State Section 106 Programmatic Agreement

PROGRAMMATIC AGREEMENT AMONG

THE FEDERAL HIGHWAY ADMINISTRATION,
UNITED STATES ARMY CORPS OF ENGINEERS, WILMINGTON DISTRICT, NORTH CAROLINA DEPARTMENT OF TRANSPORTATION,
ADVISORY COUNCIL ON HISTORIC PRESERVATION, AND
NORTH CAROLINA STATE HISTORIC PRESERVATION OFFICER FOR
THE TRANSPORTATION PROGRAM IN NORTH CAROLINA

WHEREAS, the Federal Highway Administration (FHWA) administers the Federal Aid Highway Program in North Carolina, authorized by 23 USC 101 et seq., through the North Carolina Department of Transportation (NCDOT) (23 USC 315);

WHEREAS, the Division Administrator, FHWA, is the “Agency Official” responsible for compliance with Section 106 of the National Historic Preservation Act (NHPA) of 1966, as amended (54 USC 300101 et seq.) and codified in its implementing regulations (36 CFR 800, as amended August 5, 2004) for Federal Aid Highway Programs;

WHEREAS, NCDOT administers federal-aid projects throughout the State of North Carolina as authorized by 23 USC 302;

WHEREAS, an undertaking means a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; and those requiring a Federal permit, license or approval (36 CFR 800.16(y));

WHEREAS, the U.S. Army Corps of Engineers, Wilmington District, (USACE) administers a Department of the Army permit program under the authority of the Rivers and Harbors Act of 1899, Section 10 (33 USC 401 and 403) and the Clean Water Act of 1973, Section 404 (33 USC 1344), hereafter referred to as “Permits” to which NCDOT projects may be subject;

WHEREAS, for state funded undertakings, the USACE Wilmington District Commander is the “Agency Official” responsible for ensuring that Permits comply with Section 106 of the NHPA (54 USC 306108) as amended and codified in its implementing regulations (36 CFR 800, as amended, August 5, 2004);

WHEREAS, USACE and FHWA, pursuant to Section 106 shall utilize this Programmatic Agreement (PA) for NCDOT undertakings that may cause effects on properties included in or eligible for inclusion in the National Register of Historic Places (historic properties);

WHEREAS, FHWA, USACE and NCDOT desire to streamline consultation for Section 106 of the NHPA for federally funded and/or authorized transportation undertakings in North Carolina that may affect historic properties;

WHEREAS, USACE and NCDOT desire to streamline consultation for Section 106 of the NHPA for undertakings that (1) are state funded that may affect historic properties and (2) require a Permit from USACE;

WHEREAS, USACE has participated in the consultation and has opted to be a signatory to this PA;

WHEREAS, NCDOT has participated in the consultation and has been invited to be a signatory to this PA;

WHEREAS, the Advisory Council on Historic Preservation (ACHP) has been consulted pursuant to 36 CFR 800.14(b), and the ACHP has opted to participate as a signatory to this PA;

WHEREAS, FHWA, USACE and NCDOT have consulted with the North Carolina State Historic Preservation Officer (SHPO), including the Office of State Archaeology (OSA), to develop and execute this PA pursuant to 36 CFR 800.14(b) to establish an efficient and effective program alternative for taking into account the effects of transportation undertakings on historic properties in North Carolina;

WHEREAS, FHWA and USACE agree that when FHWA funded and/or FHWA authorized transportation undertakings in North Carolina shall involve a permit from the USACE, the FHWA shall be the lead federal agency for the purposes of Section 106 compliance;

WHEREAS, FHWA, ACHP, NCDOT, and SHPO executed a PA for Administration of the Federal Aid Highway Program on March 20, 2000 (Federal Aid Highway PA) that established the expertise, cooperation, and processes upon which this PA is based;

WHEREAS, the 2000 PA is considered null and void and superseded by this PA;

WHEREAS, NCDOT has a staff of Cultural Resources (CR) Specialists and employs consultants, who meet the professional qualifications defined in the Secretary of the Interior’s Professional Qualifications Standards at 36 CFR 61 and 48 FR 44716 in the fields of archaeology, architectural history, or historical architecture, to carry out NCDOT’s historic preservation programs and responsibilities and are capable of completing many of the steps of the Section 106 review process on behalf of FHWA and USACE;

WHEREAS, this PA does not apply to undertakings administered by a sub-recipient of federal- aid highway funds, commonly referred to as locally-administered projects (LAP), nor to undertakings where the lead federal agency is the Federal Railroad Administration, Federal Aviation Administration, or Federal Transit Administration;

WHEREAS, the public has been invited to consult in the development of this PA through a Public Input website and social media accounts, and has taken any comments received into account;

WHEREAS, Certified Local Governments (CLGs) and state agencies have been invited to consult in the development of this PA through a Public Input website and social media accounts, and has taken any comments received into account;

WHEREAS, Tennessee Valley Authority (TVA), United States Forest Service (USFS), United States Fish & Wildlife Service (USFWS), United States Coast Guard (USCG), and National Park Service (NPS), may manage federal lands affected by or be responsible for issuing permits or licenses related to the construction of transportation undertakings by NCDOT, and were invited to consult in the development of and to be a concurring party to this PA;

WHEREAS, as of the date of this PA, the USFS has agreed to enter this PA as a concurring party;

WHEREAS, the Eastern Band of Cherokee Indians, the Cherokee Nation, the United Keetoowah Band of Cherokee Indians in Oklahoma, the Catawba Indian Nation, the Tuscarora Nation, the Monacan Indian Nation, and The Muscogee (Creek) Nation, were invited to consult in the development of and to be a concurring party to this PA;

WHEREAS, as of the date of this PA, none of the Tribes have agreed to enter this PA as a concurring party;

WHEREAS, any undertaking involving tribal lands as defined in 36 CFR 800.16(x) shall not be solely governed by this PA, but shall be reviewed by FHWA, USACE, and NCDOT in accordance with 36 CFR 800 and any applicable government-to-government agreement(s);

WHEREAS, the definitions contained in 36 CFR 800.16 shall be used in this PA;

NOW THEREFORE, FHWA, USACE, NCDOT, ACHP, and SHPO agree that transportation undertakings carried out by NCDOT with FHWA funding and/or requiring federal authorization shall be administered in accordance with the following stipulations to comply with Section 106 of NHPA.

STIPULATIONS

FHWA and USACE in coordination with NCDOT, shall ensure the following measures are carried out:

I. Purpose and Applicability

1. This PA sets forth the process by which FHWA and USACE, with the assistance of NCDOT, will meet their responsibilities under Section 106 of NHPA for transportation undertakings in North Carolina.
2. Federal agencies who recognize FHWA or USACE as the lead federal agency for an undertaking may fulfill their obligations under Section 106 of NHPA according to 36 CFR 800.2(a)(2), provided that FHWA, USACE, and NCDOT follow the requirements of this PA and the agency’s undertaking does not have the potential to cause effects to historic properties beyond those considered by FHWA, USACE, and NCDOT.

II. GUIDELINES, STANDARDS, AND REGULATIONS

Most recent guidelines, standards, and regulations relevant to this PA and its purposes are included in Attachment B.

