerate this process. Many State DOTs already have existing cultural resource management programs with a professional staff fully qualified to take on some responsibility for Section 106 review. Moreover, allowing State DOTs to review some projects will reduce redundancy of effort between SHPO, FHWA, and DOTs. Philosophically, this delegation is closer to the regulations, since the DOTs as agents for the Federal agency make the eligibility and effect calls, rather than the SHPO, which is often the case.

Statewide Section 106 PAs have been introduced in a number of states including Washington, Pennsylvania, Maryland, New Jersey, and Vermont. The Vermont PA goes the furthest by delegating the broadest authority under Section 106 to the Vermont Agency of Transportation (VAOT), which has been given the authority to review categories of projects including those that have adverse effects on historic properties. The Washington and New Jersey PAs authorize the DOT to review certain categories of undertakings; the former also includes a list of exempted projects. The Pennsylvania and Maryland PAs are minor highway project agreements that stipulate DOT in-house review for certain categories of minor projects and include classes of projects that are exempted from review. Only the Vermont PA authorizes the State DOT to review projects with adverse effects as a delegated entity. Almost all DOTs review projects internally.

The individual agreement documents from the States listed above have been tailored to fit the needs of each individual State, each with its own unique environmental, social, and historical perspective, concerns, and philosophies. Although these existing PAs can be used as a general outline for other States, the specific details of each new PA will need to be worked out at the state level. States inclined to simply copy other State PAs will miss the opportunity to develop ones that will better fit their own needs.

The development of a PA is a complex and collaborative process, the details of which must be agreed upon by all of the signatories involved (i.e. the FHWA, SHPO/THPO, DOT, and the Advisory Council on Historic Preservation [ACHP]). Be advised that the delegation of all, or some, of FHWA's Section 106 responsibility to State DOTs, will hinge on a State's proven commitment to protect and preserve its cultural heritage as evidenced in existing State mission statements, historic preservation plans, proven track record, policy statements, and legislation. In the case of Vermont, for instance, their PA was executed in full agreement by all its signatories as they have historically shown a commitment to the protection of Vermont's cultural resources and have included historic preservation as part of the mission statement. Not all States have embraced such a commitment, and it is unlikely that similar PAs will be executed as readily in States that have not demonstrated similar high standards of preservation practice.

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B. The Programmatic Agreements

1. Vermont Statewide Federal Aid Highway Programmatic Agreement

a. Summary

On April 5, 2000, the FHWA, VAOT, Vermont State Historic Preservation Officer

(SHPO), and the ACHP executed an agreement that authorizes the broadest authority to a State DOT under Section 106 to date. The PA allows the FHWA to fulfill its Section 106 responsibilities for the Federal Aid Highway Program in Vermont through VAOT who has assumed the authority for final review of almost all transportation projects. The PA went into effect in February 2001, and will remain in place for three years with an option for renewal in 2004. It was officially executed upon completion of the Manual of Standards and Guidelines, which implements the PA. The specific details of the PA are laid out in the Manual, which includes the basic set of standards and guidelines for the VAOT in-house Section 106 review. Development of the Manual was overseen by a steering committee composed of VAOT, VT SHPO, and FHWA staff with additional input provided by the ACHP and the Vermont State Advisory Council.

The PA allows VAOT to complete almost all Section 106 review in-house. In the case of an adverse effect determination, VAOT follows the Standard Mitigation Measures stipulated for each type of undertaking (such as the salvage of architectural or engineering features, or data recovery of archaeological information) as outlined in the Manual. Although the VT SHPO receives copies of all VAOT correspondence, they do not get involved in specific projects unless there is a need to complete an MOA. MOAs are only completed in rare cases where Standards Mitigation Measures are not stipulated for a particular type of undertaking.

