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

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5 3.0 PROJECT APPROACH As previously stated, the ACHP and the FHWA have put in place two national program alternatives. One is an exempted categories approach for the Interstate Highway System, and the second is a program comment on common types of post-1945 concrete and steel bridges. The ACHP and the Federal Railroad Administration and Federal Transit Administration have also implemented a program comment involving rail properties within rail ROW. 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; the program comment on the Interstate Highway System was not part of the NCHRP project scope. For information on the application of this exempted categories program, see the FHWA’s Environmental Review Toolkit website at: https://www.environment.fhwa.dot.gov/env_topics/historic_pres/roads.aspx. Several state DOTs, in partnership with FHWA and the ACHP, have also developed state-specific Section 106 PAs whereby FHWA delegates Section 106 activities to a state DOT that are normally carried out by FHWA, with FHWA retaining legal responsibility for these activities. In addition, under these delegation PAs, state DOTs consult directly with SHPOs or not at all, depending on the project-specific issues. The latter reduces the number of undertakings requiring full consultation with SHPOs and other consulting parties. States that have taken on National Environmental Policy Act (NEPA) assignment have the legal responsibility for Section 106 compliance, to the extent defined in a NEPA assignment memorandum of agreement (MOU) between FHWA and the state DOT (FHWA 2018); and the state’s delegation PA reflects the extent of that assignment. In the contexts of these PAs, the state DOT is the “federal agency” for the purposes of Section 106 compliance. The project team for this NCHRP study surveyed state DOTs, FHWA division offices, and SHPO staff about their experiences with the post-1945 concrete and steel bridges program comment and the rail ROW program comment. The surveys also asked about potential new national program alternatives that might be of value to streamline and enhance Section 106 compliance for transportation projects. All survey participants had a choice of either completing and sending to the project team a completed survey questionnaire or participating in a telephone interview based on the questionnaire. This NCHRP project also examines state DOT use of 36 CFR 800.3(a)(1), “No Potential to Cause Effects.” The survey questionnaire for state DOTs included a number of questions on how these agencies apply this section of the Section 106 regulation. To further analyze how state DOTs employ 36 CFR 800.3(a)(1), the project team examined all 38 active Federal-Aid Highway Program Section 106 delegation PAs. This was done to see if these PAs included stipulations explicitly referencing this section of the regulation, and if these stipulations stated how this section of the regulation was to be applied. The project team received completed surveys from or conducted interviews with staff from 15 state DOTs and from eight SHPOs. The team also received five completed surveys from FHWA division offices. The project team also sent a survey questionnaire to the consultant community through the following venues: the Transportation Research Board’s (TRB) ADC50 committee mailing list and the American Cultural Resource Association (ACRA) mailing list. The team received only two completed surveys from consultants. In addition to surveying the above agencies and consultants, the project team sent a customized survey to a selection of non-transportation agencies that have developed several national program alternatives. The specific elements within these non-transportation program alternatives will not be applicable to transportation projects. However, information from these non-transportation agencies can be used as a form of best practices and lessons learned for advancing additional transportation-related program alternatives. The team received only one response from a non-transportation agency.