State Section 106 Programmatic Agreement

PROGRAMMATIC AGREEMENT AMONG
THE FEDERAL HIGHWAY ADMINISTRATION,
THE NEW HAMPSHIRE STATE HISTORIC PRESERVATION OFFICE,
THE ADVISORY COUNCIL ON HISTORIC PRESERVATION, AND
THE NEW HAMPSHIRE DEPARTMENT OF TRANSPORTATION
REGARDING THE FEDERAL AID HIGHWAY PROGRAM IN NEW HAMPSHIRE

WHEREAS, the Federal Highway Administration (FHWA), under the authority of 23 U.S.C. 101 et seq., implements the Federal-aid Highway Program (Program) in the state of New Hampshire (NH) by funding and approving state and locally sponsored transportation projects that are administered by the NH Department of Transportation (NHDOT); and

WHEREAS, the NH FHWA Division Administrator is the “Agency Official” responsible for ensuring that the Program in the state of NH complies with Section 106 of the National Historic Preservation Act (NHPA)(54 U.S.C. 306108), as amended, and codified in its implementing regulations, 36 CFR Part 800, as amended (August 5, 2004); and

WHEREAS, NHDOT administers Federal-aid projects throughout the State of NH as authorized by Title 23 U.S.C 302; and

WHEREAS, the responsibilities of the NH State Historic Preservation Officer (SHPO) under Section 106 of the NHPA and 36 CFR Part 800 are to advise, assist, review, and consult with Federal agencies as they carry out their historic preservation responsibilities and to respond to Federal agencies’ requests within a specified period of time; and

WHEREAS, FHWA has determined that Program transportation projects, hereafter referred to as “projects,” may have an effect upon properties included in, or eligible for inclusion in, the National Register of Historic Places (National Register), hereafter referred to as “historic properties,” and has consulted with the SHPO and the Advisory Council on Historic Preservation (ACHP) pursuant to Section 800.14(b) of the regulations implementing Section 106 of the NHPA; and

WHEREAS, Program projects meet the definition of “undertaking” for the purpose of compliance with Section 106 of the NHPA; and

WHEREAS, FHWA has consulted with Federally-recognized Indian Tribes (Tribes) with ancestral lands in New Hampshire about this Agreement, has requested their comments, and has taken any comments received into account. These Tribes include the Mashantucket Pequot Tribal Nation, the Mohegan Tribe of Indians of Connecticut, the Narragansett Indian Tribe, the Passamaquoddy Tribe, and the Penobscot Nation; and

WHEREAS, any project involving tribal lands as defined in 36 CFR 800.16(x), or any project that may affect a property identified by a federally recognized Native American Tribe as possessing traditional religious and cultural significance, shall not be governed by this Agreement, but shall be reviewed by FHWA in accordance with 36 CFR Part 800; and

WHEREAS, FHWA and NHDOT are committed to the design of transportation systems that: (1) achieve a safe and efficient function in the State of NH; (2) avoid, minimize, and mitigate adverse effects on historic properties; and (3) respond to the needs of NH’s citizens and communities, including strategies that enhance the preservation of historic properties; and

WHEREAS, the NHDOT Bureau of Environment (NHDOT-BOE) employs a staff of cultural resource specialists and consultants who meet the Secretary of the Interior's Professional Qualification Standards (SOI’s Standards: https://www.nps.gov/history/local­-law/arch_stnds_9.htm), and who are eligible for listing with the NH Division of Historical Resources as professionally qualified in the fields of archaeology and architectural history, to carry out its cultural resource programs and responsibilities; and

WHEREAS, pursuant to the consultation conducted under 36 CFR 800.14(b), the signatories have developed this Programmatic Agreement (Agreement) in order to establish an efficient and effective program alternative for taking into account the effects of the Program on historic properties in NH and for affording the ACHP a reasonable opportunity to comment on projects covered by this Agreement; and

WHEREAS, FHWA has notified the public, Federal and State agencies, and Regional Planning Commissions in New Hampshire about this Agreement, has requested their comments, and has taken any comments received into account; and

WHEREAS, NHDOT has participated in the consultation and has been invited to be a signatory party to this Agreement; and

WHEREAS, this Agreement shall supersede the previous programmatic agreement among the FHWA, SHPO, ACHP, and NHDOT dated November 26, 2014; and

WHEREAS, this Agreement sets forth the process by which FHWA, with the assistance of NHDOT-BOE, will meet its responsibilities under Section 106 and the implementing regulations set forth in 36 CFR Part 800. For purposes of this Agreement, the definitions for terms appearing in 36 CFR 800.16(a) through (y) inclusive shall be employed whenever applicable; and