III. ROLES AND RESPONSIBILITIES OF FHWA, USACE, NCDOT, ACHP, AND SHPO

1. Tribal Consultation
   1. FHWA and USACE shall retain ultimate responsibility for complying with all federal requirements pertaining to direct government-to-government consultation with Indian tribes.
   2. NCDOT shall maintain the tribal protocol shown in Attachment E. The protocol lists North Carolina counties in relation to the tribes that have an interest in those locations. The protocol outlines steps required to transmit project information to the tribes.
   3. NCDOT shall initiate consultation with federally recognized Indian tribes for undertakings that may affect tribal lands or properties to which a tribe ascribes traditional cultural and religious significance.
   4. Notwithstanding any other provision of this PA, FHWA and USACE shall honor the request of any federally recognized Indian tribe for direct government-to- government consultation regarding an undertaking covered by this PA.
   5. For undertakings that occur entirely within tribal lands, FHWA and USACE, in coordination with NCDOT, shall complete Section 106 review following 36 CFR 800 and any applicable government-to-government agreement(s) and shall be excluded from this PA.
2. Professional Qualifications
   1. NCDOT shall employ personnel and consultants trained and qualified in the fields of archaeology and historic architecture and/or architectural history whose duties shall include activities implementing this PA.
   2. These personnel and/or consultants shall meet the Secretary of the Interior’s Professional Qualifications Standards in the fields of archaeology, architectural history, or historical architecture.
   3. Actions completed by consultants prescribed by this PA that involve the identification, evaluation, recording, treatment, monitoring, or disposition of historic properties, or that involve the reporting or documentation of such actions in the form of reports, forms, or other records, shall be carried out by or under the direct supervision of a person or persons who meets the Secretary of the Interior’s Professional Qualifications Standards, as listed above.
   4. NCDOT and SHPO shall provide regular cultural resource management and Section 106 compliance training, as described in Attachment C, for personnel responsible within NCDOT for activities described in this PA.
   5. Consultants employed by NCDOT shall attend training workshops as agreed upon or described in Attachment C.
3. User's Manual
   1. NCDOT, in consultation with FHWA, USACE, ACHP, and SHPO, shall maintain a user’s manual to aid in the implementation of this PA.
   2. The user’s manual for this PA shall include detailed procedures for Section 106 reviews and be titled NCDOT’s 2020 Section 106 Programmatic Agreement Implementation Manual (Manual).
   3. The Manual shall be distributed throughout all NCDOT Divisions and Units to aid in their education and understanding of the terms and procedures encompassed by this PA.
4. Archaeological Materials Curation
   1. NCDOT shall follow the curation guidelines developed by OSA to ensure long- term preservation of the State’s archaeological collections and associated field records.
   2. OSA shall waive all fees for the curation of archaeological collections that result from NCDOT investigations, when those collections are documented, conserved, and submitted according to OSA’s guidelines.
5. Historic Properties Confidentiality
   1. In accordance with NCGS 70-18, NCDOT shall ensure that the specific locations of archaeological sites and information concerning the nature of archaeological resources are not placed in public documents or otherwise distributed to members of the public when the Department of Natural and Cultural Resources determines that the disclosures would create a risk of harm to such resources or to the site at which such resources are located.
   2. All parties to this PA acknowledge that information about historic properties, potential historic properties, or properties considered historic for purposes of this PA are subject to the provisions of Section 304 of NHPA. Section 304 requires FHWA and USACE to withhold from public disclosure information about the location, character, or ownership of a historic property when that disclosure may cause significant invasion of privacy; 2) risk harm to the historic property; or 3) impede the use of a traditional religious site by practitioners.
6. Annual Report and Monitoring
   1. NCDOT and SHPO shall regularly consult to review implementation of the terms of this PA. NCDOT shall maintain a list, sorted by Unit or Division, of all undertakings covered by this PA from July 1 through June 30. NCDOT shall provide all parties to this PA with copies of this list called the Annual Report on the Programmatic Agreement for Transportation Projects in North Carolina (Annual Report) by September 30 of each year.
   2. The content and format of the Annual Report shall be described in the Manual for this PA.
   3. FHWA, USACE, SHPO and other concurring parties (as requested) shall review the Annual Report and assess the implementation of this PA for the year under review.
   4. If deemed appropriate by any signatory to this PA, NCDOT shall notify all parties so that they may meet to discuss and resolve any issues raised as a result of the review.
   5. FHWA, USACE, ACHP, and SHPO may monitor undertakings carried out pursuant to this PA. NCDOT shall cooperate with these parties in carrying out their monitoring efforts.
   6. The lead federal agency(ies), who have signed this PA, are responsible for ensuring that its terms are fulfilled. Should a federal agency and/or SHPO determine that a Unit or Division of NCDOT is not consistently complying with the provisions of this PA, it shall notify NCDOT managers, who shall address the problem and report to all the signatories to this PA on the corrective monitoring and/or coaching undertaken.
7. ACHP Responsibilities
   1. The ACHP shall be notified of findings of adverse effect by the applicable lead federal agency and shall be invited to participate in resolving the adverse effect of an undertaking in accordance to 36 CFR 800.6(a)(1).
   2. The ACHP shall participate, in accordance to Stipulation XIII, in the resolution of disputes that may occur through the implementation of this PA.

IV. UNDERTAKINGS WITH LITTLE POTENTIAL TO CAUSE EFFECTS – EXEMPT ACTIVITIES

Undertakings meeting the conditions specified in Appendix A by their nature and definition, constitute activities that pose little potential to affect historic properties.

1. Transportation undertakings that comprise the activity(ies) listed in Appendix A and, in the best judgement of the NCDOT Project Manager, Project Engineer, or Division Environmental Staff, meet all the conditions outlined in Appendix A shall undergo no further Section 106 review.
2. Undertakings, which are certified as meeting the conditions and are exempt from further review must be documented by the NCDOT Project Manager, Project Engineer or Division Environmental Staff using the Cultural Resources Programmatic Agreement Screening Checklist for Section 106 (106 PA Checklist) (Attachment A).
   1. The 106 PA Checklist shall be completed for individual undertakings or a batch of similar undertakings that have little potential to cause effects, and no further analysis is required.
   2. A copy of the 106 PA Checklist shall be placed in the project file.
   3. The 106 PA Checklist shall be included within all Permit applications and made available to the parties of this PA, upon request.

V. REVIEW OF TRANSPORTATION UNDERTAKINGS

For those transportation undertakings that are not exempt from further review under terms of Stipulation IV, the review process shall be:

