Section 106 Programmatic Agreements for Transportation Projects: Case Studies
Historic Preservation/Cultural Resources
Community & Cultural Concerns
Research Idea Scope
TERI Administrator Note (May 2011): AASHTO/CEE Programmatic Library covers this research idea.
Compile case studies of transportation projects for which Programmatic Agreements are used for compliance with Section 106 of the National Historic Preservation Act (16 USC 470f). Project specific Programmatic Agreements are negotiated early in planning, before the effects of the project on historic properties are fully known. Where a variety of alternatives are under consideration, where access to private property cannot be obtained until acquisition of right-of-way, or on large complex projects a front-end Programmatic Agreement can be used to establish a process for the phased identification and evaluation of historic properties, and to establish protocols for involving stakeholders in consultation as effects are identified and resolved. In Colorado, during development of a Tier I EIS for the I-70 Mountain Corridor, FHWA used Section 106 consultation and a Programmatic Agreement to engage stakeholders in developing uniform procedures for resolving adverse effects during later, Tier II environmental review. In Arizona, on long, linear projects, the Department of Transportation (ADOT) has used project-specific Programmatic Agreements to defer archaeological site evaluation and data recovery excavations until closer in time to construction, when the project design is closer to completion. As a tool for Section 106 compliance, these front-end Programmatic Agreements can help state transportation agencies with consistency in the treatment of historic properties on multi-phased projects, and such agreements are useful in completing Section 106 compliance without detailed inventory information. However, there is some risk that the deferred identification and evaluation of cultural resources leaves historic preservation concerns out of factors considered in deciding on an alternative. For example, how do decision-makers know the relative effects of alternate routes on archaeological properties unless they have completed an inventory before route selection? The compilation of case studies (not necessarily all best practices) should inform state transportation agencies about the benefits of using project specific Programmatic Agreements, what’s involved in their negotiation, and the appropriate use of Programmatic Agreements in lieu of the standard Section 106 process. Example Programmatic Agreements should be included in the report along with case studies.
Related Research (Added by TERI Administrator, April 2011)
AASHTO Practitioner’s Handbook 06: Consulting Under Section 106 of the National Historic Preservation Act; American Association of State Highway and Transportation Officials, 2007, 21p
Urgency and Payoff
Project specific Programmatic Agreements allow federal agencies and state DOTs to tailor the Section 106 review process to meet the particular needs and constraints of the project. While some states use Section 106 Programmatic Agreements on a regular basis, some very rarely avail themselves of this approach to Section 106 compliance. Case studies will inform practitioners about the appropriate use of this tool, and the benefits and/or pitfalls of deferring identification of historic properties until after the project has been approved. For those without much experience in developing Programmatic Agreements, example agreements included in the report will be valuable in understanding how to draft a good and effective Programmatic Agreement.
Carol Legard, Advisory Council on Historic Preservation