AMENDED
PROGRAMMATIC AGREEMENT
AMONG THE FEDERAL HIGHWAY ADMINISTRATION,
THE MARYLAND STATE HIGHWAY ADMINISTRATION,
THE ADVISORY COUNCIL ON HISTORIC PRESERVATION AND
THE MARYLAND STATE HISTORIC PRESERVATION OFFICER
FOR MINOR HIGHWAY PROJECTS

WHEREAS, the Federal Highway Administration (FHWA) administers the Federal Aid Highway Program (FAHP) in Maryland authorized by 23 U.S.C. 101 et seq. through the Maryland State Highway Administration (SHA) (23 U.S.C. 315); and,

WHEREAS, the SHA undertakes Federal minor highway projects that would qualify as Categorical Exclusions, as defined in 23 CFR 771, and do not individually or cumulatively have a significant impact on the environment, and therefore may not require the preparation of an environmental document; and

WHEREAS, the FHWA has determined that certain types of minor highway projects typically have no effect upon historic properties included in or eligible for inclusion in the National Register of Historic Places (NRHP) and has consulted with the Advisory Council on Historic Preservation (Council) and the Maryland State Historic Preservation Officer (MD SHPO) pursuant to Section 800.14 of the regulations (36 CFR Part 800 Subpart C) implementing Section 106 of the National Historic Preservation Act (16 U.S.C. 470f); and

WHEREAS, the SHA participated in the consultation and has been invited to be a signatory to this Programmatic Agreement (PA); and

WHEREAS, the SHA administers state funded minor highway projects as defined in Section 2-103.1 of the Transportation Article and the SHA and the MD SHPO also agree that the fulfillment of the terms of this PA for state funded projects will satisfy the SHA's responsibilities under the requirements of the Maryland Historical Trust Act of 1985, as amended, State Finance and Procurement Article §§ 5A-325 and 5A-326 of the Annotated Code of Maryland (Act) for all individual SHA funded projects that meet Stipulations IV or V of this PA; and

WHEREAS, the SHA in its compliance with the National Environmental Policy Act and the Maryland Environmental Policy Act, seeks to coordinate historical and archeological investigations, reviews, and consultations as a single process; and

WHEREAS, the SHA has a staff of cultural resources specialists who meet the professional qualifications in 36 CFR Part 61 Appendix A in the fields of archeology, architectural history, and history, to carry out its historic preservation programs and responsibilities; and,

WHEREAS, the FHWA, Council, MD SHPO, and SHA originally executed a PA for Minor Highway Projects on July 26, 1993 and amended it on February 22, 2001 and the parties to the original and amended agreements have consulted and agreed to amend the PA, pursuant to Stipulation J of the original agreement and Stipulation IX of the amendment, and thus the amended PA herein supersedes the earlier PAs;

NOW, THEREFORE, the FHWA, Council, MD SHPO, and SHA agree that the undertaking of minor highway projects shall be administered in accordance with the following revised and amended stipulations, exercising reasonable judgment and good faith, to satisfy the FHWA's Section 106 responsibilities for all individual undertakings of the program.

STIPULATIONS

FHWA will ensure that the following measures are carried out:

FHWA will ensure that the following measures are carried out:

I. Purpose and Applicability

This PA sets forth the process by which the FHWA will meet its responsibilities under Sections 106, 110(d), and 110(f) of the National Historic Preservation Act (NHPA), with the assistance of the SHA, for minor highway projects of the FAHP. Furthermore, the PA institutes the process by which the SHA will meet its responsibilities under the Act for certain state funded activities. This PA establishes the basis for the SHA's internal review of individual minor projects and establishes how the FHWA and the MD SHPO will be involved in any review.

II. Responsibilities of the FHWA, the SHA and the MD SHPO

In compliance with its responsibilities under NHPA and as a condition of its award of any assistance for minor projects under the FAHP, the FHWA shall require the SHA to carry out the requirements of 36 CFR Part 800, and applicable Council standards and guidelines for all the SHA's minor projects that receive Federal assistance. The SHA shall implement the terms of this PA, where applicable, to fulfill its responsibilities under the Act for state funded actions. The FHWA and the MD SHPO will participate in the process as specified in subsequent stipulations.