1. Initiate Section 106 Process – 36 CFR 800.3 - NCDOT shall initiate the Section 106 process on behalf of FHWA and/or USACE following the procedures in 36 CFR 800.3. NCDOT CR Specialists, including an archaeologist and architectural historian, shall:
   1. Define the undertaking which has been determined to have potential to affect historic property(ies).
   2. Identify and invite other consulting parties as identified in the NEPA process to participate in the consultation.
   3. Initiate consultation with appropriate Indian tribal governments, where applicable, in accordance with Tribal Protocol referenced in Stipulation III-A and Attachment E.
2. Identification of Historic Properties – 36 CFR 800.4
   1. Define APE: NCDOT CR Specialists shall determine and document the discipline specific archaeological and architectural Area of Potentials Effects (APE), as defined in 36 CFR 800.16(d).
   2. Based upon the best available background information gathered via a literature and map search, including Historic Preservation Office (HPO) and/or OSA files of identified, eligible, or National Register-listed historic properties, NCDOT CR Specialists shall assess the likelihood that unidentified historic properties exist in the discipline specific APE and shall determine the need for field survey.
      1. No Survey Required: Undertakings for which available information (including information provided by other consulting parties and/or Indian tribes) provides a reliable basis for reasonably predicting that no unidentified historic properties are in the APE(s), a NCDOT CR Specialist for archaeology and historic architecture shall each issue a separate recommendation of No Survey Required for the project using the No Survey Required Forms in Attachment D.
         1. The No Survey Required Forms shall be included as part of the appropriate NEPA project files. These documents satisfy the consultation requirements and result in a finding of No Historic Properties Affected in accordance with 36 CFR 800.4(d)(1).
         2. NCDOT shall provide copies of the completed No Survey Required Forms to SHPO annually.
         3. If historic properties are discovered after the NCDOT CR Specialist(s) issue the recommendation of No Survey Required but prior to commencement of construction, the project must be re-evaluated in accordance with Stipulation V.
         4. If historic properties are discovered after the NCDOT CR Specialist(s) issue the recommendation of No Survey Required and after the commencement of construction, the procedure described in Stipulation VI shall apply.
      2. No Historic Properties Affected: Undertakings for which available information (including information provided by other consulting parties and/or Indian tribes) provides a reliable basis for reasonably predicting the undertaking would unlikely cause effects on historic properties, assuming such historic properties were present, a NCDOT CR Specialist for archaeology and historic architecture can issue separate findings of No Historic Properties Affected for the project using the No Historic Properties Affected Forms in Attachment D.
         1. The No Historic Properties Affected Forms shall be included as part of the appropriate NEPA project files. These documents satisfy the consultation requirements and results in a finding of No Historic Properties Affected in accordance with 36 CFR 800.4(d)(1).
         2. NCDOT shall provide copies of the completed No Historic Properties Affected Forms to SHPO annually.
         3. If changes to the plans result in potential effects to historic properties after the NCDOT CR Specialist(s) issue the findings of No Historic Properties Affected but prior to commencement of construction, the project must be re-evaluated in accordance with Stipulation V.
         4. If historic properties are discovered after the NCDOT CR Specialist(s) issue the finding of No Historic Properties Affected and after the commencement of construction, the procedure described in Stipulation VI of this PA shall apply.
      3. Survey Required: Undertakings for which available information does not provide a reliable basis for reasonably predicting there are no unidentified historic properties in either the archaeological and/or architectural APE, a NCDOT CR Specialist shall issue a recommendation of Survey Required for the project using the discipline specific Survey Required Forms in Attachment D.
         li>NCDOT shall ensure a survey is conducted to identify historic properties in a manner consistent with the Manual and applicable guidelines, standards, and regulations listed in Attachment B.
         1. NCDOT shall provide copies of the completed Survey Required Forms to SHPO annually.
         2. Where potential historic properties are identified, a NCDOT CR Specialist shall evaluate their eligibility for listing in the National Register of Historic Places (NRHP) in accordance with the Secretary of the Interior’s Standards and Guidelines for Archeology and Historic Preservation and National Register Bulletin 15, How to Apply the National Register Criteria for Evaluation.
         3. The NCDOT CR Specialist shall incorporate information provided by consulting parties and Indian tribes, as appropriate, when evaluating a potential historic property’s eligibility.
         4. These eligibility evaluations and proposed boundaries shall be documented separately for archaeology and/or historic architecture/landscapes/districts, the content and layout of which shall be specified in the Manual and applicable guidelines, standards, and regulations listed in Attachment B.
      4. Archaeological Surveys:
         1. The No National Register of Historic Places Eligible or Listed Archaeological Sites Present Form shall be included as part of the appropriate NEPA project files as well as the Annual Report. This document satisfies the consultation requirements and results in a finding of No Historic Properties Affected in accordance with 36 CFR 800.4(d)(1).
         2. If changes to the plans result in potential effects to historic properties after the NCDOT CR Specialist(s) issue the findings of No Historic Properties Affected but prior to commencement of construction, the project must be re-evaluated in accordance with Stipulation V.
         3. If historic properties are discovered after the NCDOT CR Specialist(s) issues the finding of No Historic Properties Affected and after the commencement of construction, the procedure described in Stipulation VI shall apply.
         4. A NCDOT CR Archaeology Specialist shall provide OSA with the relevant site forms as completed and as a part of the Annual Report.
      5. Historic Architecture/Historic Landscape Surveys:
         1. Building Inventories: These reconnaissance-level surveys provide brief documentation and evaluations to identify properties in the APE and their potential eligibility for National Register listing. HPO Survey Site Forms are not required for this level of survey.
            1. Undertakings which have no National Register-listed or potentially eligible historic architecture/landscape sites in the APE, a NCDOT CR Architectural Historian Specialist shall document the result following the requirements in 36 CFR 800.11(d) using the No Historic Properties Present Form, in Attachment D.
            2. The No Historic Properties Present Form shall be included as part of the appropriate NEPA project files as well as the Annual Report. This document satisfies the consultation requirements and results in a finding of No Historic Properties Affected in accordance with 36 CFR 800.4(d)(1).
         2. Eligibility Evaluation Reports: These intensive-level surveys provide in- depth documentation to evaluate historic architecture and landscape properties in the APE for potential eligibility for National Register listing. HPO Survey Site forms are required for this level of survey.
            1. Where historic property boundaries have not previously been established, a NCDOT CR Architectural Historian Specialist shall identify recommended boundaries following standards set forth in National Register Bulletin 21: Defining Boundaries for National Register Properties.
            2. Eligibility Evaluation Reports and HPO Survey Site Forms shall be sent to SHPO for review and comment prior to the application of the criteria of effect outlined in Section C, below.
            3. If within thirty (30) days of receiving this notification, SHPO does not object or does not comment, NCDOT may proceed with the project.
            4. Undertakings with no National Register-listed or determined eligible historic architecture/landscape sites in the APE, a NCDOT CR Architectural Historian Specialist shall document the result following the requirements in 36 CFR 800.11(d) using the No Historic Properties Present Form, in Attachment D. This document satisfies the consultation requirements and results in a finding of No Historic Properties Affected in accordance with 36 CFR 800.4(d)(1).
         3. If changes to the plans result in potential effects to historic properties after the NCDOT CR Specialist(s) issue the findings of No Historic Properties Affected but prior to commencement of construction, the project must be re-evaluated in accordance with Stipulation V.
         4. If historic properties are discovered after the NCDOT CR Specialist(s) issue the finding of No Historic Properties Affected and after the commencement of construction, the procedure described in Stipulation VI shall apply.
      6. Effects Required: Undertakings for which available information provides a reliable basis for reasonably predicting that all of the historic properties have been identified and evaluated for National Register eligibility in the APE, or surveys completed to date have identified NRHP-eligible properties, and the effects need to be considered on the National Register-listed or eligible historic properties. A NCDOT CR Specialist shall issue discipline specific result of Effects Required for the project using the Effects Required Forms in Attachment D and follow the procedures outlined in Stipulation V, Section C, below.
3. Assessment of Effects
   For those undertakings in which there are National Register-listed or eligible historic properties in the APE, a NCDOT CR Specialist shall apply the Criteria of Adverse Effects to the historic property(ies) in accordance with 36 CFR 800.5 in separate processes for archaeology and/or historic architecture resources as outlined below. The result of each process shall be documented in writing using the corresponding effects forms provided in Attachment D. Copies of this documentation shall be provided to the NCDOT Project Manager and other consulting parties.
   1. Archaeology
      1. No Effect: A NCDOT CR Archaeology Specialist shall document the finding, following the requirements in 36 CFR 800.11(d) using the No National Register of Historic Places Eligible or Listed Archaeological Sites Affected Form, in Attachment D.
         1. The NCDOT CR Archaeology Specialist shall notify OSA, the NCDOT Project Manager, and other consulting parties of the finding recommendation for the undertaking using the No National Register of Historic Places Eligible or Listed Archaeological Sites Affected Form. This form shall be included as part of the appropriate NEPA project files as well as the Annual Report. This document satisfies the consultation requirements and results in a finding of No Historic Properties Affected in accordance with 36 CFR 800.4(d)(1).
         2. If within thirty (30) days of receiving this notification, OSA or another consulting party does not object or does not comment, NCDOT may proceed with the project. If OSA or another consulting party objects to NCDOT’s finding, then the procedures in Stipulation XIII shall be followed.
      2. No Adverse Effect: Undertakings which have no National Register-listed or eligible archaeological sites adversely affected, a NCDOT CR Archaeology Specialist shall document the finding, following the requirements in 36 CFR 800.11(d) using the No National Register of Historic Places Eligible or Listed Archaeological Sites Adversely Affected Form, in Attachment D.
         1. The NCDOT CR Archaeology Specialist shall notify OSA, the NCDOT Project Manager, and other consulting parties of the No National Register of Historic Places Eligible or Listed Archaeological Sites Adversely Affected finding for the project using the No National Register of Historic Places Eligible or Listed Archaeological Sites Adversely Affected Form. This form shall be included as part of the appropriate NEPA project files as well as the Annual Report.
         2. If within thirty (30) days of receiving this notification, OSA or another consulting party does not object or does not comment, NCDOT may proceed with the project. If OSA or another consulting party objects to NCDOT’s finding, then the procedures in Stipulation XIII shall be followed.
      3. Adverse Effect: Undertakings which have an adverse effect to National Register-listed or eligible archaeological sites, NCDOT CR Archaeology Specialists shall document the finding and notify the OSA and other consulting parties of the finding of adverse effect by forwarding the Archaeological Adverse Effect Determination Form in Attachment D.
         1. The Archaeological Adverse Effect Determination Form shall be included as part of the appropriate NEPA project files.
         2. The NCDOT CR Archaeology Specialist(s) shall meet with OSA staff, consulting parties, the lead federal agency, and project submitter to discuss the adverse effect of the proposed project on the archaeological site(s).
         3. If OSA or another consulting party proposes conditions or changes to the project that would result in a determination of No Historic Properties Affected or No Adverse Effect and NCDOT agrees to implement the conditions or changes, the NCDOT CR Archaeology Specialist shall document them on the No National Register of Historic Places Eligible or Listed Archaeological Sites Affected Form or No National Register of Historic Places Eligible or Listed Archaeological Sites Adversely Affected Form, and no further consultation shall be necessary.
         4. Any conditions or changes to the undertaking agreed to by NCDOT resulting in a determination of No Historic Properties Affected or No Adverse Effect shall be included as part of the NEPA commitments documentation.
         5. If SHPO or another consulting party objects to NCDOT’s finding of No Historic Properties Affected or No Adverse Effect they shall indicate the reasons for non-concurrence and shall consult further to resolve this matter, either by identifying project alternatives that may result in the
   2. Historic Architecture:
      1. Effects Consultations: The NCDOT CR Historic Architecture Specialist shall meet with SHPO staff, lead federal agency, and NCDOT Project Manager to discuss the effects of the proposed undertaking on the historic property(ies).
         1. The National Register of Historic Places Eligible or Listed Historic Properties Effects Determination Form in Attachment D shall document the application of the criteria of adverse effect and shall contain signatures from a NCDOT CR Specialist, SHPO staff, and federal agency with jurisdiction.
         2. If SHPO or another consulting party proposes conditions or changes to the project that would result in a determination of No Historic Properties Affected or No Adverse Effect, and NCDOT agrees to implement the conditions or changes, NCDOT shall document them on the National Register of Historic Places Eligible or Listed Historic Properties Effects Determination Form, and no further consultation shall be necessary.
         3. Any conditions or changes to the project agreed to by NCDOT resulting in a determination of No Historic Properties Affected or No Adverse Effect shall be included in the appropriate NEPA project files.
         4. If SHPO or another consulting party objects to NCDOT’s finding of No Historic Properties Affected or No Adverse Effect, they shall indicate the reasons for non-concurrence and shall consult further to resolve this matter, either by identifying project alternatives that may result in the undertaking having no adverse effect on historic properties or proceeding in accordance with Stipulation XIII.
4. Resolution of Adverse Effects – 36 CFR 800.6
   For projects that have an Adverse Effect on historic properties, NCDOT shall assist the lead federal agency in meeting its 36 CFR 800.6 responsibilities by undertaking the following steps:
   1. NCDOT CR Specialists shall continue consultation with SHPO, lead federal agency, and other consulting parties to develop and evaluate alternatives or modifications to the undertaking that could avoid, minimize, or mitigate adverse effects on historic properties.
   2. If the adverse effect cannot be avoided, the NCDOT CR Specialists shall prepare a draft Finding of Adverse Effect for the lead federal agency so that it may notify ACHP of the adverse effect finding in accordance with 36 CFR 800.11(e). Both the NCDOT CR Specialists for archaeology and historic architecture shall contribute to the preparation of this document.
   3. The lead federal agency shall provide the documentation specified in 36 CFR 800.11(e) to all consulting parties, subject to the confidentiality provisions of 36 CFR 800.11(c), and NCDOT CR Specialists, on behalf of the federal agency shall also make this information available to the public.
   4. NCDOT CR Specialists shall work with SHPO, the lead federal agency, and other consulting parties to negotiate terms of a Memorandum of Agreement (MOA) or a project-specific Programmatic Agreement (PA).
5. Project Re-evaluation
   1. At any time, if an undertaking changes in the lead federal agency designation, scope, funding, or APE, the NCDOT CR Specialist for archaeology and historic architecture shall re-assess the previous findings issued by their respective specialties to determine if the findings remain valid or if additional survey or effects assessment is required. All determinations shall be provided to the new lead federal agency for review and comment.
   2. Should SHPO or a member of the public provide new information regarding an undertaking that would alter the re-evaluation determination made above, NCDOT, SHPO, and consulting parties shall consult pursuant to 36 CFR 800.4 -.6 and 800.13. Such information shall be provided to NCDOT in a timely manner.
   3. Additional Section 106 consultation shall not be required if less than 10 years have passed since the full project survey for historic properties, not including archaeological resources, was completed and concurred with by SHPO, or Right of Way (ROW) has been authorized.