WHEREAS, FHWA provides financial assistance to the state for Local Public Agency (LPA) transportation projects; and

WHEREAS, The Stewardship and Oversight Agreement on Project Assumption and Program Oversight by and Between Federal Highway Administration, New Hampshire Division and the State of New Hampshire Department of Transportation (May 14, 2015) (Stewardship & Oversight Agreement) states that, “The NHDOT is responsible and accountable for LPA compliance with all applicable Federal laws and requirements;” and

WHEREAS, FHWA, with NHDOT’s assistance, shall ensure that Section 106 requirements for LPA projects are met in accordance with the applicable provisions of this Agreement; and

WHEREAS, cooperating federal agencies who recognize FHWA as the lead federal agency for an undertaking may fulfill their obligations under Section 106 according to 36 CFR 800.2(a)(2), provided that FHWA and NHDOT follow the requirements of this Agreement and the cooperating federal agency’s undertaking does not have the potential to cause effects to historic properties beyond those considered by FHWA and NHDOT; and

WHEREAS, FHWA, ACHP, NHDOT, and SHPO aspire to engage in meaningful, long term planning for the protection of historic and archaeological properties and, toward that end, desire to: (1) seek and explore procedural efficiencies; (2) devote a larger percentage of time and energies identifying relevant problems threatening historic and archaeological properties; (3) create innovative programs to address those problems; (4) develop transportation survey methodologies and appropriate training opportunities; and (5) develop a plan to maximize efficiencies when evaluating potential historic properties during emergency response procedures; and

WHEREAS, NHDOT and SHPO agree that NHDOT may use provisions of this Agreement to address the applicable requirements of NH RSA 227-C:9 in the location, identification, evaluation and management of historic resources, as applicable for projects not funded by the Program, but that are funded with State funds:

NOW, THEREFORE, FHWA, the SHPO, the ACHP, and NHDOT agree that the Program in NH shall be carried out in accordance with the following stipulations in order to take into account the effects of the Program on historic properties in NH and that these stipulations shall govern compliance of the Program with Section 106 of the NHPA until this Agreement expires or is terminated.

To aid the signatories of this PA, the stipulations and appendices are organized in the following order:

1. Purpose, Applicability and Scope
2. Definitions
3. Professional Qualifications Standards
4. Responsibilities
5. Consultation with Tribes
6. Participation of Other Consulting Parties and the Public
7. Project Review
8. Emergency Situations
9. Post-Review and Unanticipated Discoveries
10. Identification and Treatment of Human Remains
11. Monitoring and Reporting
12. Dispute Resolution
13. Amendment
14. Termination
15. Confidentiality
16. Transition
17. Duration of Agreement

1. Appendix A: Activities with No Potential to Cause Effects
2. Appendix B: Activities with Minimal Potential to Cause Effects
3. Appendix C: Definitions for key terms used in this Agreement
4. Appendix D: NHDOT Bureau of Bridge Maintenance EHS Procedure - 01, Title: Washing and Sealing of Bridges
5. Appendix E: Organizations/agencies that should be considered when inviting consulting parties during the public involvement process

STIPULATIONS

The FHWA, with the assistance of NHDOT, shall ensure that the following measures are carried out:

