Improving the Efficiency and Consistency of Section 106 Compliance for State DOTs: Strategies for Project-Level Programmatic Agreements (2021)

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3 Federal regulation 36 Code of Federal Regulations (CFR) 800 establishes the process for how a federal agency complies with Section 106. Section 106 allows a federal agency to use a “program alternative,” as described in 36 CFR 800.14, to tailor its Section 106 compliance to its needs and programs. One program alternative listed under 36 CFR 800.14 includes PAs. These agreements can be used to resolve adverse effects from certain complex project situations or multiple undertakings. As such, NCHRP Project 25-62 provides state DOTs, FHWA, and SHPOs practical guidance for the application, preparation, and execution of Section 106 project-level PAs. A definition of project-level PAs is provided below along with various reasons agencies use this type of agreement document. Also provided is a brief overview of the questions to consider in determining whether a project-level PA is appropriate for a given project. A1. What is a project-level PA? The majority of Section 106 agreement documents executed by federal agencies and consulting parties are either Memoranda of Agreement (MOAs) or PAs. MOAs are typically used for projects with a defined beginning and end, when adverse effects to historic properties have been identified, and agencies have agreed to resolve adverse effects through mitigation. Section 106 PAs generally fall into two categories: program-level (or delegation) PAs and project-level PAs. Program-level PAs establish a customized Section 106 compliance process for common types of undertakings, properties, or frequently encountered effects and are not tied to a specific project. Project 25-62 does not include analysis or recommendations for program-level PAs or MOAs; for additional information on these agreements, refer to NCHRP 25- 25/Task 107 or the ACHP website at www.achp.gov. Project-level PAs establish a customized compliance process for a single undertaking and are typically used on projects that are large, complex, phased, or where historic properties or effects are unknown at the time of agreement execution. A project-level PA is a formal, legally binding agreement between signatories for consultation, review, and compliance with Section 106 for a specific project. These agreements are used when, prior to approving the undertaking, the federal agency cannot fully determine how a particular undertaking may affect historic properties or there are unknowns regarding the location or significance of historic properties. For the purposes of this report, historic properties refers to the definition in the Section 106 regulations (800.16(l)), which includes prehistoric or historic districts, sites, buildings, structures, or objects included in, or eligible for inclusion in, the National Register of Historic Places (National Register), as well as artifacts and remains located within such properties, and traditional religious and cultural properties of importance to a Tribe or Native Hawaiian Organization that meet the National Register criteria.

4 Standard components in a project-level PA include the following (see Figure 2): Figure 2. Standard components in a project-level PA. A2. Why agencies use project-level PAs Project-level PAs streamline and expedite the environmental review process and provide DOTs with greater flexibility in decision making regarding adverse effects to historic properties and defining appropriate mitigation. These agreement documents enable signatories to establish timeframes for the Section 106 process, expedite review and decision making, negotiate project concerns early in the process, and provide a way to implement creative solutions. Project-level PAs also facilitate completion of the environmental review process before historic properties or adverse effects are identified by establishing a mutually agreed- upon framework to address throughout the course of the project. Most project-level PAs are developed because an undertaking has multiple alternatives, and the lead agency wants to conduct historic property surveys after an alternative is selected. Conducting surveys for multiple alternatives can be expensive and unnecessary. Successful project-level PAs depend heavily on the relationships between consulting parties and the mutual trust that must exist among them to execute this type of document, as well as the full and careful implementation of the stipulations contained in the PA. DOTs that have strong relationships with SHPOs and other consulting parties routinely use project-level PAs to their greatest benefit. Project-level PAs are especially useful on large or complex projects, projects that are funded or implemented in phases, when there are many signatories, or when Section 106 consultation needs to be customized to meet the needs of a specific project. Another important use for project-level PAs is to avoid misunderstandings between DOT environmental and cultural resource staff, contractors, and engineers. Successful project-level PAs clearly outline and define terms and responsibilities related to the commitments made for protecting historic properties or mitigating potential adverse effects to historic properties up front. Project-level PAs can provide a framework for developing additional agreement documents, such as MOAs or supplemental agreements. They are often used for Tier 1 EISs, which allow federal agencies to make decisions regarding proposed projects when funding has not yet been identified, or for projects that involve