VI. POST-REVIEW DISCOVERIES

1. Planning for Subsequent Discoveries
   When NCDOT’s identification efforts indicate that historic properties are likely to be discovered during implementation of an undertaking, NCDOT shall include in any environmental document, contract, and specifications a plan for discovery of such properties. Implementation of the plan as originally proposed or modified as necessary owing to the nature and extent of the properties discovered, shall be in accordance with 36 CFR 800.4-6.
2. Late Discoveries
   1. If previously unidentified archaeological or historic properties, or unanticipated effects, are discovered after NCDOT has completed its review under this PA and the project is under construction, that portion of the undertaking shall stop immediately.
   2. No further construction in the area of discovery shall proceed until the requirements of 36 CFR 800.13 have been satisfied, including consultation with tribes that may attach traditional cultural and religious significance to the discovered property.
   3. NCDOT shall consult with SHPO, lead federal agency, and tribes, as appropriate, to record, document, and evaluate NRHP eligibility of the property and the undertaking’s effects on the property, and to design a plan for avoiding, minimizing, or mitigating adverse effects on the eligible property.
   4. If neither SHPO, lead federal agency nor a tribe files an objection within 72 hours of NCDOT’s plan for addressing the discovery, NCDOT may carry out the requirements of 36 CFR 800.13, and ACHP does not need to be notified.

VII. IDENTIFICATION AND TREATMENT OF HUMAN REMAINS

1. In the event that human remains are identified prior to, during, or after an undertaking’s construction, NCDOT shall develop a treatment plan in consultation with FHWA, USACE, and SHPO. If it is determined that the human remains are associated with a Native American occupation, FHWA, USACE, and NCDOT shall consult with the tribes prior to the development or execution of a treatment plan.
2. All work conducted on human remains and abandoned cemeteries shall comply with NCGS Chapters 65 and 70.

VIII. HISTORIC BRIDGES

NCDOT shall use the findings of the Historic Bridge Inventory (NCDOT, 2004), or any updates thereof, to determine the National Register eligibility of bridges.

IX. EMERGENCY SITUATIONS

For the purposes of this PA, emergencies are defined as occurrences that require emergency highway system and facility repairs that are necessary to 1) protect the life, safety, or health of the public; 2) minimize the extent of damage to the highway system and facilities; 3) protect remaining highway facilities; or 4) restore essential traffic. The following stipulations apply to emergency situations:

1. Repairs to address emergency situations as defined above can occur regardless of funding category and permit requirements, and regardless of declarations made by federal, state, or local agencies.
2. If the emergency repair action could affect historic properties, NCDOT’s cultural resource staff shall notify FHWA, USACE, and SHPO via email, and the Tribes by the acceptable methods noted in the Tribal Protocol (Attachment E) prior to any work taking place. The SHPO and any tribe that may attach religious and cultural significance to historic properties likely to be affected shall have 72 hours to respond. If no response is received within 72 hours, repair work shall proceed.
3. For emergency actions where the repair must be made within the first thirty (30) days of the occurrence of the event that caused the emergency or the declaration of the emergency by an appropriate authority, the processing of environmental documentation shall happen concurrently or after the fact. In these cases, NCDOT shall comply with the procedures in Stipulations IV and V, as appropriate, of this PA to the extent possible, but the reviews shall likely be conducted after the emergency work is completed.
4. For emergency actions taking longer than thirty (30) days for repair, NCDOT shall comply with the procedures in Stipulation IV and V, as appropriate, of this PA.
5. Written notification of an emergency action shall be provided to SHPO and lead federal agencies. The notice shall be clearly and prominently marked as an emergency notification and shall include an explanation of how the action meets the requirements for emergency as defined herein. The notice shall also include a brief description of the eligibility and/or significance of the resource(s) involved, the nature, effect, and anticipated effect of the emergency action on the resource(s), and the anticipated time frame available for comment.

X. COOPERATION AND COMMUNICATION

NCDOT and SHPO shall continue to share information developed or generated by each agency related to the identification, evaluation, management, and treatment of North Carolina’s cultural resources.