1. PURPOSE, APPLICABILITY AND SCOPE
   1. The objective of this Agreement is to make more efficient the methods by which FHWA and NHDOT review individual projects processed under Section 106 that may affect historic properties and to establish the process by which FHWA carries out its Section 106 responsibilities.
   2. This Agreement sets forth the process by which FHWA, with the assistance of NHDOT, will meet its responsibilities pursuant to Section 106 and 110 of the NHPA (54 U.S.C. 306102 and 306108).
   3. Through this Agreement, FHWA authorizes NHDOT to initiate and, in many cases, conclude consultation with the SHPO and other consulting parties for purposes of compliance with Section 106 of the NHPA.
   4. This Agreement establishes the basis for review of projects carried out under the Program.
   5. The FHWA retains the responsibility to consult with Tribes as required under 36 CFR Part 800, as amended. The NHDOT may assist FHWA if individual Tribes agree to alternate procedures.
   6. This Agreement shall not apply to projects that occur on or affect tribal lands as they are defined in 36 CFR 800.16(x). For such projects, FHWA shall follow the procedures in 36 CFR Part 800.
   7. At any time, NHDOT-BOE can choose to process a project by following the procedures in 36 CFR Part 800 rather than by following the procedures in this Agreement. For reasons such as known controversy, SHPO, ACHP, or FHWA may also request that NHDOT-BOE process a project by following the procedures in 36 CFR Part 800.
2. DEFINITIONS
   Terms used in this Agreement are defined in Appendix C of this Agreement.
3. PROFESSIONAL QUALIFICATIONS STANDARDS
   NHDOT-BOE shall employ, at a minimum, an archaeologist and an architectural historian to direct consultants who conduct Section 106 work, and to provide review and quality control on all Section 106 work. NHDOT-BOE Cultural Resources Program staff and all consultants who conduct Section 106 compliance work shall meet the Secretary of the Interior’s Professional Qualifications Standards. In the event of a temporary absence of the archaeologist or the architectural historian, NHDOT-BOE, FHWA, and SHPO shall closely coordinate to determine requirements needed to continue to meet the stipulations of this Agreement. In the event of a prolonged absence of the archaeologist or the architectural historian, or should NHDOT no longer employ either the archaeologist or the architectural historian, all active projects previously covered by this Agreement shall follow the Section 106 review process outlined in 36 CFR Part 800. For the purposes of this Agreement, a prolonged absence is defined as a period of no more than six (6) months. However, nothing in this stipulation may be interpreted to preclude FHWA or NHDOT or any agent or contractor thereof from using the services of persons who do not meet these qualifications standards, providing their activities are conducted under the supervision of a person who does meet the standards.
4. RESPONSIBILITIES
   The following section identifies the responsibilities of FHWA, the SHPO, and of NHDOT in complying with the terms of this Agreement.
   1. FHWA Responsibilities
      1. Consistent with the requirements of 36 CFR 800.2(a), FHWA remains legally responsible for ensuring that the terms of this Agreement are carried out and for all findings and determinations made pursuant to this Agreement by NHDOT under the authority of FHWA. At any point in the Section 106 process, FHWA may inquire as to the status of any project carried out under the authority of this Agreement and may participate directly in any project at its discretion.
      2. FHWA retains the responsibility for government-to-government consultation with Tribes as defined in 36 CFR 800.16(m). FHWA may ask NHDOT to assist in consultation if the individual Tribes agree to alternate procedures.
      3. FHWA shall be responsible for resolving disputes and objections pursuant to Stipulations XII of this Agreement.
      4. FHWA shall take the lead in any consultation with the ACHP for projects with active ACHP participation (36 CFR 800.6(b)(2)), and those involving the Secretary of the Interior.
      5. FHWA shall be responsible for resolving adverse effects pursuant to 36 CFR 800.6.
   2. NHDOT Responsibilities
      NHDOT, using staff and/or consultants meeting the Secretary of the Interior’s Professional Qualifications Standards, will independently perform the work and consultation described in 36 CFR 800.3 - 36 CFR 800.5 (including any succeeding revisions to the regulations) on behalf of FHWA. Assignment of these responsibilities is based on adequate and appropriate performance by NHDOT, as evaluated by FHWA pursuant to Stipulation XI.B of this Agreement. These responsibilities include carrying out the following requirements:
      1. 36 CFR 800.3(a) - Determine whether a project is a type of activity that has the potential to cause effects on historic properties.
      2. 36 CFR 800.3(b) - Coordinate with other reviews.
      3. 36 CFR 800.3(c) and (d) - Determine whether a project may occur on or has the potential to affect historic properties on tribal lands.
      4. 36 CFR 800.3(e) - Solicit public comment and involvement.
      5. 36 CFR 800.3(f) - Identify additional consulting parties who should be invited to participate in the projects covered by this Agreement.
      6. 36 CFR 800.4(a) - In consultation with the SHPO, determine and document the scope of identification efforts and level of effort, including the project’s area of potential effects (APE).
      7. 36 CFR 800.4(b) - In consultation with the SHPO, identify properties within the APE included in or eligible for listing in the National Register of Historic Places.
      8. 36 CFR 800.4 (c) - In consultation with the SHPO, evaluate historic significance of properties within the APE.
      9. 36 CFR 800.4(d) - Make findings of No Historic Properties Affected.
      10. 36 CFR 800.S(a) and (b) - In consultation with the SHPO, determine whether historic properties may be affected by a project by applying the criteria of adverse effect, and make findings of No Adverse Effect.
      11. Provide FHWA copies of all correspondence sent out on its behalf (e.g. letters to SHPO or Tribes).
      12. Complete project reviews pursuant to Stipulation VII of this Agreement.

      The NHDOT-BOE shall have sufficient financial resources and administrative support to efficiently, and adequately operate under this Agreement, and maintain databases and other tools necessary to implement the stipulations of this Agreement. Should the NHDOT-BOE, through its Cultural Resources Program, not be able to execute its internal review for a project qualifying for use of this Agreement as outlined under Stipulation IV.B, that project shall undergo the Section 106 review process outlined in 36 CFR 800.3-800.6.