5 a large geographic area or long corridor. Tiered National Environmental Policy Act (NEPA) documents also allow more flexibility in developing Section 106 PAs than the process followed in formal EISs. After approval of the Tier 1 document, agencies embark on Tier 2 environmental studies for discrete portions of the project as funding is obtained. The project-level PA developed under Tier 1 may include a process to develop supplemental agreements or MOAs with the Section 106 consulting parties as funding is available and projects are developed. B. When is a project-level PA developed? Preparation of the project-level PA can begin after initial consultation has occurred with Section 106 consulting parties. The lead agency determines project deadlines and develops a schedule for planning, drafting, executing, and implementing the project-level PA. Before the PA draft is developed, the agency should discuss the project with other signatories and Section 106 consulting parties, including: • The undertaking’s draft Area of Potential Effects (APE) • Efforts to identify historic properties within the APE • Plans for addressing and mitigating potential adverse effects to historic properties Agencies typically coordinate the Section 106 and NEPA document reviews for Environmental Impact Statements (EISs) or Environmental Assessments (EAs) and PAs at the same time to satisfy public involvement, review, and comment under Section 106. This usually includes submitting the draft PA with the draft EIS or EA for signatories and consulting parties to review . Coordination on the project-level PA and sequencing its implementation with the overall project environmental schedule takes place as early as possible to help agencies meet project timelines. Provided below is a checklist for determining whether a project-level PA is appropriate for a given project.

6 A. Things to consider:  Is there an expedited schedule for an environmental document that needs approval before completing Section 106?  Are agencies agreeable to signing a project-level PA?  Is there potential for the project to adversely affect historic properties, whether known or unknown at commencement of project? If yes to any or all above, then proceed to section B B. Project types and situations that may benefit from a project-level PA  Large, complex, undertaking with potential impacts to a large geographic area (e.g., involving two or more states or a long transportation corridor)  Project funding is not identified and the undertaking will be executed or funded in phases (e.g. Tier 1 Environmental Impact Statement or Design/Build delivery)  The locations of potential historic properties are unknown  The project may impact numerous historic properties eligible for or listed in the National Register of Historic Places and the effect is unknown  Project requires a customized Section 106 process due to unknowns or unique project issues  Project will include multiple alternatives, and the lead agency wants to conduct historic property surveys after an alternative is selected to save time and costs. If any of these apply then your project may benefit from a project-level PA to streamline the compliance process, facilitate early consultation, reduce project costs, and/or reduce review times by agencies.

7 C. Organization of this report This report focuses on an analysis of existing project-level PAs and related practices and discusses the challenges agencies and consulting parties face when developing and implementing these agreement documents. It is divided into three sections: 1. Project approach: The methodology used by the survey team to conduct outreach, collect data, conduct interviews, review completed questionnaires, and review project-level PAs from around the country. 2. Results from the survey and interview outreach: A summary of the survey responses and results that introduces how agencies use project-level PAs and common issues that arise in the implementation of these agreements. 3. Analysis of project-level PAs: This section is divided into subsections that relate to the main issues that DOTs encounter when developing, executing, and implementing a project-level PA: A. Understanding the knowns and unknowns of historic properties and effects B. Using effective and clear language C. Working with Section 106 consulting parties, including Tribes, THPOs, and Native Hawaiian Organizations D. Fulfilling agency commitments, including mitigation and contractual obligations E. Developing effective administrative stipulations and appendices The PA analysis section includes relevant statistics from the review of project-level PAs collected during the survey and outreach, a summary of challenges that arise related to each of these issues, and a bulleted list of effective practices a DOT may consider when developing a project-level PA.