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Case Study - Pennsylvania

Pennsylvania Statewide Section 106 Programmatic Agreement

Description of the Program:

On March 18, 2010, a Programmatic Agreement (PA) was executed among the ACHP, Federal Highway Administration, Pennsylvania Division (FHWA), Pennsylvania Department of Transportation (PennDOT), and Pennsylvania State Historic Preservation Officer (SHPO). The agreement streamlines the review of projects funded by the FHWA in Pennsylvania, including Transportation Enhancement (TE) projects. It replaces a PA executed with the ACHP in 1996 for minor transportation projects in Pennsylvania.

The PA includes a number of measures to streamline review of Federal-Aid Projects in Pennsylvania. Highlights include the following:

• A current Historic Bridge Inventory and Evaluation will provide individual determinations of eligibility for bridges 20 ft. long or greater. With the exception of covered bridges, stone arch bridges, and closed spandrel concrete arch bridges, all bridges or culverts less than 20 feet in length are considered individually not eligible for listing in the National Register of Historic Places.
• Most of the responsibility for carrying out Section 106 review is delegated to PennDOT, who must maintain qualified staff in each district.
• SHPO review is waived for findings of “no historic properties affected.” PennDOT is required to document its finding, notify consulting parties, SHPO, FHWA, and any participating Indian tribes or Nations, and make the documentation available for public inspection.
• When PennDOT makes a finding of “no adverse effect,” SHPO review and concurrence is required only if (1) the project requires rehabilitation in accordance with the Secretary of the Interior’s Standards for Rehabilitation; (2) there is public controversy on historic preservation issues; (3) at the request of the Cultural Resource Professional (CRP) at PennDOT; or (4) when a consulting party, FHWA, or an Indian tribe or Nation requests the SHPO’s review of the finding.
• FHWA will notify the ACHP ONLY if the undertaking will adversely affect a National Historic Landmark; where the effects to historic properties are highly controversial, or there is substantial public interest; or when PennDOT, SHPO, and FHWA are not able to reach agreement on resolution of adverse effects.
• Resolution of adverse effects may generally be documented in a Letter of Agreement among FHWA, PennDOT and the SHPO, following a prescribed format appended to the PA.
• FHWA must execute a Memorandum of Agreement when one of the potential signatories to the Letter of Agreement was not a signatory to the PA; if a proposed mitigation commitment is not included in the Letter of Agreement template in Appendix E; or if a consulting party objects to the proposed resolution of adverse effects.
• PennDOT may use standard treatments included in Appendix F to resolving effects to certain types of historic properties and may develop additional standard treatments in consultation with FHWA, SHPO, and the ACHP. Current standard treatments cover replacement of lighting, curbs, and sidewalks in historic districts; temporary geotextile and fill to protect archaeological properties during construction; and marketing of historic bridges to be replaced in historic districts. When approved standard treatments are applied, FHWA and PennDOT need not execute a Letter of Agreement or Memorandum of Agreement for that undertaking.

Analysis of Consultation and Agreement:

FHWA initiated consultation with the ACHP in October 2005. Consultation progressed slowly, with meetings among the proposed signatories: FHWA, PennDOT, SHPO, the Army Corps of Engineers, and the ACHP. Issues addressed in consultation among these parties included determining what actions should be delegated to PennDOT, what activities could be carried out by PennDOT’s consultants; exemptions from Section 106 review; FHWA funding for non-project activities (e.g., historic contexts); the status of the historic bridges survey; public involvement; and the role of consulting parties in review.

PennDOT conducted extensive outreach to stakeholders, including 12 Indian tribes with ancestral ties to Pennsylvania; the US Forest Service, and others. Several organizations participated in consultation as “consulting parties:”  the Seneca Nation of Indians, Tonawanda Band of Seneca Indians, Society for Pennsylvania Archaeology, Pennsylvania Archaeological Council, and Preservation Pennsylvania. PennDOT and FHWA received many comments from stakeholders, which were discussed and considered by the signatories. The PA incorporates language developed by the ACHP regarding government-to-government consultation with Indian tribes, and includes, by reference, a cultural resources handbook that details how the PA will be implemented by PennDOT staff.

Why this is a Good Agreement:

The resulting agreement is comprehensive and well-written, and it addresses all of the issues raised by consulting parties. A major concern of the ACHP, going into negotiations, was the role of consulting parties, as the ACHP received many requests for involvement in individual projects from local residents and preservation organizations in Pennsylvania. The PA and the Cultural Resources Handbook clarify requirements for consulting with Indian tribes and other consulting parties, and require that timely information on bridge replacement projects be made available to local governments and preservation organizations. To improve communication with consulting parties and the public, PennDOT, with the assistance of Preservation Pennsylvania, has developed an interactive online public involvement clearinghouse which will be showcased at the statewide preservation conference this spring. This and other innovative solutions to problems specific to Pennsylvania make the agreement a good one.

In addition to the primary signatories (the Pennsylvania Division FHWA, PennDOT, SHPO, and the ACHP), Preservation Pennsylvania has signed the agreement as a concurring party. FHWA expects the Seneca and the Tonawanda Seneca Nations to become concurring parties in the near future. In addition, the Pennsylvania Archaeological Council and Society for Pennsylvania Archaeology have been invited to be concurring parties.

View a copy of the signed PA here.

For more information please contact clegard@achp.gov.

Posted May 26, 2010

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