The PA establishes professional requirements for VAOT's historic preservation staff including two new positions: VAOT Archaeology Officer, and VAOT Historic Preservation Officer (these positions were filled with existing VAOT employees). Other program requirements include in-house training, public outreach, and a process for an annual evaluation by the VT SHPO including the submission of an annual report by VAOT outlining project summaries to the VT SHPO, FHWA, the Vermont Advisory Council on Historic Preservation and other interested groups. The Manual clearly describes the procedures for addressing problems including supplementary review, dispute resolution, amendment, and termination.

The Manual outlines a number of ongoing "innovative programs" at VAOT in addition to establishing standards for Section 106 review. These include:

  1. The analysis and synthesis of the available data derived from transportation projects;
  2. The creation of a statewide GIS-based statewide of watershed-wide predictive models;
  3. Updating existing historic contexts;
  4. Improved Indian tribal consultation;
  5. The continuation of special educational outreach programs; and
  6. The development of a GIS-based historic building and structure survey.

The Manual also envisions the establishment of new programs to further historic and archaeological preservation in Vermont. Suggested programs include:

  1. The development of statewide surveys of historic properties;
  2. The creation of statewide management and preservation plans;
  3. Encouraging the use of creative mitigation;
  4. The development of new policies (such as the purchase of historic sites) in order to promote the protection of cultural resources;
  5. The creation of strategies to permanently preserve sites; and
  6. The development of initiatives for "property easement" project review.

These ongoing and future planned programs will allow for timelier project completion by eliminating redundancy of effort during project scoping and providing archaeological consultants with readily available data concerning the locations of National Register-eligible historic properties, sites, traditional cultural properties, and historic contexts. VAOT's commitment to public outreach will further ensure that the public will have a better understanding of the cultural resources in Vermont, and be more supportive of publicly funded archaeological data recovery efforts in their State.

b. Report from the Field

According to the VAOT Historic Preservation Officer, Scott Newman, the process of creating the programmatic agreement began in 1996.[1] Over a period of 19 months, a committee consisting of FHWA, SHPO, and VAOT employees, met weekly to create the first draft of the PA. All three agencies have had a good working relationship, open communication, and a commitment to excellence in historic preservation. This trusting environment was an important component in the process of creating this PA.

Although the PA has only been in effect for a few months, the time and subsequent cost savings have been dramatic. Routine projects can begin immediately, saving weeks of time; for larger, more complex projects, the time saving is expected to be in degrees of months. Ibid

For other State DOTs seeking to develop similar statewide Section 106 PAs, Newman suggests three things: 1) establish in-house expertise; 2) develop a good working relationship with the SHPO; and 3) make sure you have the support of the State legislature. Newman suggests that once these things are in place, a State DOT may be able to take on some review responsibility a little at a time beginning with resource identification. Ibid

Newman points out that the VT SHPO and VAOT have traditionally had a strong and cooperative working relationship. In addition, VAOT had qualified and experienced staff that was fully equipped to take on these new responsibilities. Moreover, VAOT has an established record of rigorous Section 106 compliance, and has historically approached this effort in a creative, cooperative, and progressive fashion. VAOTs commitment to research was established by its ongoing "innovative programs" (as defined in the Manual) established well before the PA was executed. Combined, the strong research and compliance record established by VAOT, and their cooperative and trusting relationship with VT SHPO has made development and implementation of this PA a reality. Ibid

c. Contacts

Scott Newman, Historic Preservation Officer
Vermont Department of Transportation (VAOT)
Office of Environmental Review
133 State Street
Montpelier VT 05633-5001
Phone: (802) 828-3964
Scott.newman@state.vt.us

Kenneth Sikora, Environmental Programs Manager
Vermont Division, FHWA
P O Box 568
Montpelier, VT 05601-0568
Phone: (802) 828-4433
Kenneth.Sikora@fhwa.dot.gov

2. Maryland Programmatic Agreement for Minor Highway Projects

a. Summary

The State of Maryland executed their Programmatic Agreement for Minor Highway Projects on July 26, 1993. The PA was subsequently amended on February 26, 2001, to add additional categories of projects, and to reflect the revised ACHP regulations. The PA outlines a class of projects that are automatically exempted from Section 106 review and stipulates the process for review of classes of minor highway projects, defined as categorical exclusions in 23 CFR 771, which generally have no potential to effect historic properties. All other classes of projects follow the standard procedures outlined in 36 CFR Part 800.

