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

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6 4.0 RESULTS OF SURVEYS, INTERVIEWS, AND RESEARCH The surveys and interviews asked state DOTs, FHWA division offices, SHPOs, and consultants about applying the two transportation program comments and potential additional national-level program alternatives that FHWA, state DOTs, and the ACHP might be able to use to improve and expedite Section 106 compliance associated with transportation project delivery. This section highlights the key findings of these surveys and interviews. Responses to the survey questionnaire from state DOTs regarding their understanding and use of 36 CFR 800.3(a)(1) are also detailed below. The research for this project found that the use of 36 CFR 800.3(a)(1) among FHWA division offices and state DOTs is very inconsistent. In addition, this study reviewed state DOT websites to discover if and how state cultural resource management (CRM) manuals and guidance explicitly reference 36 CFR 800.3(a)(1) or discuss findings of “No Potential to Cause Effects.” Appendix A provides a summary of the survey questions and the survey and interview results. The survey and interviews were conducted from April through August of 2019. 4.1 KEY FINDINGS OF SURVEYS AND INTERVIEWS—PROGRAM ALTERNATIVES 4.1.1 Program Comment for Common Post-1945 Concrete and Steel Bridges Among the 15 state DOT respondents, three states did not use this program comment. Instead, they relied on their state delegation PAs, or their PAs on the management of historic bridges, which are based on their statewide historic bridge surveys. Those states that did use the program comment noted that it did streamline Section 106 review. They also said that they encountered no difficulties in using the program comment and found no difficulties between this program comment and complying with Section 4(f) of the Department of Transportation Act (Section 4(f)), NEPA, or other environmental laws. One state DOT encountered some user confusion about the program comment, so they developed a “How to Use” memorandum and posted it online, which helped considerably. Another state DOT is amending their minor projects PA to include a provision for bridge projects covered by the program comment. Finally, one state DOT made the interesting observation that although they use the program comment and have encountered no issues or difficulties in using the program comment, they believe it should have been “post-World War II” and not “post-1945” in its coverage. Their reasoning is that World War II ended on September 2, 1945 and that after that date, construction started to boom in the United States. As written, the program comment does not cover bridges constructed postwar from September 2, 1945, to December 31, 1945. Four of the five FHWA division offices surveyed responded to this question on the survey. One noted that at the time of this NCHRP survey, they were working to implement the program comment in their state. Another said that they worked with the state DOT to implement the program comment, and that Section 106 and Section 4(f) reviews were streamlined as a result. One division office has used it only one time for an off-system bridge and the program comment did speed up project delivery. They also noted, however, that all on-system bridges in their state are already covered by the state historic bridge survey and review process. The only difficulty they encountered was some initial lack of experience with using the program comment. Finally, one of the division offices noted that the state DOT did not use the program comment because the state DOT already addressed these classes of bridges through the statewide bridge survey.

7 One consultant who responded to this question on the survey noted that they have seen some confusion among their clients who use the program comment. This consultant noted the following:  It is unclear whether steel box girder is a common bridge type.  One client initially chose not to participate originally because it was thought that participation would limit independent decision-making. This was reconsidered and the program comment is now being used by the client.  Different levels of effort are used by states to come up with common bridges with exceptional significance. Clearer guidance could have made the application more uniform.  Should a state revisit this at some time to address the recent past, such as during an inventory update? For example, several states that participated in the program comment considered bridges through a certain timeframe and are not sure if they need to reevaluate as inventories are updated or time has elapsed. Three SHPOs who responded to this question on the survey stated that they did not use this program comment. As with some of the state DOT respondents, the SHPOs noted they used their Section 106 delegation PAs or historic bridge PAs to address these classes of historic bridges. Four SHPOs responded that they used the program comment and that it streamlined Section 106 reviews. They also said they have encountered no difficulties in using the program comment. 4.1.2 Program Comment to Exempt Considerations of Effects to Rail Properties Within Rail ROW Most of the survey respondents have not used this program comment (one SHPO did not respond to the questions about this program comment). Two state DOTs noted that they were still learning about this program comment and were looking for ways to use it. Another state DOT said that they see limited use for the program comment. Two of the state DOTs said that they have used this program comment one time each, and that it did streamline the Section 106 review on those projects. They did not encounter conflicts among the program comment and Section 4(f), NEPA or other laws. Three of the eight responding SHPOs said they have not used the program comment. Three SHPOs that have applied the program comment said that it was hard to use. They also had concerns about the non- reporting provisions of the program comment and the lack of guidance on how to apply the program comment. Four of the five responding FHWA division offices responded to the questions about this program comment. One simply stated that they had not used this program comment. Another had not used it because it does not apply to inactive or abandoned ROW, so they do not see much apparent usefulness in applying the program comment in their state. One division office has used the program comment successfully on a railroad line owned by the state DOT. 4.1.3 Possible Program Alternatives for Ubiquitous Properties Most respondents identified the need for a program alternative for several ubiquitous properties; however, based on the survey and interview results, identifying the appropriate program alternative for these properties, in the context of the current study, is problematic. The surveys and interviews did not clearly indicate which type of property or properties should be the primary focus of a new national program alternative. The following is a list of the problematic property types noted by the survey respondents.

