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Case Study - Colorado

Colorado Statewide Section 106 Programmatic Agreement

Description of Program

On May 6, 2010, the Advisory Council on Historic Preservation (ACHP) executed a Programmatic Agreement (PA) with the Colorado Division, Federal Highway Administration (FHWA), Colorado Department of Transportation (CDOT), and the Colorado State Historic Preservation Officer (SHPO). The agreement streamlines Section 106 review on routine projects in Colorado by delegating Section 106 responsibilities to CDOT for the first three steps of the four-step Section 106 review process. It allows CDOT to initiate consultation with the SHPO and other consulting parties, to complete the identification and evaluation of historic properties, and to make findings of effect as required in the regulations at 36 CFR 800.3 -800.5. The agreement also exempts from SHPO review a number of listed activities with minimal potential to affect historic properties.

The PA applies to all FHWA undertakings in Colorado, including transportation enhancements, and projects involving either FHWA funding or approval. The PA specifically provides for:

• “Screened undertakings,” which are listed in Attachment 2, receive internal CDOT review by qualified professionals, but require no SHPO review prior to approval. These are projects whose effects on historic properties are foreseeable, likely to be minimal, and not adverse.
• Linear resources (irrigation ditches, highways, trails, etc.) will be identified and evaluated for National Register-eligibility according to guidelines included in the PA.
• CDOT commits to updating its historic bridges inventory, will use determinations of eligibility from the updated inventory to complete Section 106 review, and will notify local governments and other preservation organizations of any replacement projects proposed for historic bridges. 
• The resolution of adverse effects will be carried out by FHWA in accordance with 36 CFR 800.6, although the PA does encourage FHWA and CDOT to use the NEPA process in lieu of Section 106 in accordance with 36 CFR 800.8(c).
• FHWA remains responsible for initiating consultation with Indian tribes and for government to government consultation with tribes; and
• The PA does not apply to undertakings on Indian tribal lands.

Analysis of Consultation and Agreement

FHWA initiated consultation with the ACHP in July 2009 with a draft PA developed by the CDOT in consultation with the Colorado Division FHWA and the Colorado SHPO. In the development of this agreement, FHWA solicited the views of Colorado Preservation Inc. (CPI), the Colorado Council of Professional Archaeologists, the Colorado Municipal League, Colorado Counties Incorporated, the National Trust for Historic Preservation, and 42 federally recognized Indian tribes with traditional ties to Colorado. It received comments from the National Trust for Historic Preservation, and CDOT worked with Trust staff to incorporate those comments into the PA. The PA replaces a Memorandum of Understanding (MOU) regarding minor transportation projects executed by FHWA, CDOT, the ACHP, and SHPO on February 15, 1991; and a PA for the Management and Preservation of Colorado Historic Bridges, executed among the parties on July 16, 2003. 

Why this is a Good Agreement

The PA does little to alter the review process in Part B of the ACHP’s regulations; however, it clarifies the roles of CDOT and FHWA in Steps 1-4 of the review process, detailing the areas in which CDOT is delegated responsibility for review. The agreement establishes parameters for involving consulting parties, Indian tribes, and other members of the public, including procedures for notification and participation of consulting parties and Indian tribes that go beyond what is required in the regulations. Colorado FHWA and CDOT have good working relationships with Indian tribes and the SHPO, and projects have resulted in few disputes among local communities and parties to consultation. Lessons learned in a couple of large projects (e.g., the Interstate 70 Mountain Corridor and Interstate 25 through the city of Pueblo) laid the groundwork for a model program emphasizing integrated planning, context sensitive design, and early involvement of consulting parties and affected communities. The streamlining measures in the PA should help Colorado continue to excel in these efforts.

For more information please contact clegard@achp.gov.

Posted May 26, 2010

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