The PA requires the employment of qualified cultural resource staff, to include individuals trained in history, archaeology, and architectural history, and outlines the procedures for Maryland State Highway Administration (SHA) Section 106 review (this includes determining the APE, reviewing site information, performing field inspections, conducting field surveys, and determining if the undertaking will result in no historic properties affected). The agreement document provides a means for SHA internal review, SHPO annual review, monitoring, amendment, termination, and dispute resolution and creates a process for public involvement and coordination with consulting parties.

The PA outlines the procedures for Section 106 review of minor highway projects or those that cover a limited area, generally occur within existing rights-of-way, do not include structural elements that will intrude on the visual landscape, and require little or no ground disturbance. SHA documents these types of projects on a standard form included in Appendix 2 of the PA. SHA is required to provide the MD SHPO with project documentation, who then has 15 days to respond. If there is no response from the SHPO, the Section 106 process is then complete.

Examples of minor highway projects include minor bridge rehabilitation; construction of bicycle and pedestrian lanes, paths, and facilities; improvements to existing rest areas and truck weigh stations; modernization of an existing highway; spot improvements; minor safety related drainage improvements; fencing installation; construction of small passenger shelters; noise barrier installation; and installation of lighting, guardrails, traffic signals, curbs, and sidewalks. The PA also has a caveat for adding other classes of minor actions in coordination with the MD SHPO.

For exempted projects (defined in the PA as "projects with no potential to cause effects"), the SHA documents its finding on a standard form attached as Appendix 1 to the PA. The MD SHPO is not involved in this process, but does receive a record of exempted projects in its annual report from SHA. Once an exempted project is recorded, no further action is required.

Eight categories of projects are exempted from review (the exemptions do not apply if these projects are part of larger, more extensive projects). Examples of exempted projects include ground cover landscaping activities; installation/repair or replacement of signs; in-kind replacement, reconstruction, or repair of lighting, guardrails, fencing, sidewalks; non-ground disturbing activities such as planning, training or education; repair or alteration of existing surfaces within the existing right-of-way; routine bridge maintenance; small bridge structure remedial activity; and routine cleaning and maintenance of drainage facilities.

b. Report from the Field

The PA was originally proposed by the MD SHPO who was burdened with the large number of extremely minor SHA projects that required their review. Since most road projects in Maryland involve routine maintenance, only a small percentage of overall projects ever included historic properties. However, these types of projects still needed to be reviewed following the standard steps and time frames required under Section 106. Thus, in order streamline the Section 106-review process, FHWA and the SHPO agreed to authorize the SHA to act on behalf of FHWA in conducting limited Section 106 review in-house. [2]

According to Dr. Charlie Hall, former SHA Archaeology Group Leader, the PA has been a huge success. Ibid Approximately 80 to 90 percent of SHA projects are now reviewed in-house thus allowing for quicker project implementation, and a reduced workload at the MD SHPO. In 2000, prior to the current revision, SHA reviewed 456 projects, of which 294 were coordinated with the SHPO. However 81 percent of these coordinated projects consisted of minor highway projects that were documented using the Appendix 2 form. Thus far, the revised PA has resulted in even less SHPO coordination and reduced project delay. Ibid

Hall credits a number of factors for the success of the PA. Over the years, the SHA has developed a strong, trusting relationship with the SHPO, and has maintained a staff of trained and experienced CRM professionals. Elizabeth Cole, of the Maryland SHPO, adds that quarterly meetings between the working level staffs of FHWA, DOT and SHPO have fostered open communication, and trust; factors that she directly relates to the success of this PA.[3]

c. Contacts

Donald Sparklin, Assistant Division Chief
Project Planning Division
Office of Planning and Preliminary Engineering
Maryland State Highway Administration
707 N. Calvert St.
Baltimore MD 21202
Phone: (410) 545-8564
E-mail: dsparklin@sha.state.md.us

