State Section 106 Programmatic Agreement

PROGRAMMATIC AGREEMENT
CONCERNING PRE-1956 HISTORIC BRIDGES
AMONG THE FEDERAL HIGHWAY ADMINISTRATION,
THE ADVISORY COUNCIL ON HISTORIC PRESERVATION,
THE MINNESOTA STATE HISTORIC PRESERVATION OFFICER,
THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, ST. PAUL DISTRICT
AND THE MINNESOTA DEPARTMENT OF TRANSPORTATION

WHEREAS the Federal Highway Administration (FHWA) proposes to administer the Federal­ Aid Highway Program in Minnesota authorized by 23 USC 101 et seq. through the Minnesota Department of Transportation (Mn/DOT) (23 USC 315), which covers any Federal-Aid Highway Program funded undertaking (including transportation enhancement funds and the National Recreational Trails Program), including those sponsored by local agencies; and

WHEREAS, the FHWA has determined that the Federal-Aid Highway Program may be used to rehabilitate or replace pre-1956 bridges listed in or determined eligible for listing in the National Register of Historic Places (NRHP) (hereafter referred to as “historic bridges”); and

WHEREAS, the FHWA has consulted with the Advisory Council on Historic Preservation (ACHP) and the Minnesota State Historic Preservation Officer (MnSHPO) pursuant to Section 106 of the National Historic Preservation Act (Section l06) (16 U.S.C. 470f) and implementing regulations (36 CFR Part 800.14[b]) to develop this Programmatic Agreement (PA) regarding the treatment of pre-1956 historic bridges in Minnesota; and

WHEREAS, the FHWA wishes to ensure that Mn/DOT will conduct its Federal-Aid Highway Program funded undertakings in a manner consistent with the “Programmatic Agreement among the Federal Highway Administration, the Minnesota State Historic Preservation Office, the Advisory Council on Historic Preservation, the Department of the Army, Corps of Engineers, St. Paul District, and the Minnesota Department of Transportation regarding Implementation of the Federal-Aid Highway Program in Minnesota” executed on June 21, 2005 (2005 Section 106 PA) and the National Environmental Policy Act (NEPA) (36 CFR 800.8); and

WHEREAS, the FHWA intends to integrate its historic and archaeological preservation planning and management decisions with other policy and program requirements to the maximum extent possible consistent with Section 110 of the NHPA; and

WHEREAS, 36 CFR 800 encourages Federal agencies to efficiently fulfill their obligations under Section 106 of the NHPA through the development and implementation of cooperative PAs; Executive Order 13274 states that the development and implementation of transportation infrastructure projects in an efficient and environmentally sound manner is essential to the well­ being of the American people and a strong American economy and the executive departments and agencies shall take appropriate actions, to the extent consistent with applicable law and available resources, to promote environmental stewardship in the Nation’s transportation system and expedite environmental reviews of high-priority transportation infrastructure projects: Section 1309 of the Transportation Equity Act for the 21st Century (TEA-21), Public Law 105-178 (as amended by the SAFETEA-LU), calls on Federal agencies to expedite the environmental review process, while protecting and enhancing the environment: and the FHWA encourages the development of programmatic agreements between the state FHWA Division Offices and state SHPOs; and

WHEREAS, the FHWA has delegated its responsibilities, to a certain extent, for compliance with Section 106 in accordance with Federal law to the professionally qualified staff (as per 36 CFR 61) in the Cultural Resources Unit (CRU) at Mn/DOT (hereafter referred to as the Mn/DOT CRU staff), although the FHWA remains legally responsible for all findings and determinations charged to the agency official in 36 CFR 800; and

WHEREAS, consistent with applicable Federal legislation, the MnSHPO reflects the interests of the state and its citizens in the preservation of their cultural heritage, and in accordance with Section 101(b)(3) of the NHPA advises and assists Federal and State agencies in carrying out their historic preservation responsibilities, including Section 106 responsibilities; and

WHEREAS, as per the terms of the 2005 Section 106 PA the Department of the Army, Corps of Engineers, St. Paul District (Corps) recognizes the FHWA as the lead Federal agency for Corps undertakings related to Federal-Aid Highway projects, and has been invited to be a signatory to this Programmatic Agreement {Agreement) pursuant to 36 CFR 800.2(a)(2); and

WHEREAS, the Mn/DOT recognizes that historic bridges represent the Department’s engineering heritage and that their preservation is important to the Department; therefore, Mn/DOT has participated in the consultation and has been invited to become a signatory to this Agreement; and

