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Case Study - Washington State

Statewide PA regarding Federal-Aid Highway Projects on National Forest System Lands in Washington

Description of Program:

A new Programmatic Agreement (PA) was develop by the Federal Highway Administration (FHWA) and US Forest Service (FS) to define roles and responsibilities for Section 106 consultation for Federal Aid Highway projects occurring on National Forest System (NFS) lands in the state of Washington. FHWA provides funding for projects through the Federal Aid Highway program, and project review is administered by the Washington State Department of Transportation (WSDOT). For projects crossing Forest lands, the FS is required to authorize the use of right-of-way for the project in the form of  a “consent for appropriation” of federal land.  In such cases, the agencies have agreed that FHWA is the lead federal agency for completion of Section 106 and that WSDOT may act on FHWA’s behalf in carrying out certain steps of the Section 106 process.

Analysis of Consultation and Agreement:

The PA was executed on January 13, 2012 among the FHWA, WSDOT, Washington State Historic Preservation Officer (SHPO), and the Advisory Council on Historic Preservation (ACHP). Under the PA, FHWA is the lead federal agency for compliance with Section 106 for transportation projects on FS-administered lands. FHWA has designate the Washington State Department of Transportation (WSDOT) to carry out certain activities, including initiating and conducting consultation with federally-recognized Indian tribes and other consulting parties, determining the Area of Potential Effects (APE) for undertakings, conducting cultural resource surveys, and recommending determinations of eligibility and effect on behalf of FHWA.

The delegation of responsibility for consultation with federally-recognized Indian tribes is consistent with procedures in a larger, statewide PA for the Federal Aid Highway Program in Washington State.  WSDOT may only initiate and carry out consultation with Indian tribes if tribes agree to do so. The PA requires that WSDOT and FHWA honor any request from an Indian tribe to consult directly with FHWA.

In order to streamline review, the PA identifies undertakings that have “minimal potential to cause adverse effects to historic properties” (Exhibit 2). Certain undertakings do not require Section 106 review by the SHPO or Forest Service Heritage Program Manager, provided background research indicates that there are no known historic properties or eligible that could be affected by the undertaking. Activities in Exhibit 2 include actions such as roadway surface replacement, installation of traffic control devices, in-kind emergency repairs, rock removal and stabilization activities, and use previously disturbed areas for temporary construction staging.  A second list of WSDOT activities are exempted from SHPO review (also contained in Exhibit 2), but they require coordination with the Forest Service Heritage Program Manager to determine the appropriate level of identification.

For undertakings not listed in Exhibit 2, WSDOT will complete identification and evaluation of historic properties in coordination with the Forest Service and other consulting parties, if any. If historic properties may be affected by a Federal Aid Highway project, WSDOT will initiate consultation in accordance with 36 CFR Part 800, involving the FS, SHPO, affected Indian tribes, and other consulting parties.


Why Is This A Good Agreement?
The primary purpose of the Agreement is to establish a protocol for coordination with the Forest Service on Federal-Aid Highway Projects occurring on FS-administered lands.  The PA provides for WSDOT to initiate, and in most cases, carry out Section 106 review. In addition, the PA streamlines consultation and the Section 106 review process for certain projects with minimal potential to affect historic properties. With little risk causing inadvertent damage to historic sites, the PA should save WSDOT, FHWA, and FS considerable time and money in processing minor projects with no historic properties affected.

View the Programmatic Agreement referenced in this study.

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Updated April 17, 2012

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