Daniel W. Johnson
Environmental Program Manager
Maryland Division, FHWA
711 West 40th Street-Suite 220
Baltimore, MD 21211
Phone: (410) 962-4342 Ext. 145
Email: DanWJohnson@fhwa.dot.gov

3. Pennsylvania Programmatic Agreement for Minor Highway Projects

a. Summary

The Pennsylvania PA for Minor Highway Projects was executed on December 17, 1996, by the Pennsylvania Department of Transportation (PennDOT), the Federal Highway Administration (FHWA), the Pennsylvania State Historic Preservation Office (SHPO), and the Advisory Council on Historic Preservation (ACHP). The PA establishes the process for PennDOT to conduct in-house Section 106 review of minor highway projects and outlines a class of projects exempted from review.

The PA applies to Federal-Aid Projects defined as Categorical Exclusions (CEs)(Class II) under the National Environmental Policy Act (NEPA [23 CFR 771]). Projects that require either an Environmental Impact Statement (EIS)(Class I) or an Environmental Assessment (EA)(Class III) are excluded from the PA. Also excluded are projects that have been downgraded from EAs to CEs during the NEPA process, projects that have an Adverse Effect determination, and those that involve public controversy. The agreement document does not apply to State-funded projects or those covered under Section 106 through a USCOE 404 Permit. However, the Pennsylvania SHPO has informally agreed to allow PennDOT to process State-funded projects if they meet all the requirements of Federal-Aid projects. Projects that involve a National Historic Landmark or the Gettysburg National Battlefield, which is protected by a separate Federal law, also cannot be reviewed under the PA.

The PA stipulates that PennDOT maintain a staff of qualified professionals, comply with the public participation standards using the NEPA process as allowed under 36 CFR 800 and provide annual training for their CRM staff. It also establishes that PennDOT's comprehensive departmental cultural resources procedures will complement the PA and be appended to the agreement.[4] The PA includes provisions for CRM projects such as project re-evaluation, unanticipated discovery, and curation as well as PA review and monitoring, individual district compliance, dispute resolution, amendments, termination and a process for annual SHPO review. As a check and balance the FHWA PA division office also participates in process review of the PA.

Attached to the PA are Appendixes A-G consisting of Professional Qualification Standards (Appendix A); CRM Training Requirements (Appendix B); 23 CFR 771.15 and 23 CFR 771.7 (Appendix C); CEE Form (Appendix D) [5] ; Stream Order Classification (Appendix E); Cultural Resources Assessment Form (Appendix F); and a Criteria of Effect Table (Appendix G). The exact details of the PA are spelled out in the manual Operating Procedures, which is meant to accompany the PA. The manual includes a thorough explanation of each section within the PA, and examples of forms used to document in-house PennDOT Section 106 review.

Stipulations C and D are the two general categories of review established under the PA. Stipulation C projects are those that are unlikely to affect historic properties and are therefore exempted from review. Staff with limited CRM training may review these types of projects. Stipulation D projects, or those more likely to affect historic properties, must be reviewed by CRM professionals that meet the standards outlined in 36 CFR 61.

The PA includes two levels of Stipulation C categories of review. Stipulation C1 level projects are those that are exempted from review provided they are limited to the specific activity indicated, are not part of large undertakings, are located on existing transportation facilities, have no public controversy regarding historic preservation, and are classified as a "categorical exclusions." Examples of Stipulation C1 Projects include reconstruction of existing roadbeds (as long as the same kind of material or a similar modern replacement is used); rehabilitation of existing rest areas and truck stations; activities within the existing disturbed median; drainage improvements; and construction of bicycle/pedestrian facilities, including Rail-to-Trail projects (as long as activities are confined to previously disturbed areas).