The SHA shall continue to employ professionals trained and qualified in the fields of history, archeology and architectural history. These qualified SHA cultural resources professionals shall have the sole responsibility for implementing this PA.

III. Guidelines, Standards and Regulations

Guidelines, standards and regulations relevant to this PA and its purposes include:

• Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation: Identification (1983);
• Standards and Guidelines for Archeological Investigations in Maryland (Shaffer and Cole 1994);
• 36 CFR Part 800: Protection of Historic Properties (2004); and
• Standards and Guidelines for Architectural and Historical Investigations in Maryland (Maryland Historical Trust 2000).

IV. Projects with No Potential to Cause Effects

A. Project types: The signatories to this PA agree that the project types listed below (provided the projects are limited to the activities specified and are not part of a larger undertaking), by their nature and definition, constitute undertakings that have no potential to cause effects on historic properties [pursuant to 36 CFR § 800.3(a)(1)]. Therefore, the following actions are categorically exempt from review in compliance with Section 106. Qualified SHA cultural resources professionals shall determine whether a particular project meets the following exemption categories:

1. Mowing, seeding/reseeding, planting of annual and perennial flowers, in-kind replacement of trees and shrubs, and other ground cover maintenance activities;
2. installation or replacement/repair of fixed static signs, interconnection devices, surveillance cameras, closed circuit TV, co-location of antennae, and other minor incident and traffic management devices (not including variable message signs), accessible pedestrian signals, railroad warning devices, and improved rail crossing surfaces;
3. in-kind replacement, reconstruction, or ordinary repair or modification of existing lighting, guardrails, modern fencing, traffic and pedestrian signals, curbs and gutters, sidewalks and ramps, variable message signs, and ADA retrofit;
4. activities that do not involve construction or ground disturbance, such as preliminary engineering, training, technical studies, non-invasive inspections, and educational programs;
5. overlay, milling, grooving, repairing (concrete or asphalt patching or slurry seal), striping, or resurfacing of existing ramp, roadway, and parking lot surfaces where there will be no expansion of wearing surface; or addition of rumble strips, pavement markings (normal and raised), bus pads, bumper stops, bike racks, and snow and ice detectors to the same;
6. routine bridge and structure maintenance and repair actions, including and limited to: cleaning of the bridge; in-kind painting of bridge; in-kind replacement of bridge decking and expansion joints and compression seals; deck overlay with the same or similar materials; overlay of existing approach roads for all bridges, where there will be no expansion of the wearing surface; cleaning scuppers or other drainage conveyances; modifications of expansion joints; deck patching with in-kind material; repair of guardrails which are already attached to parapets; in-kind replacement or repair of existing modern fencing; in-kind replacement or repair of steel beam plates and/or bridge bearings; placement of grout bags; repair of cracks in superstructure and substructure with trowelable mortar; in-kind replacement of rip rap, steel caps, protective jackets, and dolphins; and other similar routine actions;
7. any bridge remedial activity to an existing concrete box culvert; or concrete rigid frame small structure, or pipe and the length of the small structure is less than 20 feet, so long as the remedial work is aesthetically and functionally in-kind and in the same footprint (no new elements or expansion);
8. routine cleaning, maintenance and repair of existing drainage, stormwater management, and water quality facilities and devices, not including projects that seek to expand or extend such facilities, and retrofitting or redesign of existing drainage facilities limited to installation of traversable grates and conversion of drop inlets to traversable designs.
9. removal of salt, contaminated soil and materials from median and shoulder; and
10. other minor actions if deemed appropriate for coverage under this PA by consultation and mutual agreement between the SHA and MD SHPO. The SHA shall maintain a list of all actions approved by this process and shall include the list with its annual audit report to the MD SHPO under Stipulation VIII. The SHA and MD SHPO will add these project types to the list in Stipulation IV during any subsequent amendments to this PA under Stipulation IX.