XI. AMENDMENT

1. Any of the signatories of this PA may request that it be amended, whereupon the parties shall consult to consider such an amendment. An amendment to the PA shall go into effect upon the written concurrence of FHWA, USACE, NCDOT, ACHP, and SHPO.
2. The Manual, and Attachment C (Cultural Resources Training Requirement), Attachment A (Cultural Resources Programmatic Agreement Screening Checklist for Section 106), Attachment D(PA Forms), and Attachment E(Tribal Coordination Protocol) may be revised by NCDOT, on its own behalf or on behalf of another signatory. NCDOT shall notify the signatories of the intent to modify the current manual or attachment(s) and shall provide a draft of the updated manual or attachment(s) to all signatory parties for review. If no other signatory objects in writing within thirty (30) days of receipt of the proposed modification, NCDOT shall date and sign the Manual or attachment(s) and provide a copy of the modified documents to the other signatories; such modification shall go into effect on the date NCDOT transmits the modification to the signatories.
3. Any of the signatories of this PA may request that Appendix A (Exempt Activities Under Section 106) be revised, whereupon the parties shall consult to consider such a modification. The revision to Appendix A shall go into effect upon the written concurrence of FHWA, USACE, NCDOT, ACHP, and SHPO.
4. If a party invited to concur in this PA has not accepted by the time it is filed with ACHP, they may become a concurring party for the duration of this PA upon the written concurrence of the signatories. Such action shall require an amendment to this PA.

XII. TERMINATION

Any signatory of this PA may terminate it by providing written notice of thirty (30) calendar days to the other parties, provided that the parties shall consult during the period prior to termination to seek agreement on amendments and other actions that would avoid termination. In the event of termination, FHWA and USACE shall comply with 36 CFR 800 with regard to individual undertakings covered by this PA.

XIII. DISPUTE RESOLUTION

1. Should SHPO or another consulting party on an individual undertaking subject to review under this PA, object within thirty (30) days to any plans or documentation provided for review pursuant to this PA, the federal agency with jurisdiction shall consult with the objecting party(ies) to resolve the objection. If the federal agency determines that the objection cannot be resolved, it shall forward all documentation relevant to the dispute to ACHP. Within thirty (30) days after receipt of all pertinent documentation, ACHP shall either:
   1. Provide the lead federal agency with recommendations which the federal agency shall take into account in reaching a final decision regarding the dispute, or
   2. Notify the federal agency that it shall comment pursuant to 36 CFR 800.7(c) and proceed to comment. Any ACHP comment provided in response to such a request shall be taken into account by the federal agency in accordance with 36 CFR 800.7(c)(4) with reference to the subject of the dispute.
   Any recommendation or comment provided by ACHP shall be understood to pertain only to the subject of the dispute and FHWA’s and/or USACE’s responsibility to carry out all other actions under this PA that are not the subject of the dispute and shall remain unchanged.
2. Any member of the public, any agency or organization may request ACHP review of Section 106 compliance for an individual undertaking in accordance with 36 CFR 800.9(a).

XIV. DURATION

This PA shall remain in effect for a period of five (5) years after the date it takes effect (the date the last party signs), unless it is terminated prior to that time pursuant to Stipulation XII. No later than ninety (90) days prior to the conclusion of the five (5) year period, NCDOT shall notify all parties in writing. If there are no objections from the signatory parties, the term of this PA shall automatically be extended for an additional five (5) years up to a limit of ten (10) years. If any party objects to extending the PA, or proposes amendments, NCDOT shall consult with the parties to consider amendments or other actions to avoid termination. The ninety (90) day notification requirement in this Stipulation may be waived by the parties.

PROGRAMMATIC AGREEMENT AMONG
THE FEDERAL HIGHWAY ADMINISTRATION,
UNITED STATES ARMY CORPS OF ENGINEERS, WILMINGTON DISTRICT,
NORTH CAROLINA DEPARTMENT OF TRANSPORTATION,
ADVISORY COUNCIL ON HISTORIC PRESERVATION AND
NORTH CAROLINA STATE HISTORIC PRESERVATION OFFICER FOR
THE TRANSPORTATION PROGRAM IN NORTH CAROLINA

SIGNATORIES

Federal Highway Administration

John F. Sullivan, III, P.E
Division Administrator
12/10/2020

U.S. Army Corps of Engineers, Wilmington District

Benjamin A. Bennett
Colonel, US Army
District Commander
12/8/2020

State Historic Preservation Office

Kevin Cherry, Ph.D.
North Carolina State Historic Preservation Officer 12/8/2020

Advisory Council on Historic Preservation

Aimee K. Jorjani
Chairman
12/21/2020

North Carolina Department of Transportation

Christopher M. Werner, PE
Director of Technical Services
12/10/2020

CONCUR:

United State Forest Service
Forest Supervisor
12/15/2020

APPENDIX A

EXEMPT ACTIVITIES UNDER SECTION 106

The Programmatic Agreement (PA) applies to all FHWA funded and/or authorized transportation undertakings administered directly by NCDOT in North Carolina, excluding locally-administered projects (LAP). The PA applies to NCDOT undertakings that require a Department of Army Permit. The PA does not apply to undertakings where the lead federal agency is the Federal Railroad Administration, Federal Aviation Administration, or Federal Transit Administration. Any undertaking involving tribal lands as defined in 36 CFR 800.16(x) shall not be solely governed by this PA, but shall be reviewed by the lead federal agency and NCDOT in accordance with 36 CFR 800 and any applicable government-to-government agreement(s).

Per Stipulation IV of the Agreement, Undertakings with Little Potential to Cause Effects – Exempt Activities, NCDOT Project Managers, Project Engineers or Division Environmental Staff shall utilize their best judgment to certify that the undertaking(s) meet all the conditions listed below and document internally by utilizing the 106 PA Checklist (Attachment A). The completion of the 106 PA Checklist will indicate if the undertaking(s) is subject to further Section 106 review or if the undertaking(s) is exempt from further review. The 106 PA Checklist (Attachment A) shall be retained in the project file.

Conditions

1. Webservices (https://www.ncdcr.gov/about/history/division-historical-resources/gis- maps-and-data) should be used to determine if the undertaking is within or adjacent to a Historic Property, classified herein as NRHP Eligible or Listed Buildings, Districts, Objects, Sites, or Structures. Please note that webservices only applies to above ground resources and not archaeological resources.
2. No activity can involve the acquisition of additional right-of-way (ROW) or easements (activities must be restricted to existing disturbed ROW and/or permanent easements). Right of Entry is exempt as long as clearing, grubbing, or ground disturbance does not occur.
3. If an activity is not listed below or there are questions regarding the activities, the Project Manager, Project Engineer or Division Environmental Staff may contact the Cultural Resources Group within the Environmental Analysis Unit, or contact the lead federal agency prior to submitting the project for further historic preservation review.
4. No activity can be a subset of a larger activity.
5. No new earthwork activity on federal property or federally granted easement.

Section A: Bridge Repairs/Bridge Maintenance* on Interstates, US Highways, and NC State Maintained Routes

*Activities permissible on historic/non-historic bridges unless noted in the Exceptions.

Activities limited to existing disturbed right of way.

No.	Activity	Description	Exceptions
1	Steel bridge painting	Reapplication of paint for steel bridge structures H-piling, metal shell piling, and steel sway bracing	Historic bridges
2	Pile encasement for steel bridges	Reinforcement of piles with concrete sheaths including: Addition of concrete encasement approximately 6 in in diameter Placement of temporary fill for dewatering activities.
3	Hydro-demolition of concrete bridge decks
4	Full deck replacement
5	Replacement of edge beams	Concrete stiffening member placed transversely at the end of a span	Historic bridges
6	Installation of chain link safety fencing	Addition of brackets and fence posts attached to the bridge with the fencing stretched atop the bridge railing	Historic bridges Within or adjacent to Historic Properties
7	Repair/replace portions of approach slabs & bridge deck	Includes the following activities: Overlay with permanent asphalt Fill voids with flowable fill
8	Post tension duct repair/internal post- tensioning	Steel strands passed through ducts formed in the concrete then grouted in place
9	Repair/replace co- polymer overlay on deck	Replaced with conductive polymer overlay system to protect concrete bridge deck and improve friction
10	Reset bearings	Strengthening bearings by jacking bridge less than 1inch and replacing or repairing
11	Clean drainage scuppers/drain pipes
12	Vegetation Removal at Bridges	Includes the following: Hand cutting vegetation around bridge, including the substructure to allow access by bridge inspection team Typically cut 10-20ft from either side of bridge structure
13	Epoxy injection repair of all concrete members (i.e. decks, beams, caps, columns, etc.)
14	Replacement of existing bridge fender structures by driving piles	Involves cutting the existing fenders to 2ft below the mud line for removal and installing new fenders in close proximity to the original location
15	Use of temporary load transfer system (“jumper bridge”)	Facilitates equipment access, typically over culverts, and is restricted to the existing roadway
16	Installation of sway braces	Braces used for H-pile bents where the unbraced length of piles exceeds 10 feet
17	Installation of carbon fiber reinforcement or post-tensioning design for the substructure/caps	Bridge Strengthening technique	Historic bridges
18	Heat straightening and/or in-kind replacement of damaged steel beams
19	Repair/replace existing box girder drainage system	Drainage system found on larger bridges. Includes repair of internal PVC drainage system within the bridge structure
20	Bridge Jacking	Includes the following activities: Increases vertical clearance by elevating the bridge through use of bearings Approaches are modified, as needed, within existing roadway	Historic bridges Activities restricted to existing roadway and bridge embankment, with no shifts in alignment of the approaches
21	Scour Repair: Repair undermined abutment caps	Fills voids with flowable fill
22	Scour Repair: Replacement of floor beams	Includes the following activities: Removal of concrete and rebar and the subsequent setting of Pre-stressed concrete or steel beams Placing of framework, rebar, and concrete	Historic bridges
23	Scour Repair: Replacement of rip rap or fill	Includes the following activities: In-kind replacement over existing materials at bridge bents and/or abutments as a result of wash out If existing rip-rap is fully washed away, filter fabric is applied to existing grade before addition of replacement rip-rap or fill
24	Repair/replace bridge headers, voids, end & back walls, concrete bent caps, bridge/pot bearings	Activities confined to the bridge structure itself
25	Repair/replace bridge expansion joints
26	Abutment Slope Repair	Repair and repave existing concrete abutments in-kind	abutment extension or footprint increases
27	Installation of Crutch or Helper Bents		Historic bridges

