State Section 106 Programmatic Agreement

PROGRAMMATIC AGREEMENT
AMONG THE FEDERAL HIGHWAY ADMINISTRATION,
THE TEXAS DEPARTMENT OF TRANSPORTATION,
THE TEXAS STATE HISTORIC PRESERVATION OFFICER,
AND THE ADVISORY COUNCIL ON HISTORIC PRESERVATION
REGARDING THE IMPLEMENTATION OF TRANSPORTATION UNDERTAKINGS

This Programmatic Agreement  ("Agreement") is entered into between the Texas Department of Transportation (TxDOT), the Texas Historical Commission   (THC) acting as the Texas State Historic Preservation Officer  (SHPO), and the Advisory Council on Historic Preservation (ACHP).  TxDOT, SHPO, and ACHP are collectively referred to herein as the "Signatories," and individually as a "Signatory."

WHEREAS, Federal Highway Administration (FHWA) provides and administers funds to the State of Texas through TxDOT under the Federal-Aid Program as authorized by 23 U.S.C. 104(b); and

WHEREAS, FHWA assigned to TxDOT the responsibility for compliance with Section 106 of the National Historic Preservation Act (NHPA) as pursuant to the "Memorandum of Understanding between Federal Highway Administration, Texas Division  (FHWA) and the Texas Department of Transportation Concerning State of Texas' Participation In the Project Delivery Program Pursuant to 23 U.S.C. 327 (December 16, 2014t (NEPA Assignment MOU); and

WHEREAS, TxDOT is responsible for assuring compliance with Section 106 of the NHPA of 1966, as amended  (54 USC 306108), in accordance with regulations outlined In 36 CFR 800 and Texas' apportioned federal funds under the Federal-Aid Program; and

WHEREAS, 36 CFR Section B00.14(b) permits federal agencies to fulfill their obligations under Section 106 through the development and Implementation of programmatic agreements; and

WHEREAS the Programmatic Agreement Among the Federal Highway Administration, the Texas Department of Transportation, the Texas State Historic Preservation Officer, and the Advisory Council on Historic Preservation Regarding the Implementation of Transportation Undertakings" (Section 106 PA, 2015) established protocols for streamlined Section 106 project review in Texas; and

WHEREAS, the ACHP published the "Program Comment for Common Post-1945 Concrete and Steel Bridges" (Program Comment 2012) which removes the requirement for individual consideration under Section 106 for certain bridges of these types when they have not been previously determined eligible or isted on the National Register of Historic Places (NRHP); and

WHEREAS, Section 1303 of the Fixing America's Surface Transportation Act (23 U.S.C. 13B(e) amended 23 U.S.C. 138 and 49 U.S.C. 303) exempts those bridges meeting the criteria under the Program Comment from any consideration under the respective provisions also commonly known as Section 4(f); and 45

WHEREAS, TxDOT inventoried and recommended certain post-1945 bridges (Post-1945 Bridges) eligible for listing in the NRHP which therefore are not subject to the provisions of the Program Comment, and the SHPO concurred with these recommendations as found in the 2013 Texas Historic Bridge Inventory, Evaluation of 1945-1965 Bridges; and

WHEREAS, TxDOT further categorized the Post-1945 Bridges into three treatment tiers, based on criteria developed in consultation with the SHPO, the Historic Bridge Foundation (HBF) and the public; and

WHEREAS, the Signatories developed this Agreement to streamline project review by establishing treatment protocols which may be used to mitigate the impacts of projects related to the Post-1945 Bridges and that may not be suitable candidates for preservation in place or relocation; and

WHEREAS, TxDOT carried out a public involvement campaign with the assistance of SHPO and HBF, to share the eligibility determinations of the 1945-1965 survey with local interests, to inform the public of the 61 provisions of this Agreement and its implications, and to consider comments received In finalizing 62 treatment protocols for the Post-1945 Bridges; and

WHEREAS, TxDOT, in collaboration with SHPO, provided training for potential consulting parties on how to respond to formal requests for comment on TxDOT bridge projects through regional training in the Spring and Summer of 2016; and

WHEREAS, TxDOT consulted with the twenty-six federally recognized Native American tribes with interest in the state of Texas, and found no tribes with an interest In this Agreement; and

WHEREAS, this Agreement applies solely to the Post-1945 Bridges themselves, and neither any archeological sites nor any other historic properties which may be adjacent to the Post-1945 Bridges; and

WHEREAS, TxDOT consulted with HBF and Invited them to sign this Programmatic Agreement as a concurring party; and

WHEREAS, TxDOT, SHPO, and the ACHP are the signatories to this Agreement and as such have the sole authority to execute, amend, or terminate it; and

NOW, THEREFORE, TxDOT, SHPO, and the ACHP agree the Federal-Aid Program managed by TxDOT will be carried out in accordance with this Agreement to mitigate impacts to Post-1945 Bridges affected by the program. Impacts to historic properties other than Post-1945 Bridges will require separate consideration under Section 106 which may be addressed subject to the Section 106 PA, 2015.

