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

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10 California explicitly mentioned the 23 USC 327 MOU, and the Texas and California DOTs were the lead agencies with legal responsibility for Section 106 compliance. The remaining data points were reviewed and are discussed in the PA analysis section of this report, which includes summaries of these data points where relevant to illustrate how agencies are using these elements of project-level PAs. This section includes summaries of the results of the questionnaire and interviews. A. Summary of survey outreach The project team conducted an online survey and interviews with select respondents as part of the outreach methods to learn more about current practices related to project-level PAs. The team also held two listening sessions with the Cultural Resources and Tribal Liaisons subcommittees at regularly scheduled meetings through the Center for Environmental Excellence of AASHTO. These sessions provided an opportunity for DOT cultural resource staff to provide thoughts on why and how their agencies use project-level PAs and encouraged participation in the online survey. The survey and listening sessions occurred from September to December 2020. Respondents and interviewees were asked a series of questions related to current practices in the development and execution of project-level PAs and to provide examples of project-level PAs. To obtain the most applicable information about project-level PAs relevant to DOTs, our primary targets (Tier 1) for the survey were agency officials and staff affiliated with state DOTs; SHPOs; the ACHP; THPOs, tribal representatives, Native American coordinators and liaisons; Federal Preservation Officers with FHWA, the FRA, FTA, and NPS; and TRB’s Committee on Historic and Archaeological Preservation in Transportation (AME60, formerly ADC50). To identify the best Tier 1 candidates at each agency, the project team relied on its knowledge and personal relationships with a number of the targeted agencies as well as input from NCHRP Project 25-62 panel members. Project information and a link to the questionnaire were sent directly from members of the project team to 324 Tier 1 contacts. In the instance where the contact preferred not to complete the questionnaire, they could request an interview and were contacted by a team member. Emails with project information and the survey link were also sent by the project team to colleagues identified by survey respondents. Secondary targets (Tier 2) were members of related professional organizations, such as the American Cultural Resources Association (ACRA), Society for Commercial Archeology, and National Trust for Historic Preservation (NTHP). For Tier 2 professional organizations, the questionnaire was sent via email to the primary point of contact for the organization with the request that it be distributed to its membership through an appropriate venue, such as monthly e-newsletters, member webpages, listservs, social media, or other forms of communication. The project team shared the survey directly to the AME60 listserv, which reaches a large number of cultural resource practitioners.

11 Team members promoted the survey more broadly through social media outlets including blogs, LinkedIn, Facebook, and Twitter. Specific social media posts included: • Mead & Hunt Insights (blog) • LinkedIn – key team members posted the survey information and link on their personal or corporate page. The survey was also posted to the following LinkedIn groups: o AME60 (LinkedIn group retains former ADC50 name) o Means, Methods & Materials for Restoration of the Built Environment o Environmental Consulting Professionals o Preservation Professionals o NTHP o Cultural Resource Management o ACRA • Facebook – posts were made to the following group and corporate pages: o Historic Preservation Professionals o ACRA o Dovetail o NV5 • Twitter – Two key team members tweeted about the survey B. Responses received A total of 69 questionnaires were completed and 30 interviews with respondents were conducted, providing useful insight into the use of project-level PAs. Individuals represented a variety of agencies including DOTs, SHPOs, FHWA, FRA, FTA, ACHP, and NPS. Figure 5 shows the number of respondents by agency. Figure 5. Agency affiliation of questionnaire responses received as part of outreach efforts. 0 5 10 15 20 25 30 35 40 Consultant Other Agency FHWA SHPO DOT

12 DOTs and SHPOs, representing the targeted Tier 1 agencies, provided the most input, with 35 and 20 respondents, respectively. Eleven respondents represented federal agencies, including six from FHWA and five other agencies. No completed questionnaires were received from THPOs, but interviews were conducted with tribal liaisons at DOTs and one tribal representative. Survey respondents represented 38 states and the District of Columbia, providing for a broad geographic representation of responses from across the country. In some cases there were multiple respondents from a single state or agency. Figure 6 identifies the states represented by survey respondents, and Figure 7 indicates the 33 states where project-level PAs were obtained. Figure 6. Map illustrating the 38 states, including Washington, D.C., where the project team received questionnaire responses or conducted interviews.