Section B: Pavement Resurfacing/Shoulder Rehabilitation and Guardrail/Cable/Median Barriers on Interstates, US Highways, and NC State Maintained Routes

*Activities permissible on historic/non-historic bridges unless noted in the Exceptions.

Activities limited to existing disturbed right of way.

No.	Activity	Description	Exceptions
1	Roadway resurfacing and/or rehabilitation	Includes the following activities for asphalt roadways: Overlay Milling Crack Repair Chip Seal (AST/BST) Patching Resurfacing, including full depth replacement Includes the following activities for concrete roadways: Grinding Grooving Pavement rehabilitation Spall repair
2	Shoulder/Median work	Includes the following activities: Shoulder building through the addition of pavement to existing shoulder, within toe- of-slope Typically associated with resurfacing or construction of turn lanes, bikes lanes, medians, etc. May also include repair of roadway edge line Equipment confined to existing roadway and shoulder All activities in existing median including median barrier Shoulder clipping/pulling
3	Guardrail Installation	Installation of new, or rehabilitation of existing, guardrail and guardrail anchors within existing disturbed right of way	Historic bridges
4	Median Crossovers	Includes the following activities: Installation of, or upgrade to, median crossovers on divided highways, to include the addition of turn lanes Includes grading and/or fill within median and addition of paved surface and associated striping
5	Cable Barriers	Includes the following activities: Installation of new, or rehabilitation of existing, cable barriers within existing roadway toe-of-slope. Includes concrete foundation, breakaway post, and cable.

Section C: Utilities/Signage/Traffic Signals on Interstates, US Highways, and NC State Maintained Routes

*Activities permissible on historic/non-historic bridges unless noted in the Exceptions.

Activities limited to existing disturbed right of way.

No.	Activity	Description	Exceptions
1	Installation and in-kind replacement/relocation of existing utility poles and underground utilities	Utility markers cannot be within 20 feet of significant element of or access to a historic property.
2	New Signage	Includes NC DOT Sign Types A, B, D, E and F
3	Installation of Dynamic Message Signs	Includes the following activities: Installation of concrete footer to support sign pole or truss structure Installation of pull boxes, cabinets, and conduit	Within or adjacent to historic properties
4	Pavement markings	Includes installation of the following: Rumble strips, chevrons, stop bars, and other pavement markings (raised, reflective, or otherwise) Additional or replacement roadway striping
5	New advance warning signs	Installation of flashing lights as you approach an intersection
6	Directional underground boring
7	Installation of Intelligent Transportation Systems (ITS) equipment to existing poles	Addition of ITS components (cameras, wireless devices, signs, cabinets, etc.) to an existing pole. Connected to existing pull box and conduit. Applicable to all NCDOT maintained routes	Installation of new stand-alone cabinets within or adjacent to historic properties
8	Upgrade existing traffic signals and city signal systems	Involves the installation or replacement of traffic signals, poles, and/or signals cabinets	Installation of new stand-alone cabinets within or adjacent to historic properties
9	Installation of new traffic signals		Within or adjacent to historic properties
10	Installation and replacement of Pedestrian Poles and Pedestrian Signals	Involves the installation or replacement of signal heads and/or push button stations	Installation within or adjacent to historic properties

Section D: Specific Maintenance/Upgrade Activities

*Activities permissible on historic/non-historic bridges unless noted in the Exceptions.

Activities limited to existing disturbed right of way.

No.	Activity	Description	Exceptions
1	Landscaping	Includes the following activities: Shallow grading, tilling, and planting. Grading and tilling, if needed, are used to smooth surface and/or bring in soil prior to planting Mowing Seeding	Landscaping within or adjacent to historic properties
2	Right-of-way Reclamation	Includes the following activities: Removal of vegetation which has grown since original construction or reconstruction Consists of cutting back existing vegetation within the clear zone May include chemical treatment or grinding of stump to prevent regrowth	Within or adjacent to historic properties
3	Replacement of existing lighting	In-kind replacement of existing lighting within right-of-way or at underpasses. In-kind lighting is defined as being of similar height, material, and location.
4	Replacement of existing fencing	In-kind replacement of existing fencing within right of way. In kind is defined as being of similar height, material and location
5	Ramp and intersection improvements	Consists of in-place replacement or upgrading of ramps and the addition of ramp turn lanes Installation of ramp meters

Section E: Other Maintenance/Upgrade Activities

*Activities permissible on historic/non-historic bridges unless noted in the Exceptions.

Activities limited to existing disturbed right of way.

No.	Activity	Description	Exceptions
1	Minor Drainage Improvements	Includes, but not limited to the following: Installation, replacement or removal of culverts and headwalls Installation, replacement and extensions of pipes Addition of pipe end sections	Installation and replacement of headwalls on USFS property
2	Routine cleaning, maintenance, and repair of existing drainage stormwater management, and water quality facilities and devices
3	Construction or repair of erosion control and protection measures	Includes, but not limited to the following: Slope stabilization Slide repair Rip Rap Retaining walls Streambank Stabilization
4	Correcting substandard roadway geometrics and intersections		Within or adjacent to historic properties
5	Modernization of an existing transportation facility by widening equal to or less than a travel lane	Includes, but not limited to the following: Shoulder additions Bridge approaches Turn lanes
6	Construction or repair of existing sidewalks, bicycle lanes, and multi-use paths		Within or adjacent to historic properties
7	Disposal of excess properties		Structures more than 45 years of age Within or adjacent to historic properties
8	Preliminary Engineering Activities	Activities which do not involve or lead directly to construction (program activities), such as planning and research activities; engineering to define the elements of a proposed action or alternatives so that social, economic, and environmental effects can be assessed; and Federal-aid system revisions which establish classes of highways on the Federal-aid highway system [23CFR 771.117(c)(1)]
9	Railroad crossing rehabilitation	Includes installation of the following: Bells, lights, gates Pavement marking LED upgrades Paving of unpaved approaches Does not include modifications to the railroad alignment or grade	Modifications to the railroad alignment or grade
10	Stormwater Retrofits	Construction of Stormwater BMP’s into existing roadways and facilities	Within or adjacent to historic properties

Section F: ADA Upgrades

*Activities permissible on historic/non-historic bridges unless noted in the Exceptions.

Activities limited to existing disturbed right of way.