Stipulation C2 projects include additional provisions to the Stipulations C1 list provided above. They cannot include properties that are 50 years or older, must not include any evidence (visual or otherwise documented) of archaeological sites within the APE, nor require more than 3-m of right-of-way when near a stream of rank 3 or greater. Examples of Stipulation C2 Projects include the rehabilitation/replacement of bridges on an existing alignment (for bridges less than 50 years old or not listed as National Register eligible in the Pennsylvania historic bridge survey); and widening less than one lane, shoulder additions, and minor changes in alignment. PennDOT documents Stipulations C projects and submits a project list to SHPO on a quarterly basis. No other SHPO notification is required.

Stipulation D projects can result in a finding of No Historic Properties Present or Affected (Stipulation D.2) or No Adverse Effect (Stipulation D.3). Stipulations D projects include projects not meeting the tests of Stipulation C.1 or C.2, as well the installation of noise barriers/noise reduction facilities; landscaping; and the construction of new parking, truck weigh stations or rest areas. Stipulations D.2 reviews are made by PennDOT CRM professionals (as defined in 36 CFR 61) and can include Phase I and Phase II surveys. Copies of all documentation for Stipulation D projects are sent to the Pennsylvania SHPO. The SHPO comment period for Stipulation D.2 Projects is 15 days, and 30 days for Stipulation D.3 determinations. Stipulation D.2 and D.3 projects conclude Section 106 consultation without SHPO response. Explicit concurrence is not needed.

b. Report from the Field

In the Spring 2000 edition of PAC (Pennsylvania Archaeological Council) Newsletter, Ira Beckerman, PennDOT Cultural Resources Leader, outlines the development of the PennDOT CRM Program and the drafting of the Pennsylvania PA for Minor Highway Projects. [6] e he He closely links the development of the PA with the evolution of PennDOT's in-house CRM program (PAC Newsletter, Vol. 22, pg. 3). The Pennsylvania Minor Projects PA was developed subsequent to the development and implementation of a flood PA executed in 1996 as a response to disastrous flooding in the State that year. As a direct result of the successful implementation of the flood PA, PennDOT began thinking about creating an expedited process for everyday use. Ibid

PennDOTs CRM program operates on a decentralized system composed of 11 districts and 5 regions. Each region includes at least one archaeologist and architectural historian responsible for project scoping, document review and for following the provisions of the Minor Highway Projects PA within each region. The professionals brought on board work closely with other District DOT professionals, including engineers, planners, and those involved in all stages of the development of transportation projects (PAC Newsletter, Vol. 22; page 4).

According to Beckerman, the Pennsylvania Minor Projects PA has resulted in considerable cost decreases for individual project documentation. Prior to the implementation of the PA, this process used to cost an average of $1,000 per project, but now only costs around $400. With up to 800-900 projects per year, that means annual savings of $480,000 to $540,000. Although more difficult to track, additional savings have also been made through reducing unnecessary studies and reduced duplication of effort between the DOT, SHPO, and consultants. Ibid

While the results of statewide PAs can be dramatic, Beckerman admits that the process of creating one is very difficult. For States seeking to create such agreement documents Beckerman asserts, "they will take much longer than anticipated--on average three times longer than your best estimate and not in less than 2 years." Having written both the Pennsylvania PA and an early draft of the Maryland PA, Beckerman is very familiar with this process. He explains that States cannot expect to copy PAs that have already been executed and gain full support from all of their signatories. Beckerman emphasizes that the Pennsylvania and Maryland PAs were each written within unique contexts with different players and regional considerations. This context is what creates both the inherent limitations and potential flexibility of each new PA. Ibid

c. Contacts

Ira Beckerman, Ph. D
PennDOT Cultural Resource Group Leader
Bureau of Environmental Quality Control
Department of Transportation
Commonwealth of Pennsylvania
P.O. Box 3790
Harrisburg, PA 17105-3790
Phone: (717) 772-0830
Email: Beckerm@dot.state.pa.us