   3. SHPO Responsibilities
      The SHPO reflects the interests of the State and its citizens in the preservation of their cultural heritage. In accordance with Section 101(b)(3) of the NHPA, 36 CFR Part 800, and this Agreement, the SHPO will advise and assist FHWA in carrying out its Section 106 responsibilities, and cooperate with NHDOT to ensure that historic properties are taken into consideration in the implementation of this Agreement.
5. CONSULTATION WITH TRIBES
   1. FHWA shall take the lead in identifying and establishing consultation with Native American Tribes consistent with the requirements of 36 CFR 800.2(c)(2) and 36 CFR 800.3(c)-(f). To assist FHWA, NHDOT may provide general coordination information to Tribes but FHWA shall retain ultimate responsibility for complying with all federal requirements pertaining to government-to-government consultation with Tribes.
   2. In accordance with 36 CFR 800.3(f)(2), any Tribes that might attach religious and cultural significance to historic properties in the APE shall be identified by NHDOT and invited by FHWA to be consulting parties.
   3. FHWA and NHDOT shall ensure that consultation with Tribes is initiated early in the project planning process to identify cultural, confidentiality, or other concerns and to allow adequate time for consideration.
   4. FHWA and NHDOT shall ensure that consultation continues with Tribes throughout the Section 106 review process prescribed by this Agreement whenever such Tribes express a concern about a project or about historic properties that may be affected by a project.
   5. FHWA may ask NHDOT to assist in consultation if the individual Tribes agree.
6. PARTICIPATION OF OTHER CONSULTING PARTIES AND THE PUBLIC
   1. Additional Consulting Parties
      Consulting parties shall be identified in writing by NHDOT in consultation with the SHPO pursuant to 36 CFR 800.3(c-f). Participation of the consulting parties in projects covered under this Agreement shall be governed by 36 CFR 800.3(f)(3). Written requests by individuals, organizations, and agencies to become consulting parties will be evaluated on a case-by-case basis by NHDOT and FHWA in consultation with the SHPO. Individuals and organizations with a demonstrated interest in a project shall be invited by NHDOT in consultation with FHWA to participate in the Section 106 process.
   2. Public Involvement
      1. Public involvement in planning and implementing projects covered by this Agreement shall be governed by FHWA’s and NHDOT’s environmental procedures. Procedures for involving the public shall include, at a minimum, the following:
         1. Sending contact letters, as appropriate, to local historic commissions, other governmental entities with jurisdiction, regional planning commissions, and other potential consulting parties in accordance with 36 CFR 800.2(c), 800.3(f), and 800.4(d);
         2. Coordinating directly with abutting property owners through meetings, letters, electronic communication, and telephone communication;
         3. On site meetings with concerned property owners, and/or;
         4. Presenting findings and soliciting input at public officials meetings, public informational meetings, and/or public hearings, as appropriate.

         Appendix E includes a list of organizations/agencies that should be considered when inviting consulting parties during the public involvement process.

      2. Public involvement and the release of information hereunder shall be consistent with 36 CFR 800.2(d), 800.3(e), and 800.ll(c)(l and 3).
      3. The NHDOT shall continue to seek and consider the views of the public in a manner that reflects the nature and complexity of the project and its effects on historic properties, and the likely interest of the public in the effects on historic properties, to remain consistent with the intent of 36 CFR Part 800, as amended.
      4. For those actions that do not routinely require public review and comment (e.g., projects with no potential to cause effects consistent with 36 CFR 8003.(a)(1)), appropriate public involvement should be based on the specifics of the situation and commensurate with the type and location of historic properties, and the project’s potential impacts on them.
      5. The NHDOT shall make FHWA and SHPO aware of any and all public controversy as it relates to the historic properties potentially affected by the proposed project, including, but not limited to, properties of religious and/or cultural significance to any Tribe.
7. PROJECT REVIEW
   This stipulation outlines the approach to cultural resources review for all projects in the Program, and provides a streamlined approach to Section 106 compliance for certain projects limited to activities with a known history of resulting in findings of no potential to cause effects, and no historic properties affected. For all projects undertaken pursuant to this Agreement, the following requirements shall be observed.
   1. Through this Agreement, FHWA and NHDOT establish two (2) categories of activities:
      1. ’Appendix A Activities:” activities with No Appreciable Potential to Cause Effects (To be applicable for processing under Appendix A, a project shall be limited to any combination of the activities listed in Appendix A of this Agreement); and
      2. “Appendix B Activities:” activities with Minimal Potential to Cause Effects (To be applicable for processing under Appendix B, a project shall be limited to any combination of the activities listed in Appendix B of this Agreement, with or without the inclusion of activities listed in Appendix A).

