CATEGORICAL "NO HISTORIC PROPERTIES AFFECTED"

PROGRAMMATIC MEMORANDUM OF UNDERSTANDING
Between
the FEDERAL HIGHWAY ADMINISTRATION (FHWA),
Iowa Division,
the IOWA DEPARTMENT OF TRANSPORTATION (IA DOT),
and
the IOWA STATE HISTORIC PRESERVATION OFFICER (IA SHPO)

I. PREAMBLE:

WHEREAS: the IA DOT has received, and will continue to receive, federal aid to highways funding from the FHWA for the purposes of planning, designing, constructing and maintaining interstate, primary, and local systems highways and ancillary facilities throughout the State of Iowa; and

WHEREAS: Section 106 of the National Historic Preservation Act of 1966, as amended, (Section 106), and the Council for Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act of 1969 (NEPA) require the federal agency (FHWA) having jurisdiction over a federal, federally-assisted, or federally-licensed undertaking (project) to take into account the effects of the agency's undertakings upon properties listed on, or considered eligible for listing on, the National Register of Historic Places; and

WHEREAS: it is the responsibility of the FHWA to determine that a proposed project, activity, or program constitutes an "undertaking," and also to establish a designated undertaking's area of potential effect upon historic resources; and

WHEREAS: in addition to the multitude of more `traditional' federally-funded highway improvement projects contemplated and referenced above, Section 1108 (b) of the Transportation Equity Act of the 21st Century (TEA 21) also authorizes the expenditure of federal funds for the development and construction of "transportation enhancement activities;" and

WHEREAS: Section 1201, paragraph 35 of TEA 21 defines the phrase "transportation enhancement activities" to include a variety of `non-traditional' project categories that can be directly beneficial to the preservation of historic (cultural) properties; and

WHEREAS: transportation enhancement projects are also federally-assisted undertakings for Section 106 purposes and have the potential to affect properties included on, or eligible for inclusion on, the National Register of Historic Places, and therefore require compliance with Section 106 provisions and its implementing regulations, as found in 36CFR Part 800 (Part 800), in the same manner as traditional federally-funded highway projects; and

WHEREAS: the FHWA and the IA DOT have determined- in consultation with the IA SHPO- that certain types of undertakings, including transportation enhancement projects, normally do not result in significant alterations to, or otherwise adversely affect, adjacent cultural sites and resources, and that Part 800 consultation by the agencies with the IA SHPO for such undertakings is deemed to be unnecessary, if the undertakings meet all of the qualifying criteria appropriate to their specific category of projects as described in Exhibit A; and

WHEREAS: On July 13, 1989, these same three parties executed a "Categorical No Effect Agreement" designed to eliminate from review certain kinds of undertakings which normally do not result in significant alterations to, or otherwise adversely affect, cultural resources; and

WHEREAS: the parties believe that the 1989 agreement has achieved those goals, has been of benefit to all of the parties and, with amendment, would offer potential for even greater future savings of time and effort through expansion to other undertakings, including transportation enhancement projects as defined by TEA 21; and

WHEREAS: in May 1997, the Chairman of the Advisory Council on Historic Preservation, the Acting Administrator of the Federal Highway Administration, and the President of the National Conference of State Historic Preservation Officers executed a Nationwide Programmatic Agreement pertaining to the implementation of Transportation Enhancement project activities, said agreement being designed to reduce the processing time required to review such projects with respect to possible impacts upon cultural resources; and

WHEREAS: on July 18, 1997, the IADOT notified the FHWA, the Advisory Council and the National Conference of SHPOs that it was officially adopting said Nationwide Programmatic Agreement for Iowa's transportation enhancement program, with the expectation that doing so would reduce the need for SHPO review of individual enhancement projects, thus reducing project development time; and

WHEREAS: the signatories to this agreement desire to reduce the time required for planning and development activities for all qualifying federally-funded Iowa transportation and related undertakings, including enhancement projects, by eliminating the requirement for a full Part 800 historic preservation consultation with the Iowa SHPO on individual projects which meet applicable qualifying criteria.

