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Programmatic Agreement Buys Time for Alaska DOT to Develop a Context and Guidance for Determining Eligibility of Historic Roads
Description of the Program
In April 2009, FHWA’s Alaska Division contacted ACHP staff regarding the need to establish an alternative review process for Alaska Federal-Aid Highway projects affecting potential historic roads in the state of Alaska. Funds provided through the American Recovery and Reinvestment Act (ARRA) required the Alaska DOT to obligate funding quickly, leaving little time to resolve issues related to the National Register of Historic Places (National Register) eligibility of some of Alaska’s roads and highways. FHWA, the Alaska Department of Transportation and Public Facilities (ADOT&PF), and the Alaska State Historic Preservation Officer agreed to develop an alternative process for Alaska that would allow the state time to develop a historic context and guidance for future assessments of Alaska’s historic roads, while allowing projects unlikely to affect historic roads to proceed.
Analysis of Consultation and Agreement
With the ACHP’s assistance, FHWA, ADOT&PF, and Alaska SHPO were able to agree on reasonable measures to allow most Federal-Aid Highway projects to go forward while a historic context for historic roads in Alaska, and specific criteria for determining eligibility, are developed. The Programmatic Agreement (PA) requires FHWA and the ADOT&PF to comply with the ACHP’s regulations for all Federal-Aid projects, EXCEPT that the road itself need not be evaluated for National Register eligibility or considered in the Section 106 process, provided the project is not of a type that could significantly affect the characteristics that may make a road eligible. The thresholds for determining if a project could affect a historic road are described in Appendix A of the PA, and include specific activities subsumed under four categories: minor widening, minor road realignment, surface material changes, and new construction. The agreement does not apply to tribal lands.
In order to provide for systematic and informed decisions regarding which Alaska roads are eligible for the National Register, the PA requires that FHWA and DOT&PF develop, in consultation with SHPO and the National Park Service:
All work on these initiatives must be completed within prescribed timelines, but no later than five years from the date of execution of the PA, February 17, 2010. View a copy of the final signed PA.
The development and execution of this Agreement raised policy concerns, and highlighted the need for the ACHP to develop additional guidance in the appropriate use of a Programmatic Agreement to streamline project review. Upon reviewing the PA for his signature, the ACHP’s executive director was concerned about the use of a PA such as this for deferring decisions on eligibility, a step which is generally completed without ACHP involvement and prior to approval of an undertaking. The ACHP’s regulations allow federal agencies to determine the level of effort needed to identify historic properties, for purposes of Section 106, and to phase identification of historic properties when provided for in a Memorandum of Agreement or Programmatic Agreement executed with the SHPO (36 CFR 800.4[b]). ACHP leadership was equally concerned about the lack of a role for the National Park Service in resolving Alaska’s National Register eligibility concerns.
To address these issues, ACHP staff revised the agreement to ensure that the National Park Service is invited to participate in consultation to develop guidelines and a historic context for roads and highways in Alaska. The ACHP proposed additional revisions, clarifying that the need for the efficiencies in the PA is heightened by funding of the projects under ARRA. These changes were agreed to by all parties, and the PA was executed on February 17, 2010. Due to the circumstances of this case, the use of a PA to defer the evaluation of historic roads was considered necessary to ensure that unresolved eligibility issues do not unnecessarily delay much needed ARRA projects. This agreement, however, should not serve as a model for other states, or as a model for deferring the identification of historic properties unless, in consultation with the SHPO and the ACHP, the federal agency determines that such an approach benefits the management and consideration of historic properties in the long run. In this particular case, the collaborative approach to developing a historic context and guidance on evaluating historic roads will result in the systematic and comprehensive identification of historic roads in Alaska.
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Posted May 26, 2010