      Projects processed under Appendix A or Appendix B require different levels of review, and each has a demonstrated history of typically resulting in Section 106 findings of “No Potential to Cause Effects,” or “No Historic Properties Affected,” as defined in 36 CFR 800.3(a)(1), and 36 CFR 800.4(d)(1). Review shall follow the procedures outlined in Stipulation VII.B and VII.C below, as appropriate. Projects that do not conform to Appendices A or B shall follow the procedures in 36 CFR Part 800 and in Stipulation VII.D of this Agreement.

   2. Projects with No Appreciable Potential to Cause Effects (projects with activities limited to those listed in Appendix A)
      1. Certain projects have no potential to affect historic properties, whether or not there may be historic properties in the project area. The signatories to this Agreement agree that the activities listed in Appendix A, by their nature typically have “No Potential to Cause Effects” (36 CFR 800.3(a)(1)).
      2. The NHDOT may add additional activities to the list in Appendix A upon written notice to, and concurrence from, all parties to this Agreement, and the Agreement will not need to be amended.
      3. For all projects with activities limited to those listed in Appendix A, the project sponsor shall submit a hard copy of a completed Appendix A Certification Form to the NHDOT-BOE Cultural Resources Program for review. The NHDOT-BOE Cultural Resources Program shall evaluate whether a project is solely limited to the activities listed in Appendix A, and shall make a finding that the project has either No Potential to Cause Effects, or does not conform to Appendix A. The NHDOT­ BOE Cultural Resources Program shall provide the finding to the project sponsor and maintain such documentation in its files. The NHDOT-BOE Cultural Resources Program shall notify FHWA and SHPO of its use of the documentation on specific projects in an annual report to the signatories of this Agreement, as specified in Stipulation XI.
   3. Projects with Minimal Potential to Cause Effects (projects with activities limited to those listed in Appendix B)
      1. Certain projects have minimal potential to affect historic properties. The signatories to this Agreement agree that the activities listed in Appendix B, by their nature typically result in findings of “No Historic Properties Affected” (36 CFR 800.4(d)(1)).
      2. The NHDOT may add additional activities to the list in Appendix B upon written notice to, and concurrence from, all parties to this Agreement, and the Agreement will not need to be amended.
      3. For all projects with activities limited to those listed in Appendix B, the NHDOT­ BOE Cultural Resources Program shall ensure that a multidisciplinary approach is employed to initiate consultation, and identify and evaluate historic properties that may be affected, in accordance with the procedural requirements of 36 CFR 800.2, 36 CFR 800.3 and 36 CFR 800.4.
         1. The project sponsor shall initiate the Section 106 process in accordance with the regulations at 36 CFR 800.3, including establishing whether there is an undertaking, coordinating with other reviews, planning to involve the public, and identifying and inviting other consulting parties, as appropriate.
         2. The project sponsor shall coordinate with the public in accordance with Stipulation VI of this Agreement. Appendix E provides a list of typical organizations to consider as consulting parties.
         3. The NHDOT-BOE Cultural Resources Program shall determine whether archaeological or aboveground surveys are needed, utilizing rationale that include, but are not limited to, the following:
            1. The potential for the project to directly or indirectly impact the integrity of a potential historic property;
            2. Compromises to the physical integrity of a property more than 50 years old that could render it ineligible for the National Register;
            3. The degree of recent development and overall change within the APE;
            4. The density of potential historic properties in the area of the project;
            5. Modifications to the project that can be made to avoid impacts to potential historic properties;
            6. The potential archaeological sensitivity within the APE; and
            7. Information from consulting parties and others with knowledge of, or concerns with, historic properties within the APE.
         4. The NHDOT-BOE Cultural Resources Program shall assess potential impacts, including archaeological and aboveground sensitivity potential, to determine whether a project qualifies for processing under Appendix B. The project sponsor shall submit to the NHDOT-BOE Cultural Resources Program information required for the NHDOT-BOE Cultural Resources Program to complete its assessment, including an Appendix B Certification Form, topographical maps, photographs, design plans, as-built plans (if available), and two (2) original “Request for Project Review by the New Hampshire Division of Historical Resources for Transportation Projects” forms (Transportation RPR). The NHDOT-BOE Cultural Resources Program may waive the requirement for submittal of a Transportation RPR for projects where NHDOT is the project sponsor.
         5. For all work that is proposed within a designated or potential historic district, the NHDOT-BOE Cultural Resources Program will review the activities to determine whether they have the potential to alter, either directly or indirectly, the characteristics that qualify, or may qualify, the historic district for listing in the National Register. The NHDOT-BOE Cultural Resources Program will gather additional information, as necessary for the review on the historic district, including, but not limited to, the National Register of Historic Places, SHPO records, town websites, as well as municipal master plans, and other municipal records, as appropriate. Designated districts will be noted on the Appendix B Certification Form/RPR. Potential districts shall be treated as eligible resources. To determine whether the activities have an effect on an historic district(s), the NHDOT Cultural Resources Program will consider the characteristics that qualify, or may qualify, the historic district for the National Register following guidance in National Register Bulletin 15: How to Apply the National Register Criteria for Evaluation.
         6. The NHDOT-BOE Cultural Resources Program shall ensure that the project sponsor undertakes archaeological and/or aboveground surveys, as warranted, for any property within the APE that may be affected by a project, and that may be eligible for listing in the National Register of Historic Places, as outlined below, and in accordance with Stipulation III of this Agreement.
            1. Archaeological Phase IA surveys shall be conducted by the NHDOT­ BOE qualified professional archaeologist, or qualified professional consulting archaeologist(s).
            2. Studies beyond Phase IA archaeological reviews, as recommended by the NHDOT Archaeological Standards and Guidelines, and the determination of National Register eligibility of archaeological sites shall follow Stipulation VII.D of this Agreement.
            3. Aboveground reviews shall be conducted by the NHDOT-BOE qualified professional architectural historian, or qualified professional consulting architectural historian(s).
            4. As warranted, individual inventory or area forms shall be prepared in accordance with SHPO guidelines for properties within the APE in order to determine National Register eligibility.