  8  Historic roads and routes  Local road networks  Buried brick streets, streetcar lines, and trolley lines/rail  Abandoned railroad corridors  Ferry vessels and terminals  Airports and certain types of projects/actions within an airport property  Trails and trail programs  Irrigation systems  Levees, berms, pipelines, telephone lines, power lines, and other utility distribution systems  Ditch and canal systems  Common post-World War II strip malls and service industry buildings  Post-World War II commercial properties built to standard plans  Motor vehicles and farm equipment  National contexts for postwar commercial properties, churches, and schools  Post-World War II rural farmsteads and homesteads, and associated archaeological sites  Pre-World War II rural farm above-ground properties  Historic archaeological sites  Unassociated twentieth-century refuse dumps and scatters  Trash dumps and scatters of an undetermined age  Transportation Alternatives Program (TAP) projects The above is a wide-ranging list of resource types; however, linear resources, such as historic roads, local roads, streets, abandoned railroad corridors, and trails, are prominent. The 20 bulleted items above potentially encompass 15 different types of linear resources. Given this response on problematic resource types, the project team decided to limit the following discussion to linear resources. Nine of the 15 state DOT respondents expressed support for national program alternatives on linear resources. Three stated that they had no preference whether this was pursued as a program comment or as exempted categories; four preferred a program comment; and two preferred exempted categories. Four of the eight SHPO respondents supported a program alternative for linear resources, with all four expressing that they had no preference whether this was pursued as a program comment or as exempted categories. One consultant noted no preference whether this was pursued as a program comment or as exempted categories. Three of the five FHWA division offices responded to the question on ubiquitous resources, with one expressing interest in pursuing a program comment. The other two stated that they had no preference whether this was pursued as a program comment or as exempted categories. In summary, of the 30 respondents on this topic, 17 affirmed support for pursuing a program alternative for linear resources. Two respondents preferred doing this via exempted categories and five preferred using a program comment. Ten respondents did not state a preference for either approach. Some of the respondents suggested specific types of program alternatives, following the examples of existing program alternatives. Some survey respondents suggested the use of an exempted category like the one for the Interstate Highway System, or a program comment along the lines of the one for common post-1945 concrete and steel bridges. One SHPO respondent suggested the use of standard treatments for irrigation systems. Although there is support for some type of program alternative for linear resources, there is no clear consensus on the type of program alternative or for a priority linear resource. A total of 17 out of 30