13 Figure 7. Map illustrating the 33 states, including Washington, D.C., where the project team received PAs. C. Survey results Provided below are the questions posed to respondents followed by analysis and observations. A copy of the full questionnaire is provided in Appendix A. Responses to these questions provided important information about the current use of project-level PAs around the country. Most respondents answered each question, but there are instances where respondents did not address all questions. Please note the list of questions and analysis below begins with question #6 since the first five questions related to contact information. Responses to questions #9, #12, and #22 are not included as they related to uploading project-level PAs or contacting respondents for additional information. Respondents’ answers provided within these results have been slightly edited for clarity, typos, and grammar. Question #6. Project-level PAs are commonly used when, prior to approving the undertaking, the federal agency cannot fully determine how a particular undertaking may affect historic properties or the location of historic properties and their significance and character. Has your agency developed and/or been a signatory (an invited signatory or a concurring party) to a project-level PA for Section 106 compliance? Eighty percent of respondents (55) indicated their agency has developed and/or been a signatory to a project-level PA for Section 106 compliance. Twelve percent of respondents (8) answered “No” (see Figure 8).

14 Figure 8. Survey responses indicating whether the agency has developed or signed a project-level PA. Questions #7 and 8. If you answered “No,” please check all that apply and provide additional details. If you answered “Other,” please describe. Eight respondents (representing Delaware, Idaho, Indiana, Kentucky, Michigan, Mississippi, South Carolina, and Wyoming) noted why their agency does not use these agreements (see Figure 9). The reasons cited include: • The agency prefers to use the standard Section 106 review process • They are not familiar with project-level PAs • They do not administer the types of projects required for project-level PAs. • Three respondents answered “Other,” and their responses are provided below. 0 10 20 30 40 50 60 No Yes To my knowledge, there just hasn't been a situation where a project-level PA was needed to date. I could certainly see this happening at some point, however. – DOT representative We have a Section 106 PA with our SHPO that covers small-scale projects, with the majority of projects processed under this agreement being categorical exclusions (CE) (as defined by [my state’s] CE agreement with FHWA). For larger scale projects such as EAs or EISs, a project- specific MOA is typically developed in advance of the project that spells out the Section 106 process for that project. – DOT representative We have several PAs for minor projects and primarily use the standard Section 106 review. – DOT representative

15 Figure 9. Survey responses summarizing reasons why agencies do not develop project-level PAs. Question #10. What were the project conditions and considerations that led to the decision to use a project-level PA (e.g., large, highly complex or phased project, ubiquitous or understudied property type)? The majority of responses indicated large, highly complex projects involving multiple federal agencies and Tribes and/or phased projects (such as a Tiered EIS or Design/Build) led to the decision to use a project- level PA. The respondents mentioned large federal projects with budgets up to $1 billion, long corridors, or up to 50 consulting parties participating in the Section 106 consultation as specific reasons for utilizing project-level PAs. Question #11. How many project-level PAs has your agency been involved with? The responses to this question varied with some respondents referencing the average number of project- level PAs per year at their agency and others providing the number of project-level PAs they personally have seen their agency involved in (e.g., 28 project-level PAs over 30 years). The majority of respondents indicated their agency’s involvement in one to three PAs each year on average. 0 1 2 3 4 Do not administer the types of projects required for project-level PA AND not familiar with project-level PAs Do not administer the types of projects required for project-level PA AND prefer to use standard Section 106 review Not familiar with project-level PAs Prefer to use the standard Section 106 review Other

16 Question #13. What is the typical length of time needed for the development and execution of a project-level PA? The typical length of time needed for developing and executing project-level PAs varied significantly among respondents, with a handful stating less than three months to nine respondents stating more than 24 months (see Figure10). The most common timeframes provided were 13-24 months (16 respondents), 4-6 months (13 respondents), and 7-12 months (12 respondents). Figure 10. Survey responses for typical length of time needed for the development and execution of a project-level PA. Question #14. How did you coordinate, sequence, and time the project-level PA within the overall project schedule relative to the environmental process? Nearly all respondents acknowledged that each project is different and the coordination and sequencing depends on the project. However, the majority of respondents indicated that coordination on the project- level PA and sequencing its implementation with the overall project schedule is established as early as possible in the process. Typically, the project-level PA is executed prior to finalizing the EIS/Record of Decision. The progression of the Section 106 process runs parallel with the NEPA process and both processes conclude at the same time. Two respondents, however, said they start the coordination of the project-level PA during the final EIS. Respondents from SHPOs largely indicated they are reactive to what federal agencies give them and their timelines, and that the timing and sequence depends on the flexibility and experience of the lead federal agency. 0 2 4 6 8 10 12 14 16 18 No time indicated Less than 3 months More than 24 months 7-12 months 4-6 months 13-24 months

