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Case Study - Delaware

FHWA and DelDOT have developed a new Programmatic Agreement that delegates responsibility to DelDOT and eliminates SHPO review on routine maintenance and repairs to highway infrastructure in Delaware.


On September 19, 2013 the Advisory Council on Historic Preservation signed a new Programmatic Agreement with the Federal Highway Administration (FHWA) for the State of Delaware.  The signatories to the PA are the FHWA, Delaware State Historic Preservation Officer (SHPO), ACHP, and Delaware Department of Transportation (DelDOT). The PA was developed to establish a more efficient approach to Section 106 compliance for Federal-Aid Highway projects in Delaware. Except for consultation with Indian tribes, which remains the responsibility of FHWA, DelDOT has been delegated responsibility to initiate consultation, and complete Section 106 review for most undertakings without the participation of FHWA. FHWA must be involved in consultation when an undertaking results in a finding of adverse effect on historic properties or when a preservation easement or covenant is used to resolve adverse effects. FHWA must also participate when DelDOT invokes the provisions for post-review discoveries, emergency undertakings, or dispute resolution.  

Two types of projects are exempted from SHPO review under the new PA: 

  • Routine maintenance and repair activities listed in Stipulation II.A require no review. 

  • Project types listed in Stipulation II.B require DelDOT qualified staff to complete identification and consultation with tribes and others as required in 36 CFR 800.4; but no SHPO review is required when DelDOT determines that there are no historic properties in the area of potential effects.

SHPO review is streamlined with the following measures:

  • As long as DelDOT consults with SHPO regarding National Register eligibility for any sites discovered in the area of potential effects, DelDOT may proceed without SHPO review when no historic properties are affected by the undertaking.

  • In many cases, DelDOT may use standard design requirements and a standard form (Appendix C) to report findings of no adverse effect to the SHPO and others.

The PA was developed through considerable negotiation among the signatory parties and serves the interests of FHWA and DelDOT in creating efficiencies in project review. It also addresses several concerns of the SHPO about the handling of Section 106 review in Delaware (e.g., effective use of preservation covenants).  FHWA also consulted with two federally-recognized Indian tribes, the Delaware Nation and the Delaware Tribe of Indians in developing the PA.  Public outreach was achieved by seeking input from targeted audiences:  local government and private historic preservation organizations, including preservation planners from New Castle, Kent, and Sussex County, the City of Wilmington, and Preservation Delaware Inc. 
View a copy of the PA here. 

For more information please contact Carol Legard, FHWA Liaison, at


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