B. Notification and Coordination: For actions which meet the categories listed in Stipulation IV.A, the SHA shall document its finding that the action is exempt from review using the form in Appendix 1 and maintain the Appendix 1 forms in its files. The SHA shall notify the MD SHPO of its use of the Appendix 1 forms in its annual report to the MD SHPO, as specified in Stipulation VIII. The SHA does not need to provide the MD SHPO with copies of the Appendix 1 forms, unless the MD SHPO specifically requests a copy of the documentation for a particular action. Beyond the documentation noted above, the SHA is not required to take any further action in the Section 106 process for projects exempt from review.

V. Project Review — Minor Highway Projects

A. Project Types: The majority of minor highway projects are unlikely to affect historic properties. In general, these projects often have limited areas of potential effects unlikely to contain historic properties, occur largely at grade within existing rights-of-way or within minimal new rights-of-way, do not introduce new structural or visual elements, and do not require substantial ground disturbance. Therefore, the following minor highway projects will be reviewed for Section 106 purposes within the SHA and documented using the form included in Appendix 2, without further review by the Council or MD SHPO, provided:

• SHA bases its review upon information adequate to identify properties and assess projects' effects on historic properties, as specified in Stipulation V. B and consistent with 36 CFR Part 800;
• SHA decisions are based on the guidelines, standards and regulations identified in Stipulation III;
• SHA makes no evaluation of eligibility of properties for the NRHP without consulting with the MD SHPO pursuant to 36 CFR § 800.4(c); and
• SHA finds that either there are no historic properties present or there are historic properties present but the undertaking will have no effect upon them.

Minor highway project types covered by Stipulation V.A include the following (provided the projects are limited to the items specified and are not part of a larger undertaking):

1. 1) minor bridge and small structure rehabilitation, deck replacement, bridge rails, or substructure alterations where the work is confined to the bridge itself, and
   1. bridges are no older than 50 years at the date of SHA's project review, or
   2. b) the bridge has been determined ineligible for the National Register of Historic Places;
2. construction of bicycle and pedestrian lanes, paths and facilities and amenities;
3. landscaping not specified in Section IV.A.1;
4. water quality activities including but not limited to: stream stabilization and restoration (including removal of natural waterway obstructing debris or sediment), and installation of stormwater management facilities, bioretention facilities, infiltration trenches, and fish weirs;
5. construction of or improvements to rest areas, truck weigh stations, park and ride lots, composting facilities, and other highway related maintenance, storage, and office facilities, where no new right-of-way is acquired;
6. modernization of an existing highway by widening less than a travel lane or adding lanes, provided such widening does not extend beyond the limits of existing improved right-of-way;
7. correcting substandard roadway geometrics and intersections (i.e., spot improvements and roundabouts), provided such corrections do not extend beyond the limits of existing improved right-of-way;
8. minor safety related drainage improvements, including but not limited to: installation, replacement or removal of culverts and headwalls; installation, replacement and extensions of pipes; addition of pipe end sections; and installation, replacement, or repairs of storm drains and inlets;
9. fencing installation and repair, including safety fencing on bridges;
10. repair or construction of erosion control and protection measures including but not limited to: slope stabilization, slide repair, rip rap, or retaining walls;
11. noise barrier installation;
12. installation of new lighting, traffic barriers, guardrails, traffic signals, curbs, gutters, sidewalks, hazard identification beacons, and variable message signs;
13. the disposal of excess properties that do not contain structures more than 50 years of age, or have previously been determined not eligible, are not within an historic district, and have no potential for archeological resources;
14. installation, repair, or replacement of underground cable not specified under Stipulation IV.A;
15. reforestation activities;
16. wetland mitigation and/or enhancement activities; and
17. other minor actions if deemed appropriate for coverage under this PA by consultation and mutual agreement between the SHA and MD SHPO. The SHA shall maintain a list of all actions approved by this process and shall include the list with its annual audit report to the MD SHPO under Stipulation VIII. The SHA and MD SHPO will add these project types to the list in Stipulation V during any subsequent amendments to this PA under Stipulation IX.