17 One respondent summarized the various ways to coordinate, sequence, and time a project-level PA relative to the environmental process as described below. Other respondents described strategies for coordinating and involving multiple consulting parties relative to the environmental process for their project-level PAs. Question #15. What type of contracting arrangements were used (e.g., Public Private Partnership (P3), Design/Bid/Build, Design/Build, Construction Manager/General Contractor (CM/GC))? This question helped the project team understand how contracting arrangements are reflected in the language of the PA, which is considered a contractual document. Of the 53 respondents who indicated their agency has developed and/or been a signatory to a project-level PA for Section 106 compliance, 50 answered this question (see Figure 11). Eight respondents use project-level PAs for Design/Bid/Build projects, seven use them for Design/Build (DB) projects, and seven indicated their project-level PAs It depends when they (the agency) start; sometimes at the beginning of the environmental review process. When you know you are walking into a complex project, it is easier to roll into the PA right away. This helps organize things at the outset. For other projects PAs came about during the project and the agency could not move forward with other components of the project without it. When a PA is done mid-project, it is sometimes more complex. However, these do often require fewer amendments. – SHPO representative Our DOT begins its environmental review during a "scoping" stage before design begins with the goal of completing Section 106, NEPA, etc. by 30-percent design. All consultation should be done in this window. Unfortunately, as deadlines are usually set before the scoping stage, the development of a PA, which requires considerable consultation, does occasionally push the project schedule. This is typically avoidable through early coordination between our Cultural Resources Unit and the Project Management office (project delivery). – DOT representative We review the State Transportation Improvement Program (STIP) projects annually to find projects that could be done with project-level PAs to get ahead of a project to establish a time frame and schedule before the project is assigned to a project manager. This helps with both experienced and newer project managers who need to understand why these need to be done early to coordinate NEPA with Section 106. – DOT representative

18 include all contracting arrangements. Other arrangements are less frequently used, including P3 and CM/GC. Ten respondents indicated N/A or unsure. Figure 11. Survey responses for types of contracting arrangements associated with project-level PAs. Respondents noted that project-level PA consultation to fulfill the contracting arrangements for a DB project resulted in improved communication between engineers, contractors, and cultural staff. One respondent noted the following: Question #16. If you had issues with administrative stipulations after execution, please discuss below. Forty-seven respondents answered this question. Almost half of respondents (22) indicated they have not had issues with administrative stipulations after the execution of the project-level PA. A little more than 0 1 2 3 4 5 6 7 8 9 Other Inter-Governmental Agreement DBB/DB/P3 Public Private Partnership (P3) Varies DB/P3 Construction Manager/General Contractor DBB/DB Not Sure N/A All Design/Build (DB) Design/Bid/Build (DBB) We learned how to better communicate with engineers to interpret their language. We had to develop different plans which was a good learning experience. We also had a design coordination plan and engineers had to think about the process and how to write it down so it was more easily understood by Section 106 consulting parties and contractors. – DOT representative

