Potential Section 106 Exempted Categories or Program Comments for Federal Highway Administration Projects: National Streamlining Opportunities (2020)

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3 2.0 LEGAL AND REGULATORY AUTHORITY FOR PROGRAM ALTERNATIVES As noted above, program alternatives allow federal agencies to tailor the Section 106 process to meet their project delivery and program needs by establishing methods and approaches that are different from standard Section 106 compliance, as laid out in the Section 106 regulation. This NCHRP study examined the program comment for common types of post-1945 concrete and steel bridges and the program comment on rail properties within rail ROW. Both these program comments were prepared by the ACHP and the United States Department of Transportation (USDOT). A program comment …allows a federal agency to request the ACHP to comment on a category of undertakings in lieu of conducting individual reviews under §§ 800.4 through 800.6. The ACHP may also provide comments on its own initiative. Public participation is conducted by the federal agency requesting the comments and consultation with SHPO [or Tribal Historic Preservation Officer (THPO)], Indian tribes and Native Hawaiian organizations is conducted by the ACHP [ACHP 2019b]. The program comment involving bridges is entitled “Program Comment Issued for Streamlining Section 106 Review for Actions Affecting Post-1945 Concrete and Steel Bridges” (2012). The following is a description of this program comment from the FHWA’s Environmental Review Toolkit website: At the request of the Federal Highway Administration (FHWA), the Advisory Council on Historic Preservation (ACHP) has issued a Program Comment that will eliminate individual historic review requirements under Section 106 of the National Historic Preservation Act for common post-1945 concrete and steel bridges and culverts. The intent of Program Comment is to ensure that more unique historic bridges receive the attention they deserve while the process is substantially streamlined for common, “cookie-cutter” bridges that are unlikely to be significant for preservation in place. These bridges were constructed in vast numbers after World War II using standardized plans. Although there has been little public interest in the preservation of these common bridges and culverts, FHWA was required under Section 106, to consider and document the potential historic significance of any bridge approaching 50 years of age that might be affected by FHWA projects. The bridges listed in the “State by State List of Identified Exceptions” have been identified by their respective states as having some exceptional quality and consequently will continue to be considered individually pursuant to Section 106 of the National Historic Preservation Act, as will those post-1945 common bridges previously listed or determined eligible for listing on the National Register or located in or adjacent to historic districts [Federal Highway Administration (FHWA) 2019]. The program comment involving rail properties within rail ROW is entitled “Program Comment to Exempt Consideration of Effects to Rail Properties within Rail Rights-of-Way.” This program comment, which was released in August 2018, and amended in June 2019, …exempts undertakings that may affect historic rail properties within rail rights-of-way from Section 106 of the National Historic Preservation Act. The program comment adopts a two-pronged approach: an activities-based approach and a property-based approach. The activities-based approach details specific activities that are exempt from Section 106 review which should have minimal or no adverse effects on historic properties. The property-based approach provides an optional process for identifying excluded historic rail properties that will continue to be subject to Section 106 review while exempting consideration of effects to other rail properties [ACHP 2019c]. The ACHP and non-transportation agencies, especially the Department of Defense (DoD), have also implemented several program comments. These include, for example, program comments for “Army

4 Capehart Wherry Military Housing,” “Department of Defense Ammunition Storage Facilities,” “Program Comment for Wireless Communication Facilities,” and, most recently, “Department of Veterans Affairs Program Comment for Vacant and Underutilized Properties” (ACHP 2019b). These other agencies and the ACHP have also put in place national-level PAs. As noted at the ACHP website: Programmatic Agreements are the most commonly used program alternative.… [Section 36 CFR 800.14(b)(4) of the regulation] allows federal agencies to govern the implementation of a particular agency program or the resolution of adverse effects from complex projects or multiple undertakings similar in nature through negotiation of an agreement between the agency and the ACHP [ACHP 2019b]. These national PAs include, for example, the U.S Department of Agriculture (USDA) “Rural Development Nationwide PA for Sequencing Section 106,” the DoD “Nationwide PA for Demolition of World War II Temporary Buildings,” and the Bureau of Land Management “National PA for Compliance with Section 106.” The FHWA does not have any national PAs at this time.