II. THE UNDERSTANDING:

NOW, THEREFORE, AND IN CONSIDERATION OF THE FOREGOING DECLARATIONS, IT IS AGREED BY THE PARTIES TO THIS "CATEGORICAL NO HISTORIC PROPERTIES AFFECTED " PROGRAMMATIC MEMORANDUM OF UNDERSTANDING -

THAT: the stipulations found in Section III and the qualifying criteria preceding, or contained in, each group of project categories, as found in Exhibit A, provide acceptable and adequate screening for federally-funded transportation projects, by which the parties may exclude from further Part 800 historic preservation review processing, all projects which meet the stipulations and qualifying criteria; and

THAT: the undertakings listed in Exhibit A have each been determined to comply with the stipulations and meet qualifying criteria established for their respective categories, and are therefore declared by the signatories to be exempt from the need for Part 800 historic preservation consultation with the IA SHPO; and

THAT: adherence to this agreement by the IOWA DOT and the FHWA will satisfy the responsibilities of those agencies under Section 106/Part 800 and NEPA to consider the effects of these categories of undertakings on cultural resources through consultation with the IA SHPO; and

THAT: for other categories of federally-assisted undertakings not included in the attached list (Exhibit A), or included in the list but having been found as individual projects to not meet all of their applicable qualifying criteria, FHWA and the IA DOT shall, for those excepted undertakings, identify and evaluate historic properties which may be affected, assess the undertakings' effect upon those resources, consult with the IA SHPO, and afford the President's Advisory Council on Historic Preservation (Council) an opportunity to comment, when appropriate under Part 800; and

THAT: if, during implementation of any project, including actions included on the attached list, the work uncovers an historic object or other resource which may be of archeological, historical, or architectural significance, or if important new archeological, historical, or architectural data come to light in the project area, the agencies shall avoid or minimize harm to the resource(s), contact the IA SHPO (and the Iowa Office of the State Archeologist if prehistoric burial association is evident or suspected), evaluate the resource, and develop an appropriate course of action per the requirements of Part 800. Council will be notified of the discovery, and of any action taken; and

THAT: if any interested person objects to any determination made by the FHWA and the IA SHPO pursuant to this agreement, the FHWA shall ensure that the concerned public has a reasonable opportunity to comment, per Part 800. In addition, the FHWA will provide the Council with whatever documentation/additional information it may request in connection with notification by the public under Part 800.6(e); and

THAT: documentation of all projects processed under this agreement shall be retained by the FHWA and made available to the SHPO at any time during the life of the projects. The FHWA shall, by October 15th of each year, report to the SHPO the number of projects which have been processed under this agreement; and

THAT: the parties hereto will explore and develop suitable methodologies for tracking projects processed and advanced without SHPO review under this agreement such that the overall desirability, effectiveness and reliability of its procedures can be readily identified. Based upon the results of tracking information, the parties may establish a mutually agreeable interval for conducting a formal review of the process for revision, addition or deletion of individual project exclusions, or to specify procedural changes; and

THAT: in addition to the formal review contemplated above, these procedures also may be reviewed for possible modification at the request of any of the parties, and at any time. Any party may initiate any revision(s), including termination, to this agreement by submitting written notice to the other parties at least 30 days in advance of the desired action; and

FINALLY THAT: upon execution of this Categorical No Historic Properties Affected Memorandum of Understanding by the parties, the 1989 agreement shall be considered terminated, to be replaced in its entirety by this agreement.

III. STIPULATIONS

The parties to this agreement stipulate that all classes of actions described in the attached list (Exhibit A), "Undertakings Not NormallyRequiring Further Consultation with Iowa SHPO," 1) are hereby considered to result in "No Historic Properties Affected," and, 2) will require neither individual nor categorical Part 800 historic preservation review or consultation with the IA SHPO so long as they meet and satisfy all of the qualifying criteria set forth at the beginning of, or contained in, their respective sections of Exhibit A.

IV. EXECUTION OF THE AGREEMENT:

By their signatures below, the parties to this agreement indicate their concurrence with its provisions and their intent to fully abide by its provisions. Execution of this Categorical No Historic Properties Affected Programmatic Memorandum of Underatanding evidences that FHWA and the IA SHPO have reached agreement on the effects of specified categories of undertakings upon cultural resources.

FEDERAL HIGHWAY ADMINISTRATION, Iowa Division

BY: __________________ DATE: ____________
     Bobby Blackmon, Division Administrator

IOWA STATE HISTORIC PRESERVATION OFFICER

BY: __________________ DATE: ____________
     Patricia Ohlerking, Deputy SHPO

IOWA DEPARTMENT OF TRANSPORTATION, Planning & Programming Division

BY: __________________ DATE: ____________
     Harry S. Budd, Director
     Office of Project Planning