CaseStudy:Development of a programmatic agreement for broadband grant programs

The Broadband Technology Opportunities Program (BTOP) and Broadband Initiatives Program (BIP), receive funding from the American Recovery and Reinvestment Act of 2009 (ARRA) and are designed to bring broadband communications capability to rural, unserved, and underserved communities.

Rural Utilities Service (RUS) and National Telecommunications and Information Administration (NTIA) were appropriated more than $7 billion for grants and loans to support the development of broadband communications infrastructure by the ARRA. The agencies approached the ACHP in Spring 2009 to determine how Section 106 compliance could be streamlined for broadband projects. BIP and BTOP may fund, among other activities, the installation of new cable and the construction of telecommunications towers.

RUS and NTIA faced significant challenges to following the regular, four-step Section 106 review process due to strict time constraints for the obligation of funds imposed by ARRA. Also, applicants who plan broadband network expansion projects submit applications to RUS and NTIA with general service area information. Recipients will not develop detailed corridor location information until their projects are funded. Attempting to complete the Section 106 review process prior to the agency’s funding decisions, RUS, NTIA, and the ACHP realized, would lead to potentially wasted effort on the part of applicants as well as State Historic Preservation Officers (SHPOs), Tribal Historic Preservation Officers (THPOs), tribes, and other consulting parties that might be asked to provide comments on areas well beyond the eventual Area of Potential Effects for a BIP or BTOP project. This approach would not expedite the release of ARRA funds to improve broadband access and create jobs in rural and underserved communities. Following extensive discussions about the nature and coordination of RUS’s and NTIA’s programs, application procedures, and time limitations, the ACHP advised that a nationwide Programmatic Agreement (nPA) was the vehicle most likely to address the agencies’ Section 106 compliance needs. An initial approach proposed shortened review periods to complete the Section 106 process during the application process but was abandoned following negative reaction from SHPOs and tribes. The finalized nPA defers Section 106 review (but follows the regular four-step process and its timelines) by means of a binding condition on the agencies’ awards. RUS and NTIA may withdraw awards should the Section 106 process not be completed satisfactorily.

The nPA further formalizes commitments on the part of RUS and NTIA to require their applicants to initiate Section 106 consultation no later than 90 days after the announcement of an award, and to encourage applicants to design projects in ways that avoid adverse effects to historic properties. As RUS and NTIA have authorized their applicants to initiate Section 106 consultation with SHPOs/THPOs, a provision requiring the agencies to provide guidance and federal agency contact information about Section 106 compliance was critical to the National Conference of State Historic Preservation Officers’ support of the initiative. Those activities carried out with BIP and BTOP assistance that do not have the potential to affect historic properties are identified in the nPA as not subject to Section 106 review. These include the location of broadband cable over existing power lines and sustainable broadband adoption projects limited to the purchase of computer equipment, training, and awareness efforts.

RUS and NTIA’s Section 106 compliance approach for broadband ARRA projects works in concert with the Program Comment, adopted by the ACHP in October 2009, for communication facilities construction and modification.(See External Link.) Should the BIP or BTOP programs provide funding assistance for the construction, modification, or collocation on a telecommunications tower subject to Section 106 review by the Federal Communications Commission, the Program Comment provides that RUS or NTIA do not have to carry out a second, duplicative review on the tower component of that undertaking.

The ACHP believes that the nPA’s approach responds appropriately to the unusually compressed timeframes of the ARRA by allowing RUS and NTIA to conduct a Section 106 review according to the process set forth in the ACHP’s regulations (36 CFR Part 800) after they award BIP or BTOP grants and loans. While this approach to National Historic Preservation Act compliance is unusual, the circumstances of ARRA funding have mandated the development of new, flexible means of ensuring that the views of SHPOs/THPOs, tribes, Native Hawaiian organizations, and others about historic properties have a place in expedited planning and grant-making procedures.