B. SHA Review Process

1. Internal Review: For project types listed in Stipulation V.A, qualified SHA cultural resources professionals will employ a multi-disciplinary approach to implement the following internal review process, as appropriate to the project:
   • determine the project's area of potential effects;
   • review existing information (including but not limited to SHA's GIS Cultural Resources Database, Visidata, State Department of Assessment and Taxation, etc.) on inventoried properties in the area of potential effects;
   • assess the likelihood that unidentified properties exist in the area of potential effects;
   • determine the degree of existing disturbance within the area of potential effects, performing a field inspection where warranted;
   • conduct a field survey in conformance with the applicable standards in Stipulation III, where warranted;
   • determine whether historic properties are in the area of potential effects; and
   • determine whether the undertaking will result in no historic properties affected, as defined in 36 CFR Part 800.4(d)(1).
2. Eligibility Evaluations and Assessments of Effect: The SHA will make no determination of eligibility of properties for the NRHP, without consulting with the MD SHPO pursuant to 36 CFR § 800.4(c). If SHA's internal review suggests that a project may affect properties, the SHA will seek coordination on the project in accordance with 36 CFR § 800.4 through 36 CFR § 800.6 and in consultation with the MD SHPO.
3. Notification and Coordination with MD SHPO: For projects included in Stipulation V.A that do not include properties within the area of potential effects or that by their nature will have no effect on historic properties, the SHA shall document and file the finding in accordance with Stipulation V.B.5. The SHA shall use a single Appendix 2 form to document its review of an individual undertaking, but may bundle projects on a single Appendix 2 form provided the projects are all of similar scope and all occur on the same USGS 7.5' quadrangle. The SHA may request written concurrence from the MD SHPO on a determination of no historic properties affected for any project defined under this PA. The SHA shall notify the MD SHPO of its use of the Appendix 2 forms and provide a list of all projects reviewed under the Appendix 2 in its annual report to the MD SHPO, as specified in Stipulation VIII. The SHA does not need to provide the MD SHPO with copies of the Appendix 2 forms, unless the MD SHPO specifically requests a copy of the documentation for a particular action.
4. Notification and Coordination with other Consulting Parties: For projects coordinated with the MD SHPO by way of the Appendix 2 form, consultation with parties other than the MD SHPO shall be accomplished by copying the relevant local government Planning and Zoning Office. This level of consultation reflects the nature and complexity of the undertakings covered by this agreement and their effects on historic properties, and the likely interest of the public in the effects of these undertakings on historic properties. The SHA may copy other organizations at its discretion or upon request. If SHA receives comments from the other parties, SHA will provide a copy of the documentation to the MDSHPO and consult with all relevant parties to resolve the issue or handle the review under the standard 36CFR800 process.
5. Documentation: For all undertakings reviewed under this PA, the SHA will maintain records, including Appendix 1 and 2 forms, photographs and field notes. The documentation shall be publicly accessible at SHA, consistent with SHA's records retention schedules. Pertinent records for each project covered under this PA may include:
   • a description of the project and its area of potential effects;
   • the location of the project area on USGS 7.5 minute topographic maps and/or project mapping; or on mapping generated from the SHA Geographic Information System (GIS) at a scale of 1:90,000 or less for project location and 1:24,000 or less for cultural resources information;
   • the type, extent, and degree of existing disturbance within the area of potential effects;
   • the assessment by qualified SHA staff of the potential for properties within the area of potential effects, including justification, a listing of inventoried properties, and new or updated Maryland Inventory of Historic Properties forms, as warranted;
   • justification for the determination of no historic properties affected; and
   • associated notes and correspondence.

VI. Project Reviews — Other Undertakings

SHA, FHWA and the MD SHPO shall review all undertakings, with the exception of those that meet the provisions in Stipulation IV and V, in accordance with 36 CFR part 800 and the Act (where applicable) and shall include appropriate consulting parties as defined at 36 CFR § 800.2 in the consultation process.

VII. Cooperation and Communication

SHA and the MD SHPO will continue to share information developed or generated by each agency related to the identification, evaluation, management and treatment of Maryland's cultural resources.

VIII. Annual Review and Monitoring

SHA and the MD SHPO will regularly consult to review implementation of the terms of the PA. The SHA shall maintain a list of all its Appendix 1 and 2 projects covered under the PA for a 12-month period from January 1 through December 31. The SHA shall provide the MD SHPO with a copy of this list called the Appendix 1 and 2 Report by January 31 of each following year. The MD SHPO will review the Appendix 1 and 2 Report and assess the implementation of the PA for the year under review. If deemed appropriate by the MD SHPO or SHA, both parties shall meet to discuss and resolve any issues raised as a result of the review.