Deborah Siciu-Smith
Environmental Protection Specialist
Pennsylvania Division, FHWA
228 Walnut Street, Room 536
Harrisburg, PA 17101-1720
Phone: (717) 221-3785
Email: Deborah.siciu.smith@fhwa.dot.gov

4. New Jersey Federal Aid Highway Programmatic Agreement

a. Summary

The New Jersey PA for the Federal-Aid Highway Program was executed in November 1996. Signatories to the PA include the Federal Highway Administration (FHWA), the New Jersey Department of Transportation (NJDOT), the New Jersey State Historic Preservation Office (SHPO), and the Advisory Council on Historic Preservation (ACHP). The PA outlines the procedures for FHWA to meet its responsibilities under Section 106 and 110 of the National Historic Preservation Act (NHPA) by authorizing NJDOT to conduct part of the Section 106-review process in house.

This PA lays out the process for Section 106 review by referencing specific sections of 36 CFR Part 800 for which NJDOT will be responsible. This makes for a concise document that explains both the process and responsibilities of NJDOT for Section 106 review. The implementation of the PA was contingent upon the NJDOT employment of qualified professional staff and consultants meeting the Secretary of Interior's Standards (48 FR 44738-9).

The PA stipulates that NJDOT, on behalf of FHWA, complete Section 106 review (as listed in 36 CFR 800.4 and 800.5) up to an adverse effect determination. NJDOT may make a determination of no adverse effect (36 CFR 800.8 [a]) in consultation with the SHPO and with the concurrence of FHWA. If SHPO consultation results in an adverse effect determination, responsibility for the Section 106 process reverts back to FHWA (36 CFR 800.5[e]).

The PA includes options for dispute resolution, monitoring, amendment, and termination, default, and need for revision based on any future Section 106 regulatory changes (note that the current PA was written before the recent Section 106 regulatory changes). It also includes a stipulation for FHWA notification under other specific circumstances, such as instances where a National Historic Landmark is involved or for emergency undertakings.

b. Report from the Field

Lauralee Rappleye-Marsett, Supervising Environmental Specialist at NJDOT, drafted the PA in 1996 when FHWA began talking about environmental streamlining. As a direct result of this discussion, both NJDOT and the NJ SHPO observed that a large number of DOT projects were minor in nature and rarely-if at all- involved historic properties or sites. Since the DOT already had a demonstrated record of success regarding cultural resources documentation and review, both agencies felt that there should be some way to streamline the environmental review process by eliminating redundancy of effort among all three agencies.

In creating the PA, Ms. Rappleye-Marsett wanted to establish a process for in-house Section 106 review that would be easily understood and not lost in lengthy legal jargon. The author explains that her attempt was "not to rewrite the Section 106 regulations, but merely to indicate the extent of DOT responsibility in this process." With an eye toward streamlining both the Section 106 process, and the document itself, Ms. Rappleye-Marsett created a document that meets those needs. She asserts that this simple PA has worked very well, with little room for misunderstanding.

The author notes that for New Jersey, the creation of short, activity specific agreement documents has worked best for them. This segmentation of responsibilities has simplified their streamlining process and makes the need for any future changes much easier.

Currently a revised Programmatic Agreements is underway that will reflect the most recent version of 36 CFR Part 800 regulations.

c. Contacts

Lauralee Rappleye-Marsett
Supervising Environmental Specialist
New Jersey Department of Transportation
1035 Parkway Avenue
PO Box 600
Trenton, NJ 08625-0600
Phone: (609) 530-2990
Email: lauraleerappleyemarsett@dot.state.nj.us

Amy Fox
Environmental Coordinator
New Jersey Division, FHWA
840 Bear Tavern Road, Suite 310
W Trenton, NJ 08628-1019
Phone: (609) 637-4238

5. Washington Statewide Federal Aid Highway Programmatic Agreement

a. Summary

The Washington PA for the Federal-Aid Highway Program was executed in June 2000. Signatories to the PA include the Federal Highway Administration (FHWA), the Washington Department of Transportation (WSDOT), the Advisory Council on Historic Preservation (ACHP) and the Washington State Historic Preservation Office (SHPO). The PA sets out the procedures for FHWA to meet its responsibilities under Section 106 and 110 of the National Historic Preservation Act (NHPA) by authorizing WSDOT to conduct Section 106 review in-house up to an Adverse Effect determination. This delegation of responsibilities does not pertain to tribal consultation, all of which is initiated by FHWA.

