Losing the Small Stuff: A National Synthesis of Transportation Exclusions to Section 106 Review
Historic Preservation/Cultural Resources
Community & Cultural Concerns
Under 1 year
Research Idea Scope
Section 106 of the National Historic Preservation Act of 1966 ( 16 USC 470(f)) requires that Federal agencies take into account the effects of their undertakings on properties eligible for listing in, or listed in the National Register of Historic Places (“historic properties”) and afford the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment. The way Federal agencies carry-out the requirements of Section 106 is described in the regulation administering that process, 36 CFR Part 800. That regulation, however, also allows for exemptions from Section 106 review (36 CFR 800.14(c)) and exempted categories of undertakings are common elements of Programmatic Agreements (PAs) allowed by 36 CFR 800.14(b) for all Federal agencies (i.e., not just transportation agencies). Though exemptions to Section 106 review are common, any individual agency is unlikely to know what kinds of undertakings are exempted through programs of other Federal agencies, PAs, or in other parts of the country. The lack of any compilation of exemptions makes it difficult to take advantage of exemption concepts that may already be in place, concepts that can benefit project schedules and save taxpayers considerable expense. Further, by reducing the number of undertakings that enter the Section 106 process, more focus can be directed to reducing the effects of undertakings warranting review.
There is no published work related to this topic or synthesis of exclusions. The sources for this proposed synthesis, however, would include Federal PAs for transportation agencies and state departments of transportation and PAs for non-transportation agencies. As an example of the latter, the PA between the Federal Emergency Management Agency (FEMA) and the Virginia State Historic Preservation Officer (SHPO) includes transportation exclusions that would be applicable in non-emergency transportation contexts. Also, decisions from Federal agencies about what types of undertakings have no potential to affect historic properties pursuant to 36 CFR 800.3(a)(1) would also be relevant for this synthesis.
Urgency and Payoff
Federal transportation agencies and their state and local transportation partners are increasingly challenged to deliver projects faster, at a reduced cost, and with fewer people. This mandate is urgent, and a synthesis of exclusions will contribute significantly to satisfying the immediate need to “work smarter” in Section 106.
Antony F. Opperman, Virginia Department of Transportation