            Project sponsors may address multiple steps simultaneously.

      4. Eligibility Findings
         

         The NHDOT-BOE Cultural Resources Program shall conduct National Register of Historic Places eligibility findings in accordance with Stipulation VII.D.1 of this Agreement, and 36 CFR 800.4.

      5. Effects Findings
         

         For projects with activities that are limited to those listed in Appendix B, with or without the inclusion of any activities listed in Appendix A, the NHDOT-BOE Cultural Resources Program shall make a finding that the project results in No Potential to Cause Effects, or No Historic Properties Affected, as appropriate, on the Appendix B Certification Form, and maintain documentation in its files. The NHDOT-BOE Cultural Resources Program shall notify FHWA, and the SHPO of its use of the documentation on specific projects in an annual report to the signatories of this Agreement, as specified in Stipulation XI.

         If a NHDOT-BOE Cultural Resources Program review under Stipulation VII.C determines that a project may affect (either adversely or not adversely) National Register-listed or eligible properties, or is not only limited to any one, or combination of, the activities listed in Appendix B, and thereby does not qualify for processing under Appendix B, with or without the inclusion of any activities listed in Appendix A, the NHDOT-BOE Cultural Resources Program shall utilize the Appendix B Certification Form to notify the project sponsor in writing that the project does not qualify for processing under Appendix B, and that the project will be reviewed in accordance with Stipulation VII.D of this Agreement, as appropriate.

         All documents submitted by the NHDOT-BOE Cultural Resources Program to SHPO for review under this Agreement shall include the SHPO Review and Compliance number, if known, as well as a statement that the information is being submitted pursuant to a review under this Agreement.

         Stipulation VII.D shall be followed for all projects for which adverse effects to historic properties cannot be avoided.

   4. Projects Not Covered by Appendix A or Appendix B
      

      For any project that either does not qualify for processing under Appendices A or B, or that includes within the APE, National Register-listed or eligible properties that the NHDOT-BOE Cultural Resources Program, in consultation with the SHPO, determines may be affected (either adversely or not adversely) by the project, as defined by criteria set forth in 36 CFR 800.5(a) and outlined in Stipulation IV.B of this Agreement, the NHDOT-BOE Cultural Resources Program shall review the project in accordance with this Stipulation.

      1. Eligibility Findings
         1. NHDOT-BOE Cultural Resources Program staff shall apply the National Register Evaluation Criteria in consultation with the SHPO and other consulting parties, as appropriate, to assess the need for any additional investigation and determine National Register eligibility in accordance with 36 CFR 800.4, and Stipulation IV.B.
         2. If the APE may contain properties of traditional cultural and religious significance to Native American Tribes, or identified properties within the APE may be of interest to Tribes, consultation under this Agreement will cease, and FHWA will initiate consultation with appropriate Tribes pursuant to 36 CFR 800.2(c)(2), and Stipulation V of this Agreement.
      2. Effects Findings
         

         NHDOT will apply the Criteria of Adverse Effect to any historic properties, in consultation with the SHPO, and other consulting parties, as appropriate, in accordance with 36 CFR 800.5.

         1. No Historic Properties Affected
            

            For any project for which the NHDOT-BOE Cultural Resources Program finds, in consultation with the SHPO, that either there are no historic properties present in the APE, or there are historic properties present but the project will have no effect upon them, the NHDOT-BOE Cultural Resources Program shall make a finding of no historic properties affected pursuant to 36 CFR 800.4(d)(1).