The PA stipulates that all DOT staff and consultants in the fields of archaeology, history, and architectural history meet the Secretary of Interior's Professional Qualifications. It includes provisions for annual review meetings with the SHPO, Tribes, and FHWA to discuss the effectiveness of the PA and, to discuss legislative changes, SHPO coordination and other relevant matters. The PA also outlines the procedures of ACHP and SHPO monitoring of the PA and includes provisions for amendment, modification, or termination.

The PA outlines 17 classes of projects (identified as A-Q) exempted from further Section 106 review. These exemptions provide that a project undertaking is limited to a specific activity, is not part of a larger project, or does not border a historic property or historic district. Examples of exempted projects include: work conducted within disturbed sections of extant medians and interchanges or between a highway and adjacent frontage road; replacement of culverts; installations of new lighting, railway crossing signs; and routine roadway, roadside, and drainage systems.

Projects that are not exempt from review (identified as anything not specified under exempt projects in the PA) follow the specific steps outlined in the PA for Section 106 review. The PA essentially allows the WSDOT to move forward with project determinations for No Effect or No Historic Properties Affected provided the SHPO and consulting parties agree. This last part is similar to the NJ PA, which simply makes references to the Section of 36 CFR Part 800 for which WSDOT has been given responsibility.

This process begins with WSDOT who, with input from Tribes, will first identify the area of potential effect (APE) for a specific undertaking. WSDOT will then ask FHWA to initiate consultation with tribes while WSDOT will conduct consultation with other relevant parties including the public and local governments.[7] WSDOT will then identify any historic properties within the APE, determine their eligibility for the National Register and consult with the SHPO and other consulting parties regarding this determination. WSDOT will send any documentation regarding this determination to SHPO, and all consulting parties, who must find consensus before the project can move ahead. SHPO has 30 days in which to respond to WSDOT's findings. If there is any disagreement between SHPO and WSDOT, the PA calls for further consultation in hopes of resolving the disagreement. For projects determined to have an Adverse Effect, FHWA will then proceed with the Section 106 process in accordance with 36 CFR 800.6.

The PA includes separate provisions for historic bridges. This includes WSDOT National Register eligibility determinations based on the Washington State Historic Bridge Inventory, and provisions (including documentation) for marketing some bridges for sale for categories of bridges specified in the PA. The PA also calls for the development of a book on historic bridges for the general public in lieu of documentation for specific categories of bridges subject to sale or replacement. The PA does not apply to classes of bridges that require a change in alignment to undisturbed locations or that are located in a historic district. Such undertaking follow the review procedures stipulated in 36 CFR 800.

b. Report from the Field

Allyson Brooks, Washington State Historic Preservation Officer, completed the first draft of the WS PA, in approximately two months. [8] The draft was then circulated among a number of individuals from FHWA, DOT, and SHPO whose comments were incorporated into a working draft. This entire process took approximately 6 months.

According to Sandie Turner, Cultural Resources/Contracts Manager of WSDOT, the PA has substantially helped in reducing the number of projects that go through the Section 106-review process. With the Categorical Exclusion provision of the PA, 50 percent of all projects now can move ahead without the standard Section 106 review. Although Turner has no firm numbers, she notes that this has saved both time and money for all three agencies involved (FHWA, DOT, and SHPO).