  9 responses expressed concerns about linear resources; historic roads and routes were mentioned nine times and irrigation systems were mentioned five times. The project team suggests that if agencies are interested in pursuing a program alternative, it should focus on the ubiquitous property type that is of greatest concern among state DOTs, SHPOs, and FHWA division offices. Additional outreach is needed to determine the highest priority property type (or types). 4.1.4 Possible Program Alternatives for Post-World War II Housing Fifteen respondents from state DOTs responded to the survey questions about this possible program alternative. Thirteen state DOT respondents affirmed that they were in favor of a program alternative for post-World War II housing. Of those, six stated that they had no preference whether this was pursued as a program comment or as exempted categories; three stated that they supported either a program comment or exempted categories approach, and three preferred this done via a program comment. One preferred the use of an exempted categories approach. One state DOT respondent commented that such a program alternative would probably be more limited than what states could accomplish through their state delegation PAs. This respondent also noted that a program alternative would certainly be useful to states without a delegation PA. Another state DOT respondent supportive of the idea of a program alternative suggested approaching it like the program comment for post-1945 concrete and steel bridges; another supported the use of a program alternative and noted that any program alternative must include guidance. One state DOT respondent believes that exempted categories are easier to implement but that the range of postwar housing would make that difficult to accomplish. This respondent also questioned how the program comment would address neighborhoods and stated that the success of any program alternative would be directly related to the level of background research conducted by those developing such an approach. One state DOT respondent indicated they would not be in favor of a program alternative at this time for this class of properties. Another state DOT respondent stated that it would be more effective to deal with this property type at the state level under a state-specific PA. Four of the SHPOs stated that they would not be in favor of pursuing a program alternative for this class of properties. One SHPO said that there is no real agreement in their state on whether to approach this property type from a national perspective, and that views on this issue were very mixed. Only one SHPO stated that they would support such an approach, especially for mobile homes and tract homes, but did not state a preference for either a program comment or an exempted categories approach. Two FHWA respondents simply stated that they were in favor of such an approach and did not state a preference for either a program comment or an exempted categories approach. One stated that they were not in favor of pursuing a program alternative for this class of properties at this time. The other FHWA respondent thought the exempted category approach would be easiest from an implementation standpoint but also thought that such a program alternative was not feasible. They believe that it would depend on how the program alternative was written. If it were unclear or cumbersome, they would be in favor of continuing to make decisions under their state-specific PA. One consultant responded with a recommended approach for a program comment or other program alternative. This consultant did not state a preference for either a program comment or an exempted categories approach. They also noted the following.  Consider applying an exceptional significance standard to individual houses; for example, the home must be associated with a significant person or represent high style architecture.

  10  Use NCHRP research guidance to help define exceptional.  Recognize that most significant housing will be represented as a historic district rather than individual houses.  Require eligible individual properties to have state or national significance rather than local significance.  Require states to develop post-World War II housing contexts to support decision-making. This would establish the criteria for one district to be eligible over another district within the same metropolitan area or state. In summary, the majority of survey respondents generally affirmed support for pursuing a program alternative for this resource category, either through a program comment or exempted categories. However, it should be noted that even though this includes a small sample of SHPOs, the majority of SHPOs that did respond (four out of six) did not support this. 4.1.5 Possible Program Alternatives for Classes of Minor Projects There was a considerable amount of overlap in responses from the state DOTs, FHWA division offices, SHPO offices, and consultants regarding classes of minor projects, a clear indication that many of the projects and actions listed below are of concern across the country. Several of the respondents from state DOTs and SHPOs, along with one FHWA division office and one consultant, stated that these classes of minor projects and actions are already handled in their state delegation PAs, and that the actions listed in these PAs can be easily modified. One SHPO stated that state delegation PAs could be looked at to develop exempted categories of minor projects at the national level. Although several respondents stated that they preferred to address such actions and projects via state delegation PA and not through a national program alternative, there is nevertheless support for a national program alternative. Eleven of the 15 respondents from state DOTs support pursuing a national program alternative for classes of minor projects. Of those, three respondents made no preference for either a program comment or an exempted categories approach, six stated a preference for exempted categories, one stated either a program comment or an exempted categories approach would be fine, and one preferred a program comment. Three of the five respondents from FHWA division offices are supportive of a national approach for these classes of projects. One made no preference for either a program comment or an exempted categories approach, one preferred a program comment, and one preferred exempted categories. One consultant responded in support of using exempted categories to address these classes of projects and actions. Five of the eight SHPOs support pursuing this nationally. Two preferred doing this through an exempted categories approach, and two preferred using a program comment approach. One expressed no preference for either a program comment or an exempted categories approach. Below are the most common projects and actions mentioned by respondents that could be included in a national program alternative.  ADA, curb ramp, and safety projects in historic districts