WHEREAS, FHWA and Mn/DOT are committed to the design of transportation systems that: (1) achieve a safe and efficient function appropriately placed within the Minnesota context; (2) avoid, minimize and mitigate adverse effects on historic and cultural resources; (3) recognize that investment in these historic, archaeological, and cultural resources is critical to Minnesota’s continued growth and prosperity; and (4) respond to the needs of Minnesota communities; and

WHEREAS, the rehabilitation, reuse, and preservation of historic bridges can be facilitated with good information and procedures that encourage consideration of context sensitive solutions and address the public interest in the preservation of historic bridges; and

WHEREAS, it is understood that new bridge construction and routes may ultimately be required to address local and state transportation needs; and

WHEREAS, the Mn/DOT CRU, on behalf of the FHWA and in consultation with the MnSHPO, has completed an inventory and evaluation of bridges constructed before 1956 and has identified the list of eligible pre-1956 bridges owned by Mn/DOT or local governments (see Attachment A) (although bridges may be removed from the list [due to loss of integrity or demolition] and added to the list over time [e.g., bridges contributing to an eligible historic district]); and

WHEREAS, the Mn/DOT has committed to preserving and performing a higher level of maintenance on selected state-owned eligible bridges (see Attachment B), and will work to encourage local bridge preservation efforts for bridges controlled by local agencies.

NOW, THEREFORE, the FHWA, the ACHP, the Corps, the MnSHPO, and Mn/DOT agree that Federal-aid Program undertakings involving historic bridges in Minnesota shall be administered in accordance with the following stipulations.

STIPULATIONS

FHWA shall ensure the following stipulations are carried out.

STIPULATION I. APPLICABILITY AND SCOPE

1. Applicability. This Agreement applies to any FHWA-funded undertakings conducted on National Register-eligible bridges (see Attachment A) including, but not necessarily limited to bridge maintenance projects, bridge preservation/rehabilitation/restoration/reconstruction projects, bridge relocation projects, bridge replacement projects, and projects containing any or all elements of the above project types.

   This Agreement does not apply to projects without FHWA funding. Mn/DOT and local bridge projects without FHWA funds may need to be reviewed under the Minnesota Historic Sites Act (MS 138.665) and the Minnesota Field Archaeology Act of 1963 (MS 138.31-138.42). For non-FHWA funded bridge projects requiring a Corps permit, the Corps is the lead federal agency and shall be responsible for compliance with Section 106. For those projects, Mn/DOT Districts and local agencies must coordinate with the Corps.

2. Definition of Eligible/Listed Bridge. All pre-1956 bridges that are not listed in Attachment A have been determined to be not eligible for listing in the National Register, and therefore require no further identification or evaluation for the FHWA’s compliance under Section 106. The two exceptions to this are railroad bridges located over non-roadway features and bridges that are not individually eligible but may be identified and evaluated as contributing elements to a historic district (neither of which were evaluated during the Mn/DOT CRU-sponsored study). For all reviews, Mn/DOT CRU will determine if any pre-1956 bridges (including those not on the list in Appendix A) are in the APE, will detem1ine if they are potentially contributing elements to a historic district, and will follow the identification and evaluation procedures as defined in 36 CFR 800.4 and the 2005 Section 106 PA. For all reviews, Mn/DOT CRU will identify if railroad bridges are present in the APE that have not been previously evaluated, and will evaluate them as defined in 36 CFR 800.4 and the 2005 Section 106 PA.
3. Other Federal Agency Involvement. Should Federal agencies other than FHWA or the Corps implement an undertaking (as defined in 36 CFR Part 800.16[y]) in association with a Federal-Aid Highway Program funded bridge project, said Federal agency may satisfy their Section 106 compliance responsibilities according to 36 CFR 800.2(a)(2) by stating in a letter to the FHWA, and copying the MnSHPO, ACHP, and Mn/DOT CRU, that their undertaking will conform to the terms of this Agreement and recognizing FHWA as the lead Federal agency. FHWA and Mn/DOT CRU will review the scope for any expanded undertaking and ensure that a proper area of potential effect is defined, and will determine what additional measures are needed, if any, to fully consider the undertaking’s effects on historic properties.

STIPULATION 2: REVIEW PROCESS FOR PRE-1956 BRIDGES

Previously executed, project-specific memoranda of agreement regarding a historic bridge or bridges in Minnesota are not superseded by the provisions and stipulations in this Agreement. The review process will follow the terms of the 2005 Section 106 PA, including any revisions or amendments to the 2005 Section 106 PA.