The FHWA, Council and MD SHPO may monitor activities carried out pursuant to this PA. The SHA will cooperate with these parties in carrying out their monitoring efforts.

IX. Amendment

Any party to this PA may request that it be amended, whereupon the parties will consult in accordance with 36 CFR § 800.14 to consider such an amendment.

X. Termination

Any party to this PA may terminate it by providing 30 calendar days notice in writing to the other parties, provided that the parties will consult during the period prior to termination to seek agreement on amendments and other actions that would avoid termination. In the event of termination, the FHWA will comply with 36 CFR § 800.4 through 36 CFR § 800.6 with regard to individual undertakings covered by this PA.

XI. Dispute Resolution

Should the MD SHPO or Council object within 30 days to any documentation submitted or actions proposed pursuant to this PA, the FHWA will ensure that the SHA consults with the objecting party to resolve the objection. If the objection cannot be resolved, the FHWA will comply in accordance with 36 CFR § 800.4 through 36 CFR § 800.6. FHWA's responsibility to comply with the stipulations of this PA for all other projects that are not the subject of the dispute will remain unchanged.

When requested by any consulting party, the Council will consider FHWA's findings under this PA. The provisions of 36 CFR § 800.9(a) on public requests to the Council will apply.

XII. Coordination with Other Federal and State Review Processes

For those projects that the SHA reviews under Stipulations IV or V that are also subject to coordination through other federal and state review processes that include the MD SHPO (such as joint federal/state permit applications to the Maryland Department of the Environment/Corps or Engineers and submittals to the Maryland State Clearinghouse for Intergovernmental Assistance), the SHA shall make a good faith effort to provide copies of the relevant Appendix 1 or 2 forms as part of its joint permit application or State Clearinghouse notification. Inclusion of the Appendix 1 and 2 forms as part of these other federal and state review processes will document the SHA's compliance with Section 106 and the Act for the associated activities and facilitate the MD SHPO's review and processing of these activities under other federal and state review processes.

XIII. Duration

This PA shall continue in full force and effect until September 1, 2017. At any time in the six-month period prior to this date, the signatory parties shall consult to consider an extension or amendment of the PA. No extension or amendment will be effective unless all parties to the PA have agreed to it in writing by amending the PA.

Execution and implementation of this PA evidences that the FHWA has satisfied its Section 106 responsibilities for all individual undertakings of minor highway projects covered under this agreement.

FEDERAL HIGHWAY ADMINISTRATION

By: Date: _
Nelson J. Castellanos, Division Administrator

ADVISORY COUNCIL ON HISTORIC PRESERVATION

By: Date: _
John Fowler, Executive Director

MARYLAND STATE HISTORIC PRESERVATION OFFICER

By: Date: _
J. Rodney Little, State Historic

Preservation Officer

MARYLAND STATE HIGHWAY ADMINISTRATION

By: Date: _
Raja Veeramachaneni, Director
Office of Planning and Preliminary Engineering

Appendix 1

<date>

Project Exempt from Review Determination

(under the Programmatic Agreement for Minor Highway Projects)

Project: <Route> <Limits>

Funding Source: <Federal/State>

Description:

<Description of proposed work.>

County: <County> 7.5" Topographic Map Name: <Quad>

Project Determined Exempt by SHA Cultural Resources Professional: <Name>

Appendix 2

Documentation of No Effect Determination (under the Programmatic Agreement for Minor Projects)

Project: <Route> <Limits>

Funding: <Federal/State>

Description:

<Description of work proposed.>

County: <County> 7.5' Topographic Map: <Quad Name>

Project Type: <1 – 17>

Actions Taken:

<Description of review activities, results of review, and conclusions.>

Very truly yours,

Bruce M. Grey
Deputy Director
Office of Planning and
Preliminary Engineering

by________________________________

Julie M. Schablitsky
Cultural Resources Team Leader
Project Planning

Attachments

cc:

<Archeologist>
<Architectural Historian>
<County Planning Organization>
<Others>