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Case Study - Kentucky

Programmatic Agreement for Routine Roadway and Bridge Construction Projects

Description of the Project:

A new statewide Programmatic Agreement (PA) for Federally-funded or approved highway and bridge projects in the Commonwealth of Kentucky went into effect on June 2, 2011. The PA was signed by the Federal Highway Administration (FHWA), Kentucky Transportation Cabinet (KYTC), the Kentucky State Historic Preservation Officer (SHPO), and the Advisory Council on Historic Preservation (ACHP).

The Kentucky Division, FHWA and the KYTC developed the PA in order to streamline Section 106 consultation on routine Federal-Aid Highway Projects in Kentucky. Under the agreement, streamlining is limited to “small-scale” projects, which include minor projects that qualify as Level 1 and Level 2 Categorical Exclusions (CEs) under the National Environmental Policy Act (NEPA). Large scale projects, or those involving major reconstruction or new construction, are not covered by the streamlining provisions of the agreement, although the KYTC is authorized to initiate consultation on behalf of FHWA for all projects.

KY I-75 Clays Ferry Bridge, Madison County-Fayette County (FHWA Photo Library)

Analysis of Consultation and Agreement:

Under the PA, the KYTC may conduct consultation with the SHPO and other consulting parties, on behalf of FHWA, except under the following exceptions:

  1. Native American consultation will be handled by FHWA.
  2. In the event of a dispute, regardless of its nature, FHWA shall be involved in the resolution in accordance with the regulations at 36 CFR Part 800.
  3. Consultation for projects where adverse effects cannot be avoided.
  4. Consultation to develop a Memorandum of Agreement (MOA) or Memorandum of Understanding (MOU)

Details regarding procedures and methods for carrying out the steps of the Section 106 process will be contained in a separate “Handbook for Implementation,” which will allow a clear separation of the procedural requirements required in the PA and implementing measures that can be modified with the mutual agreement of FHWA, KYTC, and SHPO. Certain small scale projects, identified in an attachment to the PA, are exempted from review, requiring only that KYTC document the project in accordance with the Handbook for Implementation. For those projects, no review by FHWA or SHPO is required prior to proceeding with construction, although an internal review by cultural resource specialists is required. Other small-scale projects (those not specifically listed in Attachment 1) may be handled by KYTC on behalf of FHWA, provided none of the four above exceptions apply.  The local Assistance Program is not covered by the PA.

 Why This is a Good Agreement:

The PA is uncontroversial and allows FHWA to devote its time and energy on the more controversial and complex Federal-Aid Highway projects. The types of projects that are exempted from review are unlikely to affect historic properties. They include such activities as general highway maintenance, guardrail replacement, and the installation or maintenance of highway signs. FHWA has retained appropriate oversight, and remains responsible for consultation on all large scale projects and for consultation with Indian tribes on all Federal-aid Highway projects. Additionally, our experiences with KYTC over the last few years have been very positive, indicating that they have a solid program and a good sense of stewardship.  This Agreement may serve as a model for other states wishing to delegate responsibilities to the state department of transportation and expedite the review of projects with no effects to historic properties.

View the Programmatic Agreement referenced in this study.

For more information contact Carol Legard at clegard@achp.gov.

Updated June 16, 2011

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