1. Effects to Eligible or Listed Bridges. If a proposed undertaking for the type of undertakings listed in the Applicability section of this Agreement includes work on or demolition of any bridge included in Attachment A, the Mn/DOT CRU staff; will review the undertaking in accordance with the 2005 Section 106 PA, and determine if the undertaking will have an adverse effect on the bridge. Mn/DOT will also complete, as needed, the identification, evaluation and treatment of historic properties other than the affected historic bridge as prescribed in the 2005 Section 106 PA.

   Mn/DOT CRU will use the Secretary of the Interior’s Standards for the Treatment of Historic Properties in order to determine if the proposed work would constitute an adverse effect. If Mn/DOT CRU staff determines that the project would constitute an adverse effect on the historic bridge and/or other National register eligible properties, they will work with the project sponsor to avoid such effects. If adverse effects cannot be avoided or minimized, Mn/DOT CRU staff and the FHWA will follow the 2005 Section 106 PA Stipulation 3:H.

2. Long-Range Mitigation Approaches. The FHWA and MnSHPO recognize that long­ range approaches to mitigation can be more efficient than project-by-project mitigation items, and will seek to develop such approaches as needs and resources permit.

STIPULATION 3: BRIDGE PRESERVATION AND EDUCATIONAL EFFORTS

1. Completion of the Minnesota Statewide Historic Bridge Management Plan and Individual Bridge Management Plans for Bridges Selected for Preservation. Mn/DOT completed in June 2006 the Minnesota Statewide Historic Bridge Management Plan and individual management plans for 23 of the 24 state-owned bridges selected for preservation (see Attachment A). This work also included the documentation of 46 of the state’s premiere historic bridges to the Minnesota Historic Property Record (MHPR) (on file in the Minnesota Historical Society [MHS] archives). Mn/DOT will complete by December 2008 the management plan for the remaining bridge (the Stillwater Lift Bridge).

   As was agreed upon in the 1997 Bridge Management Plan but not yet accomplished, Mn/DOT will formally list on the National Register all of the state-owned pre-1956 eligible bridges. Currently, only four bridges remain for listing: Bridge 6679, Bridge 5557, Bridge 5722, and Bridge 4175. These bridge nominations will be submitted to the MnSHPO no later than one (1) year after the signing of this Agreement. If the Faribault Viaduct is selected for preservation in lieu of Bridge 5557, then Bridge 5557 will not be listed.

2. Preservation and Maintenance of the 24 Selected Bridges as per the terms of the Individual Bridge Management Plans. Mn/DOT is committed to preserving and maintaining the 24 bridges listed in Attachment B. Recognizing that individual bridge projects will occur on different schedules depending on available funding sources and individual bridge needs, Mn/DOT will begin to actively seek funding for preservation/rehabilitation of the 24 bridges within one (1) year of the signing of this Agreement. Mn/DOT will provide annual updates to FHWA and MnSHPO on the status of the bridge preservation efforts and copies of the annual maintenance checklists developed under the individual bridge plans for each of the 24 bridges (no later than February 15th annually and in conjunction with the annual review of the 2005 Section 106 PA and this Agreement).

   If it is determined by all parties involved in a specific preservation project that preservation is not feasible, appropriate additional efforts will be determined by the signatories of this Agreement to assure that a representative group of bridge types is being preserved.

3. Training for Mn/DOT Bridge Maintenance Personnel for the 24 State-Owned Historic Bridges. Within 12 months of the signing of this Agreement and on an on-going basis. Mn/DOT CRU and Bridge Office will provide training to Mn/DOT bridge maintenance workers in order to ensure that appropriate maintenance treatments are being applied to the 24 bridges identified for preservation. The Districts responsible for maintenance on the 24 bridges identified for preservation (Attachment A) will annually send in the maintenance checklist developed under each individual bridge management plan to Mn/DOT CRU no later than January 15th. Mn/DOT CRU will forward copies of the completed maintenance checklist to MnSHPO no later than Februa1y 15th.
4. Updating of Minnesota National Register Historic Bridge Web Site and Creation of a Mn/DOT Historic Bridge Web Page. Within 12 months of the signing of this Agreement, Mn/DOT will work with FHWA, MnSHPO, and MHS to update the Minnesota Historic Bridge web site (http://www.mnhs.org/places/nationalregister/bridges/bridges.html). The National Register web page will be updated with corrected information on historic bridges.

