CaseStudy:Programmatic Agreement for Federal-Aid Highway Projects in Pennsylvania

The Pennsylvania Division, FHWA, is finalizing a new statewide Programmatic Agreement for the Federal-Aid Highway Program. The Programmatic Agreement, which streamlines the historic preservation review of projects funded by the FHWA, will replace an existing Programmatic Agreement that is limited to minor projects.

Details
Consultation on a new Programmatic Agreement (PA) was initiated with the Pennsylvania State Historic Preservation Officer (SHPO) and the ACHP in May 2007. The Pennsylvania Department of Transportation (PennDOT) and the Federal Highway Administration (FHWA) consulted extensively with the public, organizations concerned with historic preservation, and Indian tribes that have traditionally inhabited what is now Pennsylvania. The PA, and its accompanying Cultural Resources Handbook, requires PennDOT to continue to work with tribes and consulting parties and ensure that the public has an opportunity to comment as individual cases are reviewed.

Bridge replacement projects in Pennsylvania have been particularly controversial, with significant delay in concluding environmental review when a local preservation organization objects to the demolition of a historic bridge within its community. To help address this issue, the Cultural Resources Handbook requires PennDOT to notify potentially interested local governments and preservation organizations regarding bridge replacement projects early in planning, and provide sufficient opportunity for consultation to resolve concerns raised in the Section 106 review process.

The new PA delegates to PennDOT much of FHWA’s responsibility for complying with Section 106. Under its terms, FHWA is required to become involved in consultation only when an undertaking will adversely affect a historic property, or when a dispute arises in the review of an individual undertaking. The agreement takes a two-tiered approach to exempting certain minor projects from Section 106 review when they involve little to no potential to affect historic properties. Activities that may be exempted from review by district designees include those that require no expertise to evaluate (e.g., activities within the existing roadbed and disturbed median). Other exemptions require review by a PennDOT cultural resource professional to ensure that the activity will not disturb archaeological sites or other historic properties.

The PA streamlines review by eliminating case-by-case review by FHWA and the SHPO when no historic properties will be affected. SHPO review and concurrence is required only when the project may have an adverse effect, when the project requires rehabilitation in accordance with the Secretary of the Interior’s Standards for Rehabilitation, or when there is public controversy on historic preservation issues. The PA authorizes PennDOT to initiate consultation with tribes, provided each tribe agrees; however, FHWA will meet its responsibility for government-to-government consultation with federally recognized tribes by intervening in consultation when a tribe so requests.

The PA also limits FHWA’s need to notify the ACHP about findings of adverse effect to:
 * 1) situations in which the undertaking may adversely affect a National Historic Landmark;
 * 2) where the effects to historic properties are highly controversial or there is substantial public interest;
 * 3) when PennDOT, SHPO, and FHWA are not able to reach agreement on resolution of adverse effects.

The ACHP anticipates the new PA will be executed by March 2010.