No.	Activity	Description	Exceptions
1	Installation of ADA curbcuts on existing sidewalks		Granite curbs within or adjacent to historic properties
2	Installation of ADA ramps to existing facilities		Within or adjacent to historic properties

ATTACHMENT A

Cultural Resources Programmatic Agreement Screening Checklist for Section 106

Project TIP:	FA:	WBS:
Project Name: Project Description: Funding Source: Permits Anticipated:		County:   Lead Federal Agency:

Instructions:
NCDOT Project Managers, Project Engineers, or the Division Environmental Staff shall complete the following checklist based upon knowledge of the project site and adjacent parcels. Webservices (https://www.ncdcr.gov/about/history/division-historical-resources/gis-maps-and-data) should be reviewed for NRHP Eligible or Listed Buildings, Districts, Objects, Sites, or Structures. Before checking “Unable to Determine”, efforts should be made to acquire any available information. If the answer to any question is “Yes” or “Unable to Determine”, the undertaking is subject to further historic preservation review by NCDOT Cultural Resources staff. If answers to all the questions are “No”, the undertaking will be considered to have Little Potential to Cause Effects

• Exempt Activities and excluded from further historic preservation review, until differing information is discovered. Please reference “Appendix A Exempt Activities Under Section 106” of the Programmatic Agreement for Transportation Program in North Carolina prior to completion.

	Yes	No	Unable to Determine
A. Would this activity have the potential to cause effects on historic properties, assuming historic properties are present? See list in Appendix A.
B. Is this project directly related to other actions with individually insignificant, but cumulatively significant environmental effects?
C. Are you aware of any concerns raised by the owner of a historic property or public controversy for this undertaking?
D. Locations of cemeteries have been found on the webservices? (https://www.ncdcr.gov/about/history/division-historical-resources/gis-maps-and-data- content is no longer available.)

By my signature, I certify that I have completed a site visit or am familiar with the specifics of the project and to the best of my knowledge answers to the questions above are correct. I also understand that no further environmental analysis is required at this time, as all of the answers are “No”.

 
Name (print)                                               Signature                                            Date

ATTACHMENT B

Guidelines, Standards, and Regulations

• 36 CFR 61: Secretary of the Interior’s Standards and Guidelines for Archeology and Historic Preservation;
• North Carolina Office of State Archaeology’s Archaeological Investigation Standards and Guidelines (http://archaeology.ncdcr.gov/programs/forms);
• North Carolina Historic Preservation Office Survey Manual: Practical Advice for Recording Historic Resources;
• Chapter 70-18 of the North Carolina General Statutes (Confidentiality);
• FHWA NCDOT Programmatic CE Agreement;
• 23 CFR 771: Environmental Impact and Related Procedures;
• 36 CFR 800: Protection of Historic Properties;
• 40 CFR 1508: CEQ Regulations for Implementing National Environmental Policy Act (NEPA);
• North Carolina Department of Transportation: Historic Architecture Group Procedures and Work Products;
• Rivers and Harbors Act of 1899;
• Section 10 (33 USC 401 and 403);
• Clean Water Act of 1973; and
• Section 404 (33 USC 1344).

ATTACHMENT C

Cultural Resources Training Requirements

A NCDOT CR Specialist should receive ongoing training in the following areas to review activities under this PA:

• Historic and Archaeological Preservation
• Introduction to Section 106
• Identification and Eligibility of Historic Properties
• Establishing Historic Property Boundaries
• Identifying Historic and/or Cultural Landscapes
• Application of Criteria of Effect
• Native American Consultation
• GIS & Cultural Resources

In addition, the NCDOT architectural historians shall attend all National Register Consultants Workshops hosted by SHPO and at least one NCDOT architectural historian shall attend each Study List staff review meeting and National Register Advisory Committee meeting.

NCDOT shall provide training to Project Managers, Project Engineers, Division Environmental Staff and consultants in the following areas to help with implementation of this PA: Undertakings utilizing the Exemption Checklist in Attachment A, and general understanding of the PA and Manual.

ATTACHMENT D

PA Forms

• Programmatic Agreement Screening Checklist
• Archaeology: No Survey Required
• Archaeology: Survey Required
• Archaeology: Effects Required
• Archaeology: No NRHP Eligible or Listed Archaeological Sites Affected
• Archaeology: No NRHP Eligible or Listed Archaeological Sites Present
• Archaeology: No NRHP Eligible or Listed Archaeological Sites Adversely Effected
• Archaeology: Archaeological Adverse Effect Determination
• Historic Architecture: No Survey Required
• Historic Architecture: Survey Required
• Historic Architecture: Effects Required Form
• Historic Architecture: No Historic Properties Affected
• Historic Architecture: No Historic Properties Present
• Historic Architecture: Assessment of Effects Form

ATTACHMENT E

TRIBAL COORDINATION PROTOCOL

Tribal Coordination Protocol / Procedures

Updated/Last Reviewed: 9/24/20

Tribal Coordination Letters

When does this process/ procedure begin and who begins it?

When sending out project Start of Study letters. The NCDOT project manager or their NCDOT designee.

What elements do I need to begin this process/ procedure?

• Project Vicinity Map
• Tribal coordination letter template
• Tribal Coordination Table and Contact List

Instructions:

1. View the Tribal Coordination Table and Contact Information and determine which Tribe(s) should be contacted regarding the project.
2. Use the Tribal Coordination Start of Study Letter template to develop the letter to send to the Tribe(s).
3. In compliance with the informal delegated consultation agreements between the FHWA, USACE and Tribes, the letter must
   • be on NCDOT Letterhead and identify the lead federal agency,
   • be signed by an NCDOT official,
   • and transmitted by an NCDOT official’s email*
   • * if contacting the Catawba Nation, the letter must be distributed via hard copy (mail).
   • Matt Wilkerson must be cc’d on all letters to the Tribes.
4. If the project is State funded, the USACE should be cc’d on the letter.
5. If the project impacts Tribal Lands*, or known tribal resources are at or nearby the project:
   • If the project is Federally funded, the Corps Project Manager should be cc’d on the letter.
   • If the project is State funded, then the Corps‐Tribal 2017 MOU is invoked, and the Corps will handle all contact.
6. The Federally recognized Tribes on the North Carolina counties list that have accepted this protocol for undertakings where FHWA or the USACE is the lead federal agency must be provided project information. The Federally recognized Tribes on the North Carolina counties list that have not consulted with FHWA or the USACE on past NCDOT projects are included for reference only and are not currently included on the contact information sheet. It is important here to acknowledge that other federally recognized Tribes associated with USFS property and the Trail of Tears may need to be contacted for NCDOT projects. Projects with USFS property that have the potential to impact the Trail of Tears will continue to be addressed on a case by case basis in coordination with USFS staff. Non‐Federally Recognized Tribes within the state of North Carolina are included on the North Carolina counties list as, even though they do not have a statutory right to be included in the Section 106 process, an agency may invite them to participate if they have a demonstrated interest in a project. Notify the lead federal agency if any federally recognized Tribe requests project coordination occur at a government to government level between the federal government and the Tribe.
7. If you have provided an opportunity for Tribes to comment on your undertaking prior to requesting an archaeological review of your project, and the Tribe raised no issues then you do not need to forward the “No Survey” documentation to the Tribe(s). For projects where we did not ultimately decide to recommend an archaeological survey (after consideration of available information including information provided by other consulting parties and/or Indian tribes) and a "No Survey" form is generated, the NCDOT project manager does not need to transmit the form to any Tribe on the list unless the Tribe previously requested additional information, or that an archaeological survey be conducted. If a review of the undertaking resulted in a “No survey” recommendation and you have yet to contact the Tribe(s), you may include the “No Survey” recommendation as part of your Tribal Protocol consultation request documentation provided to the Tribe(s). Any actual survey results are to be forwarded to the appropriate Tribe(s) by the NCDOT project manager unless otherwise directed by their federal agency contact(s).
8. All of the above correspondence, as well as any replies, or survey recommendations from the Tribe(s), or from NCDOT should be included as attachments in the NEPA/SEPA document and/or maintained as part of the project’s administrative record.

*Tribal Lands are defined as (A) All lands within the exterior boundaries of any Indian reservation; and (B) all dependent Indian communities 16 U.S.C. 470w(14). Tribal lands include lands held in trust by the United States for a tribe external to the boundaries of a reservation if the lands are under Federal superintendence, but does not include allotment external to the boundaries of a reservation.