   The following items, at a minimum, will be posted on the Mn/DOT Historic Bridge Web Page: this signed Agreement, the general bridge management plan, the individual bridge management plans, historic bridge contexts, high resolution scanned images of all Minnesota Historic Property Record (MHPR) bridge documentations performed for FHWA funded projects, and high resolution digital images of documented bridges, where available. As future bridge studies or documentations are completed, Mn/DOT will post them to the Historic Bridge Web Page.

5. Historic Bridge Expertise within the Mn/DOT Bridge Office. The Mn/DOT Bridge Office will maintain within its staff a bridge engineer whose job responsibilities include work on historic bridges. The engineer must have either education focused on preserving historic bridges or periodic training on preserving historic bridges (which may include attending workshops, symposia and conferences on the topic).
6. Preservation Efforts for Locally Owned Historic Bridges. Within 6 months of the signing of this Agreement, Mn/DOT CRU and Bridge Office will distribute the general historic bridge management plan to all Mn/DOT District Bridge Offices, County Highway Departments, and municipalities that own historic bridges. Mn/DOT CRU and Bridge Office may also provide training opportunities for local agencies on appropriate treatments for historic bridges.

   Mn/DOT CRU and MnSHPO will work with local groups to aid in the preservation of historic bridges under the control of local agencies. The work may include, but not necessarily be limited to, providing technical guidance, GIS data on historic bridge locations, training to maintenance staff, and assistance in completing a local bridge management plan.

STIPULATION 4. USE OF DESIGN EXEMPTIONS AND VARIANCES

Context Sensitive Solutions (CSS) is an integral part of FHWA and Mn/DOT projects. CSS is a collaborative, interdisciplinary approach that involves all stakeholders to develop a transportation facility that fits its physical setting and preserves scenic, aesthetic, historic and environmental resources, while maintaining safety and mobility. CSS is an approach that considers the total context within which a transportation improvement project will exist. CSS principles include the employment of early, continuous and meaningful involvement of the public and all stakeholders throughout the project development process. The implementation of a CSS approach to navigating the project development process will ensure the best possible outcome to the process. Therefore, FHWA and Mn/DOT strongly encourages the development or historic bridge projects in a context sensitive manner, including the use of design exemptions and variances when practical.

1. Within one (1) year of the signing of this Agreement, Mn/DOT will develop and distribute guidelines on how to effectively apply and utilize design exemptions and variances on historic bridges. This document will be distributed to all Mn/DOT districts and offices and local agencies within three (3) months of its completion, and will be used in reviewing projects on historic bridges.

STIPULATION 5. FUNDING ALTERNATIVES

1. HBRRP Funding. For projects that meet the requirements for Highway Bridge Replacement and Rehabilitation Program (HBRRP) funding, FHWA will work with Mn/DOT on a project-by-project basis to maintain the historic integrity of the bridge while keeping it in service using exemptions to the standards when deemed appropriate.
2. Enhancement Funds. Mn/DOT will apply for, and will encourage local agencies to apply for enhancement funds as appropriate for rehabilitation work on historic bridges.

STIPULATION 6. FUTURE BRIDGE IDENTIFICATION AND EVALUATION EFFORTS

1. List of Eligible/Listed Bridges. The currently agreed upon list of eligible and listed bridges is based on the identification and evaluation efforts of bridges constructed prior to 1956 and is included as Appendix A. The two exceptions to this are railroad bridges located over non-roadway features and bridges that are not individually eligible but may be identified and evaluated as contributing elements to a historic district (neither of which were evaluated during the Mn/DOT CRU-sponsored study). For all reviews, Mn/DOT CRU will determine if any pre-1956 bridges (including those not on the list in Appendix A) are in the APE, will determine if they are potentially contributing elements to a historic district, and will follow the identification and evaluation procedures as defined in 36 CFR 800.4 and the 2005 Section 106 PA. For all reviews, Mn/DOT CRU will identify if railroad bridges are present in the APE that have not been previously evaluated, and will evaluate them as defined in 36 CFR 800.4 and the 2005 Section 106 PA.
2. Annual Review Bridge List Status and Updating of Attachment A. The passage of time or changing perceptions of significance may require a reevaluation of properties previously determined eligible or ineligible. On an annual basis (by February 15th after the signing of this Agreement and at the same time that the 2005 Section 106 PA is reviewed, Mn/DOT CRU will coordinate with the Bridge Office and MnSHPO to remove any bridges from the list that have been demolished or had a substantial loss of integrity and to add bridges that have been found eligible (such as bridges contributing to a historic district). Mn/DOT CRU will send out the updated list within a month of the meeting, and the Bridge Office and MnSHPO will update their respective databases within one month of receiving the annual list.
3. Bridges Constructed After 1956. As bridges built after 1956 reach the 50-year mark that is generally accepted for National Register-eligibility, the FHWA, Mn/DOT CRU, and MnSHPO will work together to develop appropriate, streamlined identification and evaluation methods for such bridges, and incorporate such measures into this Agreement with an amendment or through a new PA as needed.

