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Example Statewide PA Amendment - Washington Division
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Washington Division, FHWA, Amended Programmatic Agreement
DESCRIPTION OF PROGRAM OR UNDERTAKING:
ANALYSIS OF CONSULTATION AND AGREEMENT:
Under the terms of the amended PA, FHWA delegates responsibility for initiating consultation with Indian tribes to WSDOT. Indian tribes with historic ties to lands in Washington State have been consulted and they have agreed to this approach, but are not invited to be signatories to the PA. Nor does Washington FHWA have signed MOUs with all of the affected tribes.
To address the government-to-government relationship between FHWA and Indian tribes, FHWA incorporated into the PA language specifying conditions under which WSDOT may initiate consultation with Indian tribes. Upon execution of the PA and annually thereafter, FHWA will send a letter to each Indian tribe in Washington State, as well as to Indian tribes outside the State but with interests in historic properties in the State, notifying them of the execution of the Agreement, transmitting a copy of the Agreement, and giving Indian tribes the option of consulting directly with FHWA. Upon receipt of a written request from an Indian tribe to consult with FHWA in lieu of or in addition to WSDOT, FHWA shall consult with that Indian tribe for the particular undertaking or program.
WHY THIS IS A GOOD MODEL FOR OTHER STATES
The amended PA is a good example for other states that wish to develop a PA to detail a delegation of responsibility to the DOT. It is clearly written, concise, accurately details the various responsibilities of FHWA and the WSDOT, and brings the program up to date with the current regulations at 36 CFR Part 800. As more and more responsibility is delegated to States in the Federal Aid Highway Program, this agreement includes language needed to allow the state DOT to initiate consultation with Indian tribes, while addressing the government-to-government relationship of FHWA and such tribes. The delegation of tribal consultation to the DOT cannot be done without the agreement of affected Indian tribes, preferably in writing. In developing the Washington Statewide PA amendment, FHWA and WSDOT consulted with tribes, and the PA includes provisions for the FHWA to conduct consultation with a tribe if and when a tribe so wishes.