19 half (25) of respondents said they experience challenges with fulfillment, tracking and reporting, and overseeing the implementation of the project-level PA. One SHPO representative shared the issue of the budget not including an allotment for monitoring stipulations as a specific challenge. A DOT representative mentioned new staff who were not involved in the original negotiations interpreted the administrative stipulations differently than the staff involved in the original negotiations. Several respondents shared specific issues: • Annual reports to update project progress not being submitted to SHPO or consulting parties • Not having the capacity or staff to follow through on the stipulations • Unanticipated discoveries (usually archaeological) or post-review discoveries, which occur when an agency discovers historic properties after the project has started • Agreement documents executed before 2016 did not have administrative stipulations that are now required by the ACHP • Duration of PA was not long enough • Challenges to PAs from consulting parties Question #17. Was the mitigation negotiated for the project-level PA appropriate (i.e., was it too much or too little given the size of the project)? Please refer to specific PAs in your answer if you have participated in more than one PA. Forty-eight respondents answered this question. Almost half of the respondents (22) said the mitigation negotiated for the project-level PA was appropriate. A little more than half (26) said it depends on the project and that not all project-level PAs require mitigation. One DOT representative mentioned mitigation negotiated for project-level PAs needs to include a specific timeframe, because if project funding is delayed, the implementation of mitigation can become problematic and may not be fulfilled based on the terms of the agreement. Several other DOT representatives said they usually identify mitigation concepts in the PA but details are negotiated in consultation with SHPO and stakeholders as projects are obligated. Several noted the mitigation that is selected is related to the adverse effects that will occur to a historic property, such as preparing an archival photographic recordation document for a historic property prior to it being demolished.

20 Two respondents noted the following regarding mitigation commitments: Questions #18 and #19. Did you experience any of the following after execution of the project-level PA? If you checked “Other” regarding the execution of the PA above, please describe and indicate the specific PA you are referencing. Forty respondents answered this question, with 12 respondents noting they had experienced unfulfilled agency commitments (see Figure 12). Time constraints and delays in fulfilling the agreement (PAs expired before stipulations were implemented) were also concerns for eight and 11 respondents, respectively. Those that answered “Other” mentioned lack of funding to administer projects and mitigation, agency staff turnover, general lack of knowledge of PAs, and insufficient administrative stipulations, including lacking a clear process for dispute resolutions. Figure 12. Survey responses for experiences after the execution of project-level PAs. 0 2 4 6 8 10 12 14 Stipulations assigned to contractors… Other Time constraints Delays in fulfilling the agreement Unfulfilled agency commitments People assume Section 106 is done after the PA is signed but they need to be reminded that milestones still need to be completed through the life of the agreement as the project is being constructed. – ACHP representative There are three rules in mitigation: (1) value of it has to be commensurate with the law, (2) what is being lost and communicating what it is and compensating for it, (3) it has to be local and focus on the needs of the community. – SHPO representative

21 Question #20. Can you provide any perspectives on what worked well during the process of developing and implementing a specific project-level PA or multiple PAs, such as unique or creative approaches or consultation strategies that were taken? Forty-five respondents answered this question. Responses to this question generally included the following categories: • Get them done early • Communicate often • Agree on mitigation up front • Keep consulting parties involved throughout the project • Avoid passive language • Use tracked changes and accept/reject/resolve comments. Use comment matrices for further transparency • Create concrete plans, drafts, and timelines • When developing project-level PA stipulations, consider utilizing new technology like LiDAR, GIS, drones, photogrammetry and 3-D modeling where appropriate • Build relationships with the community and focus on what will benefit the community most • Include an appendix of key terms related to Section 106 regulations and their definitions • Develop consultation schedule, communication plan, and project website where all consulting parties can find pertinent Section 106 documents in one location • Spend time to make sure no one promises to do anything ambiguous or difficult to carry out by another party • Meet with engineers developing the plans • Hold workshops to talk about project-level PAs as an overall process and come up with best management practices for utilizing them Section 3 includes more detail on effective practices for effective project-level PAs.

22 Question #21. Can you provide any perspectives on challenges not already discussed? Thirty-three respondents answered this question offering a range of responses. Many covered perspectives and challenges already addressed in the questionnaire, while others provided additional insight on project- level PAs. The following comments represent the major themes provided by respondents: PAs need to create efficiency; if they don’t, they are not worth the time and effort. – DOT representative “If you don't have a person who can direct the conversation in a productive manner, PAs can flounder and go on forever; need to have people who make sure everyone is involved who knows what is happening and they are included in decisions; goal oriented and organized meetings are key.” – SHPO representative “It can be helpful to slow down, not try to get a PA done in a certain amount of time to earn goodwill among consulting parties.” – NPS representative The biggest challenge with PAs is education. PAs require a lot of education about what it is and how it will ensure full consideration of historic properties. Get rid of mistrust in process by making sure people know what these agreements are and do. – ACHP representative Different entities have competing priorities, goals/objectives. Communication and partnering are important. – FHWA representative