STIPULATION 7: POST-REVIEW DISCOVERIES

In the event that one or more historic properties—other than an historic bridge—are discovered or that unanticipated effects on historic properties are identified for any project qualifying under this Agreement, the FHWA shall follow the procedure specified in the 2005 Section 106 PA.

STIPULATION 8: DISPUTE RESOLUTION

Disagreement and misunderstanding about how this Agreement is or is not being implemented shall be resolved in the following manner:

If any of the signatories to this Agreement should object in writing to the FHWA regarding any action carried out or proposed with respect to any project qualifying under this Agreement or implementation of this Agreement, then the FHWA shall consult with the objecting party to resolve this objection. If after such consultation the FHWA determines that the objection cannot be resolved through consultation, then the FHWA shall forward all documentation relevant to the objection to the ACHP, including the FHWA’s proposed response to the objection. Within 45 days after receipt of all pertinent documentation, the ACHP shall exercise one of the following options:

• Provide the FHWA with a staff-level recommendation, which the FHWA shall take into account in reaching a final decision regarding its response to the objection; or
• Notify the FHWA that the objection will be referred for formal comment pursuant to 36 CFR 800, and proceed to refer the objection and comment. The FHWA shall take into account the ACHP’s comments in reaching a final decision regarding its response to the objection.

The FHWA shall take into account any ACHP comment or recommendations provided in accordance with this stipulation with reference only to the subject of the objection. The FHWA’s responsibility to carry out all actions under the Agreement that is not the subject of the objection shall remain unchanged.

STIPULATION 9: AMENDMENT

Any signatory to this Agreement may request that it be amended, whereupon the parties shall consult to consider the proposed amendment. The amendment will be effective on the date a copy is signed by all of the original signatories.

STIPULATION 10: TERMINATION

Any party to this Agreement may terminate it by providing thirty days notice to the other signatories, provided that the parties will consult during the period prior to termination to seek agreement on amendments or other actions that would avoid termination. In the event of termination, the FHWA will comply with 36 CFR 800 with regard to individual undertakings covered by this Agreement.

STIPULATION 11: EFFECT ON EXISTING AGREEMENT

The measures contained in this Agreement do not supersede provisions or stipulations contained in previously executed memoranda of agreement regarding the rehabilitation or replacement of historic bridges in Minnesota.

STIPULATION 12: FAILURE TO COMPLY WITH AGREEMENT

In the event the FHWA does not carry out the terms of this Agreement, the FHWA will comply with 36 CFR 800 with regard to individual undertakings covered by this Agreement.

STIPULATION 13: DURATION

This Agreement shall become effective upon execution by FHWA, MnSHPO, the Corps, the Council, and Mn/DOT and shall remain in effect until December 31, 2017.

STIPULATION 14. OPTION TO RENEW

No later than December 31, 2016, FHWA will consult with the signatories to this Agreement to determine interest in renewing this Agreement. The Agreement may be extended for additional terms upon the written agreement of the signatories.

Execution and implementation of this Agreement evidences that the FHWA and the Corps have afforded the Council a reasonable opportunity to comment on the effects of the Federal-aid Highway program on historic bridge properties.

FEDERAL HIGHWAY ADMINISTRATION

By: Thomas K. Sorel, Division Administrator
Date: 1/24/08

MINNESOTA STATE HISTORIC PRESERVATION OFFICE

By: Nina Archabal, State Historic Preservation Officer
Date: 12/10/07

ADVISORY COUNCIL ON HISTORIC PRESERVATION

By: John M. Fowler, Executive Director
Date: 2/15/08

Invited Signatories

UNITED STATES, ARMY CORPS OF ENGINEERS, ST. PAUL DISTRICT

By: Robert [illegible], for Jon Christensen, Colonel/District Engineer
Date: 1/23/08

MINNESOTA DEPARTMENT OF TRANSPORTATION

By: The Honorable Carol Molnau, Lt. Governor/Commissioner
Date: 12-6-07