List Version: 12/13/2019 COUNTY           NCDOT Div         ECAP Region

Cherokee Nation

Eastern Band of Cherokee Indians

United Keetoowah Band of Cherokee Indians

Catawba Indian Nation

Tuscarora Nation

Monacan Indian Nation

Muscogee (Creek) Nation

Pamunkey Indian Tribe (USFWS)

Coharie Indian Tribe (State)

Haliwa-Saponi Indian Tribe (State)

Lumbee Tribe of NC (State)

Meherrin Indian Nation (State)

Saponny (State)

Waccamaw Siouan Tribe (State)

Occaneechi Band of the Saponi Nation (State)

ALAMANCE

7

Western

X

X

ALEXANDER

12

Western

X

X

X

X

ALLEGHANY

11

Western

X

X

X

X

ANSON

10

Western

X

ASHE

11

Western

X

X

X

X

X

AVERY

11

Western

X

X

X

X

X

BEAUFORT

2

Eastern

X

BERTIE

1

Eastern

X

X

BLADEN

6

Eastern

X

X

BRUNSWICK

3

Eastern

X

BUNCOMBE

13

Western

X

X

X

X

X

BURKE

13

Western

X

X

X

X

CABARRUS

10

Western

X

CALDWELL

11

Western

X

X

X

X

CAMDEN

1

Eastern

X

CARTERET

2

Eastern

X

X

CASWELL

7

Western

X

X

CATAWBA

12

Western

X

X

X

X

CHATHAM

8

Eastern

X

CHEROKEE

14

Western

X

X

X

X

X

CHOWAN

1

Eastern

X

CLAY

14

Western

X

X

X

X

X

CLEVELAND

12

Western

X

X

X

X

COLUMBUS

6

Eastern

X

X

CRAVEN

2

Eastern

X

CUMBERLAND

6

Eastern

X

CURRITUCK

1

Eastern

X

X

DARE

1

Eastern

X

DAVIDSON

9

Western

X

DAVIE

9

Western

X

DUPLIN

3

Eastern

X

X

DURHAM

5

Eastern

X

EDGECOMBE

4

Eastern

X

X

FORSYTH

9

Western

X

FRANKLIN

5

Eastern

X

GASTON

12

Western

X

X

X

X

GATES

1

Eastern

X

GRAHAM

14

Western

X

X

X

X

X

GRANVILLE

5

Eastern

X

X

GREENE

2

Eastern

X

X

GUILFORD

7

Western

X

X

HALIFAX

4

Eastern

X

X

X

HARNETT

6

Eastern

X

X

HAYWOOD

14

Western

X

X

X

X

X

HENDERSON

14

Western

X

X

X

X

X

HERTFORD

1

Eastern

X

X

X

HOKE

8

Eastern

X

X

HYDE

1

Eastern

X

IREDELL

12

Western

X

X

JACKSON

14

Western

X

X

X

X

X

JOHNSTON

4

Eastern

X

X

JONES

2

Eastern

X

X

LEE

8

Eastern

X

LENOIR

2

Eastern

X

X

LINCOLN

12

Western

X

X

X

X

MACON

14

Western

X

X

X

X

X

MADISON

13

Western

X

X

X

X

X

MARTIN

1

Eastern

X

X

MCDOWELL

13

Western

X

X

X

X

X

MECKLENBURG

10

Western

X

X

MITCHELL

13

Western

X

X

X

X

X

MONTGOMERY

8

Eastern

X

MOORE

8

Eastern

X

NASH

4

Eastern

X

X

NEW HANOVER

3

Eastern

X

NORTHAMPTON

1

Eastern

X

X

ONSLOW

3

Eastern

X

ORANGE

7

Western

X

X

X

PAMLICO

2

Eastern

X

PASQUOTANK

1

Eastern

X

PENDER

3

Eastern

X

PERQUIMANS

1

Eastern

X

PERSON

5

Eastern

X

X

X

PITT

2

Eastern

X

X

POLK

14

Western

X

X

X

X

X

RANDOLPH

8

Eastern

X

RICHMOND

8

Eastern

X

ROBESON

6

Eastern

X

X

ROCKINGHAM

7

Western

X

X

ROWAN

9

Western

X

RUTHERFORD

13

Western

X

X

X

X

X

SAMPSON

3

Eastern

X

X

X

SCOTLAND

8

Eastern

X

X

STANLY

10

Western

X

STOKES

9

Western

X

SURRY

11

Western

X

SWAIN

14

Western

X

X

X

X

X

TRANSYLVANIA

14

Western

X

X

X

X

X

TYRRELL

1

Eastern

X

UNION

10

Western

X

VANCE

5

Eastern

X

X

WAKE

5

Eastern

X

WARREN

5

Eastern

X

X

WASHINGTON

1

Eastern

X

WATAUGA

11

Western

X

X

X

X

X

WAYNE

4

Eastern

X

X

WILKES

11

Western

X

X

X

X

WILSON

4

Eastern

X

X

YADKIN

11

Western

X

YANCEY

13

Western

X

X

X

X

X

Tribal Contacts

Tribe	Address	email	Send SOS Letters via	Last Updated
Catawba Indian Nation	Dr. Wenonah Haire Catawba Indian Nation Tribal Historic Preservation Office 1536 Tom Steven Road Rock Hill, SC 29730			6/26/2019
Cherokee Nation	Elizabeth Toombs Tribal Historic Preservation Officer PO BOX 948 Tahlequah OK, 74465	elizabeth-toombs@cherokee.org	can transmit letter via email	6/26/2019
Eastern Band of Cherokee Indians	Russell Townsend Tribal Historic Preservation Office 2077 Governors Island Road Bryson City NC 28713	russtown@nc-cherokee.com syerka@nc-cherokee.com	can transmit letter via email	12/13/2019
Monacan Indian Nation	Monacan Indian Nation Tribal Office 357 S. Main Street Amherst, VA 24521 434-363-4864	tribaloffice@monacannation.com attn: Kaleigh Pollak	can transmit letter via email	12/11/2019
United Keetoowah Band of Cherokee Indians	James Hartley Tribal Historic Preservation Office PO BOX 1245 Tahlequah OK, 74465	jhartley@ukb-nsn.gov	can transmit letter via email	12/04/2019
Tuscarora Indian Nation	Bryan Printup Tribal Historic Preservation Office 5226 Walmore Road Lewistown, NY 14092	bprintup@hetf.org	can transmit letter via email
Muscogee (Creek) Nation	LeeAnne Wendt PO BOX 580 Okmulgee, OK 74447	lwendt@mcn-nsn.gov	can transmit letter via email	8/15/2019

 

STATE OF NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION

September 5, 2019
Mr. Russell Townsend
Preservation Specialist
Eastern Band of Cherokee Indians (EPCI) THPO
2877 Governor’s Island Road
Bryson City, NC 28713

Dear Mr. Townsend,

The North Carolina Department of Transportation is starting the project development, environmental, and engineering studies for [insert project description (e.g. replacement of Bridge No. ## over Y stream on (Road Common Name and S.R.) in Z County)] as project X-1234. The [Federal Highway Administration (FHWA) or US Army Corps of Engineers (USACE)] is the lead federal agency for compliance with the National Environmental Policy Act (NEPA) and Section 106 of the National Historic Preservation Act (NHPA) and a Permit is anticipated under the Section 404 Process with the USACE. A project vicinity map is attached. The coordinates of this project are approximately 35.186947,-78.375345.

We would appreciate any information you might have that would be helpful in evaluating potential environmental impacts of the project including recommendation of alternates to be studied. Your comments may be used in the preparation of a NEPA/ State Environmental Policy Act (SEPA) Environmental Document.

In accordance with Section 106 of the NHPA, we also request that you inform us of any historic properties of traditional religious or cultural importance that you are aware of that may be affected by the proposed project. Be assured that, in accordance with confidentiality and disclosure stipulations in Section 304 of the NHPA, we will maintain strict confidentiality about certain types of information regarding historic properties.

Please respond by November 30th so that your comments can be used in the scoping of this project. If  you have  any questions concerning this project, or would like any additional information, please contact me at dstutts@ncdot.gov or (919) 707-6442.

Thank you,

 

David Stutts, P.E.
NCDOT Project Engineer – PEF/Program Management

cc: Matt Wilkerson, NCDOT Archaeology Team Leader
USACE Project Manager (if state funded OR if Federally Funded AND Impacts Tribal Land or known tribal resources are at or nearby the project)

Mailing Address:
NC DEPARTMENT OF TRANSPORTATION STRUCTURES MANAGEMENT UNIT
1581 MAIL SERVICE CENTER RALEIGH NC 27699

Telephone: (919) 707-6400
Customer Service: 1-877-368-4968
Website: www.ncdot.gov

Location: 1000 BIRCH RIDGE DRIVE RALEIGH NC 27610