Turner explains that Washington State has a number of tribal concerns that many other States do not have. With more than 28 Federally recognized Tribes in the State of Washington alone, consultation can be a costly and time consuming process for the Tribes and state and federal agencies. With the PA in place, Tribes are not consulted about projects exempted from review such as the installation of traffic lights and signals, unless they are located near tribal land or are of special concern to the tribes (the Tribes receive information concerning all projects). This allows FHWA to consult on projects that are of interest to Tribes. Turner explains that the key to successful tribal consultation has always been open communication including keeping Tribes involved in project planning and asking them to communicate their concerns during the entire planning process. She notes that Washington State furthers this objective through an annual Tribal Transportation Summit and DOT training for Tribes and State agencies that incorporates the tribal perspective.

c. Contacts

Sandie Turner
Cultural Resources/Contracts Manager
Washington State Department of Transportation
Olympia, WA 98501
Phone: (360) 570-6637
Email: turners@wsdot.wa.gov

David A. Leighow
Technical Services Team Leader
Washington Division, FHWA
711 S. Capitol Way, Suite 501
Olympia, WA 98501
State Mail Stop: 40943
Phone: (360) 753-9486
Email: dave.leighow@fhwa.dot.gov

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C. Suggested Approaches for New PAs

The following is suggested for inclusion in new Statewide Section 106 PAs:

1. The PA should:

  • Reflect how the particular FHWA division office and State DOT actually conduct Section 106 review
  • Address coordination between Section 106 and other reviews
  • Not try to restate the regulations but simply cite the relevant sections that apply
  • Clearly state and assign responsibilities and be explicit about what the DOT will do in the review process
  • Mandate specific products or deliverables
  • Establish time frames for completion of the review process
  • Use 36 CFR 800.2(a)(1) and (3) to establish standards for contractors and their work
  • Establish procedures for addressing discoveries and emergencies
  • Encourage public education and interpretation
  • Consider creative approaches to mitigation (i.e. GIS modeling, partial mitigation)

2. Tribal Interface

  • Consult with Tribes while drafting the PA
  • Consider integrating traditional stories in archaeological interpretations
  • Undertakings that affect historic properties on tribal lands cannot be delegated

3. Tools for implementing the PA

  • Provide training in Section 106 for DOT employees and consultants
  • Draft practical tools such as standards and guidelines, historic preservation manuals, tribal consultation protocols, public outreach guidelines, environmental justice protocols etc.; these should be referenced in the PA

Keep in mind that a blanket adoption of existing PAs from other States will inaccurately reflect another State's resources and management practices. Existing statewide PAs are rarely stand-alone documents, but generally include a number of other complimentary manuals, and appendixes that may be hard to replicate in their entirety. States should also consider the need for future generations to clearly understand the exact procedures outlined in the agreement document. Unduly convoluted or unclear documents may work presently, but will do a disservice to new generations attempting to enact its provisions. Overall, PAs that are written clearly and succinctly will work the best.

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D. Conclusion

This summary provides a review of the Maryland, New Jersey Pennsylvania, Washington and Vermont Statewide Section 106 PAs. It has been drafted in order to help other States create such agreement documents by providing some background and context surrounding their development including some suggested approaches. Most importantly, it has suggested that States consider their own political milieu, historic preservation practices, mission statements, interagency relationships (SHPO/THPO, DOT and FHWA), and future needs prior to creating their own statewide Section 106 PA.

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[1] Scott Newman: Personal Communication 04/2001.

[2] Charlie Hall: Personal Communication 05/14/01

[3] Elizabeth Cole, Maryland State Historic Preservation Office: Personal Communication 05/14/01

[4] Document not completed as of 05/2001

[5] Form not completed as of 05/2001

[6] Ira Beckerman: Personal Communication 05/10/2001

[7] FHWA has recently authorized WSDOT to initiate consultation with Tribes; however, this does not amend the PA nor does it absolve FHWA of their government-to-government responsibility to the Tribes

[8] Allyson Brooks, WS SHPO., personal communication: 05/21/2001

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