         2. No Adverse Effect
            

            For any project for which the NHDOT-BOE Cultural Resources Program finds, in consultation with the SHPO, that the effects do not meet the criteria of adverse effects outlined in 36 CFR 800.S(a)(1), or if the project is modified or conditions are imposed to avoid adverse effects, the NHDOT-BOE Cultural Resources Program shall make a finding of no adverse effect pursuant to 36 CFR 800.5(b).

            The NHDOT shall include the following documentation in the project file:

            1. Any records on consultation;
            2. Any records on efforts to identify historic properties;
            3. Any findings of eligibility;
            4. Any findings of effect; and
            5. Any records on resolving adverse effects.
         3. Adverse Effect
            

            For any project for which adverse effects to historic properties cannot be avoided, the NHDOT-BOE Cultural Resources Program will notify FHWA, and FHWA will take the Section I06 compliance lead, and notify the ACHP of the adverse effect and consult with the SHPO and other consulting parties in order to resolve adverse effects and conclude the Section I06 process in accordance with 36 CFR 800.6.

   5. Changes to the Scope of a Project
      

      Changes, or anticipated changes, to the design and/or scope of a project shall be coordinated with the NHDOT-BOE Cultural Resources Program. The NHDOT-BOE Cultural Resources Program staff shall be provided with sufficient information and time to allow for a complete reassessment of the modified project. As appropriate, the NHDOT-BOE Cultural Resources Program shall evaluate the revised project and alert the project sponsor as to whether:

      1. The project continues to qualify for processing under Appendix A or Appendix B, as applicable,
      2. Additional or revised certification forms are required for a complete and thorough reassessment, and/or
      3. The project will be processed under Stipulation VII.D of this Agreement.
8. EMERGENCY SITUATIONS
   For the purposes of this Agreement, emergencies are defined as occurrences that require emergency highway system and facility repairs that are necessary to 1) protect the life, safety, or health of the public; 2) minimize the extent of damage to the highway system and facilities; 3) protect remaining highway facilities; or 4) restore safe roadway travel. The following stipulations apply to emergency situations:
   1. Repairs to address emergency situations as defined above can occur regardless of funding category, and regardless of declarations made by federal, state, or local agencies.
   2. If the emergency repair project could affect historic properties, NHDOT-BOE’s Cultural Resources Program staff shall notify the SHPO, the FHWA, and Tribes prior to any work taking place. The SHPO and any Tribe that may attach religious and cultural significance to historic properties likely to be affected will have 72 hours to respond.
   3. For projects where the repair must be made within the first 30 days of the occurrence of the event that caused the emergency or the declaration of the emergency by an appropriate authority, the processing of environmental documentation will happen concurrently or after the fact. In these cases, NHDOT will comply with the procedures in Stipulation VII of this Agreement to the extent possible, but the reviews will likely be conducted after the emergency work is completed.
   4. For projects taking longer than 30 days for repair, NHDOT will comply with the procedures in Stipulation VII.
   5. Written notification of an emergency action shall be provided to the SHPO. The notice shall be clearly and prominently marked as an emergency notification, and shall include an explanation of how the action meets the requirements for emergency as defined herein. The notice shall also include a brief description of the eligibility and/or significance of the resource(s) involved, the nature, effect, and anticipated effect of the emergency action on the resource(s), dated photograph(s) if available, and the anticipated time frame available for comment.
9. POST-REVIEW AND UNANTICIPATED DISCOVERIES
   1. Planning for Subsequent Discoveries
      

      When NHDOT’s reasonable and good faith identification efforts indicate that historic properties are likely to be discovered during implementation of a project, NHDOT shall include in any environmental document, contract, and specifications a plan for discovery of such properties. Implementation of the plan as originally proposed, or modified as necessary owing to the nature and extent of the properties discovered, will be in accordance with 36 CFR 800.4-6.

