Section 106 Delegations to State DOTs Through Programmatic Agreements

Focus Area

Historic Preservation/Cultural Resources


Community & Cultural Concerns




Under $99k


Under 1 year

Research Idea Scope

Section 106 of the National Historic Preservation Act of 1966 (54 USC §306108) 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 regulations at 36 CFR 800 govern how Federal agencies carry-out the requirements of Section 106, including permitting Federal agencies to enter into Programmatic Agreements (PAs) [§800.14(b)] to govern implementation of a program. To date, over 45 (CHECK NUMBER?) state Departments of Transportation (DOTs) have entered into such agreements with Federal Highway Administration (FHWA), the ACHP, and the State Historic Preservation Officer (SHPO) for their respective states. These PAs substantially streamline compliance by exempting much of the routine work from consultation. Other provisions of the various PAs permit state DOTs to consult directly with the SHPO or not at all depending on the project specific issues. NCHRP Task 91 recently collated the exemptions from Section 106 review providing a useful tool to DOTs looking to renew or expand the delegations in their respective PAs. Building on Task 91 report, it would be useful to know the extent to which other states have assumed responsibilities for Section106 compliance through the PA process. Knowing how states have approached delegation of responsibility will help other states take advantage of 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 require full consultation with SHPO or ACHP, 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 PA delegations to state DOTs. The sources for this proposed synthesis, however, would include federal PAs for transportation agencies and state departments of transportation.

Urgency and Payoff

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. Objectives The following draft research questions provide an initial framework for the study: • What Section 106 process steps have FHWA Divisions delegated to state DOTs? • What Section 106 process steps have SHPOs delegated to state DOTs? • What Section 106 process steps has ACHP delegated and to who? • At what point does FHWA retain involvement or reinsert itself in consultation? • What oversight provisions ensure quality controls are effective?

Suggested By

Anmarie Medin/Tony Opperman California Department of Transportation/Virginia Department of Transportation

[email protected] ; [email protected]