STIPULATIONS

TxDOT, as assigned by FHWA under the NEPA Assignment MOU, shall ensure that the following stipulations are carried out:

APPLICABILITY

This Agreement applies only to Federal-Aid Program bridge projects conducted by TxDOT on behalf of FHWA involving certain Post-1945 Bridges Identified and categorized as Exceptionally Significant Bridges, Significant Bridges Requiring Programmatic Mitigation, and Mitigated Eligible Bridges (Appendices A-C).

I. Protocol Treatments for Bridges Constructed between 1945 and 1965

When TxDOT identifies a Federal-Aid Program project Involving a Post-1945 Bridge, it will apply one of the following protocols based on the type of Post-1945 Bridge within the project:

1. Treatment for Exceptionally Significant Bridges (Appendix A)
   1. Exceptionally Significant Bridges are those that are singular bridges significant in more than one of the following categories:
      1. Important program initiatives such as 3- and 4-level interchanges and international bridges
      2. Innovative features and design, such as award-winning designs and new materials
      3. Work of a master bridge engineer
      4. Exceptional length spans or exceptional overall length
      5. Early use of bridge types In Texas, such as prestressed concrete, pan-formed girder bridges, and FS slab bridges
      6. Uncommon bridge types in Texas, such as rigid frame bridges and variable depth slab bridges
      7. Possess high artistic value
   2. In accordance with the provisions of the Program Comment TxDOT shall provide FHWA a finalized list of Post-1945 Bridges.
   3. Appendix A can be amended based on the passage of time or changing perception of significance (36 CFR §800.4(c)(1)).
   4. Adverse effects to Exceptionally Significant Bridges shall be individually resolved in consultation with SHPO, HBF, and other consulting parties, as per the regulations codified at 36 CFR BOO and In the Section 106 PA, 2015.
2. Treatment for Significant Bridges Requiring Programmatic Mitigation (Appendix B)
   1. Significant Bridges Requiring Programmatic Mitigation are those Post-1945 Bridges that are significant when considered together as a group. The significance of these Post-1945 Bridges lies in their history, rather than their potential for preservation in place.
   2. TxDOT shall consult with the SHPO and HBF for Post-1945 Bridges in this category to develop programmatic mitigation which may include contexts united by a significant theme (e.g. geography, engineering, technology), representative photos, available plan sets, and engineer biographies as further described in Stipulation II.
   3. TxDOT shall complete this programmatic mitigation within two years of the effective date of this Agreement.
   4. The Parties agree that TxDOT will notify SHPO and HBF regarding each individual Post- 1945 Bridge project and will address any additional historic properties identified at that time. Project notification will follow the protocol in the Section 106 PA, 2015.
3. Treatment for Mitigated Eligible Bridges (Appendix C)
   1. Mitigated Eligible Bridges are those Post-1945 Bridges that are significant primarily for their technological innovations. The significance of these bridges lies in their physical representation of these innovations, rather than their potential for preservation in place.
   2. The Parties agree that signature of this Agreement and project documentation In the database of record may close non-archeological review for this class or bridge under Section 106 of the NHPA / 36 CFR Part 800 unless TxDOT identifies additional historic properties.

II. Mitigation

Mitigation for Appendix B Bridges requires consultation with the SHPO and HBF to identify appropriate products and partners.

