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Washington Division, FHWA, Amended Programmatic Agreement 

DESCRIPTION OF PROGRAM OR UNDERTAKING:
The following PA was developed by the Washington Division FHWA, Washington Department of Transportation (WSDOT), and the Washington State Historic Preservation Office, (SHPO) and the Advisory Council on Historic Preservation (ACHP) to update and amend the existing Programmatic Agreement (PA) for the Federal-Aid Highway program in Washington State. The original PA was executed in June 2000. This new, amended PA includes the following provisions:

• The PA applies to all Federal-aid Highway projects, including when a local government is applicant. However, the PA does not apply to undertakings on tribal lands.
• FHWA delegates responsibility for the Section 106 review process, including consultation, to WSDOT through a finding of “adverse effect”.
• The DOT is required to employ staff that meets the professional qualifications standards in the Secretary of the Interior’s Standards.
• FHWA retains responsibility for overseeing implementation of the PA, the resolution of adverse effects, and the resolution of disputes or objections raised by SHPO or a consulting party for individual undertakings carried out under the PA.
• Streamlined Review: Exhibit B includes four categories of actions considered to have no potential to effect, or minimal potential to have effect historic properties. For the listed actions, the PA waives all requirements for outside review -- by FHWA, SHPO, and the ACHP – provided that the action is not a part of a larger undertaking. If at any time information becomes available that indicates one of these undertakings may affect historic properties, WSDOT will initiate S.106 review.
• SHPO review is required for all findings and determinations except activities in Exhibit B. 
• Tribal consultation is delegated to WSDOT under the PA, however, FHWA remains responsible for government-to-government consultation and a tribe may at any time request to consult with FHWA in lieu of WSDOT.
• Semi-Annual Review meetings will be held with WSDOT, FHWA and SHPO.

ANALYSIS OF CONSULTATION AND AGREEMENT:
The PA amendment streamlines consultation in two ways:  It delegates most of the Section 106 review process to the WSDOT, and it eliminates FHWA, SHPO, and ACHP review for specific actions that have minimal potential to cause effects to historic properties.

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. 

Updated May 22, 2008

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