  11  Buried brick street and streetcar/trolley rail remnants  Traffic-calming measures  In-kind landscaping, brush removal, mowing, spraying  Bridge deck and substructure rehabilitation on non-eligible bridges  Beam end and bearing replacement on non-eligible bridges  Routine roadway maintenance: milling and paving, signal upgrades and repair, signage, pavement overlays, sealing, striping  In-kind replacement of roads  Projects confined to existing road and in-slope areas  Streetscape improvements in non-historic areas  In-kind replacement of modern materials (e.g., concrete sidewalks, curbs)  Rural pedestrian facilities  Bicycle, bus, and pedestrian facilities and bus shelters  Non-historic lighting and lighting in non-historic areas  Intelligent Transportation Systems (ITS)  Connected vehicle technology installation  Autonomous vehicle infrastructure within existing ROW In summary, of the 30 respondents, 20 affirmed support for pursuing a program alternative for minor projects. Ten respondents preferred doing this via exempted categories, four preferred using a program comment, and one respondent was clear that either a program comment or an exempted categories approach would be fine. Five respondents, while stating support for pursuing a program alternative for minor projects, did not explicitly state a preference for either approach. 4.1.6 Responses from Non-Transportation Agencies The survey questionnaire for non-transportation agencies consisted of only two questions focusing on lessons learned from developing and implementing program alternatives. As noted above, the project team received only one response from a non-transportation agency staff member. The agency staff person did respond to the second question: The survey asked:  Please describe any lessons learned in the use of the agency Programmatic Agreement. For example, has this program alternative streamlined Section 106 compliance and project delivery, and if so, how? The survey respondent (who is a CRM specialist) noted that the biggest lesson was that the PA does not address the current demand from inside the agency for additional relief from Section 106 compliance. According to the respondent, some personnel wait until late in the NEPA process to engage in Section 106 compliance, and then expect that the PA will prompt an immediate response. When it becomes clear that additional compliance work is needed, those individuals fault the PA. To address this problem, the respondent stated that the current PA overlooked the opportunity to enforce a requirement for early Section 106 compliance in the project planning process. 4.2 KEY FINDINGS OF SURVEYS, INTERVIEWS, AND ANALYSIS OF DELEGATION PAs—APPLICATION OF 36 CFR 800.3(a)(1), “NO POTENTIAL TO CAUSE EFFECTS” As stated in the regulation, 36 CFR 800.3(a)(1) is applied without any consultation:

12 If the undertaking is a type of activity that does not have the potential to cause effects on historic properties, assuming such historic properties were present, the agency official has no further obligations under section 106 or this part [ACHP 2019a]. All 15 state DOT respondents provided information on their agency’s use of 36 CFR 800.3(a)(1):  One state DOT has no process at all for this Section 106 finding; they have never used this section of the regulation and stated that it was not discussed during development of their Section 106 delegation PA.  Twelve state DOTs have documented this section of the regulation as part of their delegation PAs.  Another state DOT has no formal process but has consulted with FHWA and SHPO regarding this section of the regulation over the years. They are including it as part of their Section 106 delegation PA under development.  One state DOT has a formal internal process but is only now discussing this aspect of the regulation with the FHWA division office and SHPO as part of developing their Section 106 delegation PA.  Possibly the most interesting response is from a state DOT with no delegation PA. This state DOT has created a formal process for utilizing this section of the regulation as part of their cultural resource manual. This process was developed in consultation with FHWA and SHPO; this Section 106 finding is very useful because the state has neither a delegation PA nor prospects for a developing a delegation PA.  Eleven respondents specifically stated that using this Section 106 finding has streamlined their compliance process, whether part of a delegation PA or as an internal process. 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. It also served as an interesting addendum to the survey responses discussed above. Ten of these PAs stipulate that qualified state DOT staff can make findings of “No Potential to Cause Effects,” pursuant to 800.3(a)(1), and then document this finding in the project file. This step completes the Section 106 process for these projects. These PAs do not specify the decision-making process behind this finding. Eight additional PAs have stipulations stating that qualified state DOT staff can make findings of “No Potential to Cause Effects,” pursuant to 800.3(a)(1), but these PAs list the types of projects to which this section of the Section 106 regulation can be applied, and these lists include both construction and maintenance projects. These lists are included in the body of the PA or as an appendix or attachment to the PA. Fifteen PAs make no reference to 800.3(a)(1) and do not explicitly discuss a finding of “No Potential to Cause Effects.” One state PA does include the wording of this finding but makes no reference to 800.3(a)(1). Finally, four state PAs include “findings” that are not formal Section 106 findings as described in the regulation. These are “no properties affected,” “No Potential to Cause Adverse Effects,” and “Little or No Potential to Cause Effects.” The survey results and the analysis of the active delegation PAs demonstrate an inconsistent use of 800.3(a)(1), and the use of “findings” that are variants of this formal Section 106 finding. The analysis of

13 the active delegation PAs also shows that many state PAs do not even include the use of this Section 106 finding. The reason is not clear at this time. In addition, based on a review of state DOT websites, only 11 state CRM manuals and guidance explicitly reference 36 CFR 800.3(a)(1) or discuss findings of “No Potential to Cause Effects.” Furthermore, how these documents address this part of the regulation varies.