1. TxDOT, SHPO, and HBF shall carry out an historic bridge public education campaign as specified below and will create mitigation materials that address Texas' Post-1945 Bridges and will include:
   1. Educational materials specific to Post-1945 Bridge subtypes and/or significant themes from this period Identified in the •Historic Road Infrastructure of Texas, 1866-1965" Multiple Property Submission (MPS). These materials will follow standard dimensions and be produced in formats printable from internet portals supported by the SHPO and the HBF.
   2. Educational materials related to notable bridge engineers In Texas from this period. These materials will follow standard dimensions and be produced In formats printable from Internet portals supported by the SHPO and the HBF.
   3. Video clips about specific Post-1945 Bridges, types of bridge construction, or engineers with the expectation that these video clips will be viewed via Internet portals supported by the SHPO and the HBF. The material for the video clips will be excerpts from existing TxDOT videos of interviews documented for the MPS. No new video will be created during the production of this deliverable.
   4. SHPO will publish materials produced by TxDOT on the SHPO website and social media sites as appropriate, and may write content to summarize, publicize, and otherwise highlight information related to this Agreement.
   5. HBF and SHPO shall comment on educational material produced per this Agreement within a concurrent 30-day period to TxDOT.
   6. TxDOT will write a Communications Plan to address public distribution of mitigation materials.
   7. TxDOT shall complete mitigation materials for Post-1945 Bridges included in Appendix B within two years of the effective date of the Agreement.
2. TxDOT shall first make any historic bridge it proposes to demolish available for donation to state, local, or responsible private entity in compliance with 23 U.S.C. 144(g.) For Appendix A bridges, TxOOT will determine if the bridge is a reasonable candidate for relocation or remaining in place. If so, TxDOT will follow its standards marketing procedure for that bridge. The standard protocol involves the development of a bridge flier, posting the flier on TxDOT's website and in physical locations near the bridge, releasing a press release to local news outlets, and notifying the county historical commissions, Certified Local Governments, city governments, trail organizations, and other interested parties within a 50-mile radius of the bridge. For all other Post-1945 Bridges, TxDOT will develop a bridge flier to advertise the Post-1945 Bridge availability on the TxDOT website for 30 days.

III. Review

The Agreement shall be reviewed by the Signatories and the concurring parties every three years. A compliance review shall be completed within two months on written request of a Signatory or concurring party.

IV. Dispute Resolution

Disputes will be resolved using the process outlined in the 2015 Section 106 PA, Stipulation XI (F) and its successor agreements.

V. Amendment

This Agreement may be amended by the written concurrence of all Signatories. Any Signatory to this Agreement may request that it be amended, whereupon the Signatories will consult to reach a consensus on the proposed amendment. TxDOT wiff seek input from the concurring parties on any proposed amendments. Any amendment to this Agreement must be signed by all Signatories. TxDOT will provide copies of the amendment to the concurring parties.

VI. Emergency Undertakings

Emergency projects will be resolved using the process outlined in the 2015 Section 106 PA, Stipulation XII and its successor agreements.

VII. Annual Report

TxDOT will prepare a report documenting any activities it conducted under this Agreement. TxDOT will provide the report to all Signatories to this Agreement. TxDOT will prepare a report on an annual basis beginning one year after the execution of this Agreement.

VIII. Termination

Any Signatory to this Programmatic Agreement may terminate it by submitting a thirty (30) calendar day notice In writing to all Signatories and concurring parties, provided the Signatories and concurring parties continue to consult during the period prior to termination to seek agreement on amendments and other actions that would avoid termination.

If the Agreement is terminated, TxDOT will follow the procedures defined in 36 CFR Part 800 and Section 4(f) for all bridges listed in Appendices A-C.

IX. Effective Period

The Agreement will be in effect for five (5) years. Upon carrying out a review under Stipulation III above, the Signatories may in writing extend the effective period of the Agreement for one additional five year period.

X. Execution

This Agreement may be executed in one or more counterparts, each of which shall be considered an original for all purposes. Final copies will be circulated to all Signatories and concurring parties to this Agreement.

Execution of this Agreement and implementation of its terms evidence that TxDOT has taken into account the effects of the Federal-Aid program onPost-1945 Bridges and afforded the ACHP an opportunity to Comment in regard to the individual actions of the program as it affects Post-1945 Bridges.

TEXAS DEPARTMENT OF TRANSPORTATION

James M. Bass, Executive Director, Texas Department of Transportation

Date: 2/24/17

TEXAS STATE HISTORIC PRESERVATION OFFICER

By: Mark Wolfe, Texas Historical Commission

Date: 1/25/17

ADVISORY COUNCIL ON HISTORIC PRESERVATION

By: John M. Fowler, Executive Director

Date: 3/7/17

HISTORIC BRIDGE FOUNDATION

By: Kitty Henderson, Executive Director

Date: 11/16/16