Federal-aid highway projects often have little or no effect on historic properties. In these cases, the standard State Historic Preservation Office (SHPO) project-by-project review process can result in unnecessary added cost and time needed for project completion. Section 106 of the National Historic Preservation Act requires Federal agencies to take into account the effects of their actions on historic properties and also requires that FHWA consult with Tribes for undertakings that may affect properties that they consider to have traditional religious and cultural significance. By authorizing the State Departments of Transportation (DOTs) to conduct all or some Section 106 review on behalf of the Federal Highway Administration (FHWA), statewide Programmatic Agreements (PAs) will accelerate this process. Statewide Section 106 PAs have been introduced in a number of states including Maryland, New Jersey, Pennsylvania, Vermont, and Washington. A short summary of these PAs is presented here in this document. To view the Detailed Summary, click here.

The Maryland and Pennsylvania PAs outline classes of projects that are automatically exempted from Section 106 review and stipulate the process for review of classes of minor highway projects, defined as categorical exclusions in 23 CFR 771, which generally have no potential to effect historic properties. All other classes of projects follow the standard procedures outlined in 36 CFR Part 800.

The New Jersey and Washington PAs lay out the process for Section 106 review by referencing specific sections of 36 CFR Part 800 for which the DOTs will be responsible. Both New Jersey and Washington DOTs may make a determination of no adverse effect (36 CFR 800.8 [a]) in consultation with the SHPO and with the concurrence of FHWA. If SHPO consultation results in an adverse effect determination, responsibility for the Section 106 process returns to FHWA (36 CFR 800.5[e]). The Washington PA also includes separate provisions for historic bridges.

The Vermont PA gives the most authority to a state DOT by allowing the Vermont Agency of Transportation (VAOT) to complete almost all Section 106 review internally. It was implemented upon their completion of the Manual of Standards and Guidelines (Manual). . The specific details of the PA are laid out in the Manual, which includes the basic set of standards and guidelines for the VAOT in-house Section 106 review. In the case of an adverse effect determination, VAOT follows the Standard Mitigation Measures stipulated for each type of undertaking as outlined in the Manual. Although the Vermont SHPO receives copies of all VAOT correspondence, the SHPO does not get involved in specific projects unless there is a need to complete a Memorandum of Agreement.

All of the above PAs include options for dispute resolution, monitoring, amendment, termination, default, and the need for revision based on any future Section 106 regulatory changes. Some of the PAs also stipulate FHWA notification under other specific circumstances, such as instances where a National Historic Landmark is involved or for emergency undertakings.