   2. Unanticipated Discoveries Without Prior Planning
      1. If previously unidentified archaeological or historic properties, or unanticipated effects, are discovered after NHDOT has completed its review under this Agreement, that portion of the project will stop immediately.
      2. No further construction in the area of discovery will proceed until the requirements of 36 CFR 800.13 have been satisfied, including consultation with Tribes that may attach traditional cultural and religious significance to the discovered property.
      3. NHDOT will consult with SHPO and Tribes, as appropriate, to record, document, and evaluate National Register eligibility of the property and the project’s effect on the property, and to design a plan for avoiding, minimizing, or mitigating adverse effects on the eligible property.
      4. If neither the SHPO nor a Tribe files an objection within 72 hours of NHDOT’s plan for addressing the discovery, NHDOT may carry out the requirements of 36 CFR 800.13 on behalf of FHWA, and the ACHP does not need to be notified.
10. IDENTIFICATION AND TREATMENT OF HUMAN REMAINS
    In the event that human remains are identified prior to, or during construction, that portion of the project shall stop immediately, and the area shall be protected and the project sponsor shall immediately notify the county medical examiner pursuant to NH RSA 227-C:8-a. If the remains are determined to be the responsibility of the State Archaeologist, the project sponsor will develop a treatment plan in consultation with NHDOT-BOE Cultural Resources Program, FHWA and the SHPO. Any human remains discovered 01;1 non-federal lands shall be guided by NH RSA 227-C:8-a through 8-g. If it is determined that the human remains are associated with Native American occupation, FHWA and NHDOT shall immediately consult with any federally recognized Native American Tribe or Tribes that may ascribe traditional cultural and religious significance to the remains. Native American human remains discovered on federal or tribal lands shall be treated in accordance with the Native American Graves Protection and Repatriation Act (P.L. 101-106). If the human remains are determined not to be associated with Native American occupation, the provisions of NH RSA 227-C:8-e through 8g shall govern.
11. MONITORING AND REPORTING
    1. NHDOT-BOE, FHWA, and SHPO shall meet annually after the date this Agreement takes effect to evaluate the agencies’ joint functioning under this Agreement, and identify actions needed to advance long-term planning goals. Prior to any such meetings, the ACHP shall be notified and may participate at its discretion. Prior to the annual evaluations NHDOT-BOE shall submit a report of the current activities under this Agreement to FHWA, SHPO, and ACHP. This report shall include, but is not limited to:
       1. A table identifying all projects processed under this Agreement, specifying project names, state and federal numbers, towns, any other pertinent information, and all findings pursuant to 36 CFR Part 800 that were processed by NHDOT-BOE for the year under review, and
       2. A narrative description summarizing accomplishments, trends, concerns, resource needs, recommendations, etc., regarding any aspect of this Agreement.
    2. FHWA shall undertake a program review of the provisions of this Agreement no more than every five (5) years after the date of execution of this Agreement to ensure that the Agreement is working as intended. The monitoring effort shall consist of a review of project records and interviews of staff at NHDOT, SHPO, as well as interviews with other consulting parties.
12. DISPUTE RESOLUTION
    1. Should any signatory party object in writing to FHWA regarding the manner in which the terms of this Agreement are carried out, FHWA will immediately notify the other signatory parties of the objection and proceed to consult with the objecting party to resolve the objection. FHWA will honor the request of any signatory party to participate in the consultation and will take any comments provided by such parties into account. The FHWA shall establish a reasonable time frame for such consultations.
    2. If the SHPO, or another consulting party objects to a NHDOT eligibility finding pursuant to 36 CFR 800.4(c) and Stipulation IV.B of this Agreement, NHDOT will work to resolve the objection through consultation. If NHDOT is able to resolve the objection, the disputed action will proceed in accordance with the terms of the resolution. If NHDOT is unable to resolve the objection, the objection will be referred to FHWA who will follow the requirements of 36 CFR 800.4(c)(2) and 36 CFR Part 63 to resolve the objection.
    3. If the SHPO or another consulting party objects to a NHDOT effect finding pursuant to 36 CFR 800.5 and Stipulation IV.B of this Agreement, NHDOT will work to resolve the objection through consultation. If NHDOT is able to resolve the objection, the disputed action will proceed in accordance with the terms of such resolution. If NHDOT is unable to resolve the objection, the objection will be referred to FHWA who will follow the requirements of 36 CFR 800.5(c)(2) to resolve the objection.
    4. FHWA shall provide all other signatory parties to this Agreement with a written copy of its final decision regarding any objection addressed pursuant to this stipulation.
    5. FHWA may authorize any action subject to objection under this stipulation to proceed, provided the objection has been resolved in accordance with the terms of this stipulation.
    6. At any time during implementation of the terms of this Agreement, should any member of the public raise an objection in writing pertaining to such implementation to any signatory party to this Agreement, that signatory party shall immediately notify FHWA. FHWA shall immediately notify the other signatory parties in writing of the objection. Any signatory party may choose to comment on the objection to FHWA. FHWA shall establish a reasonable time frame for this comment period. FHWA shall consider the objection, and in reaching its decision, FHWA will take all comments from the other parties into account. Within 15 days following closure of the comment period, FHWA will render a decision regarding the objection and respond to the objecting party. FHWA will promptly notify the other parties of its decision in writing, including a copy of the response to the objecting party. FHWA’s decision regarding resolution of the objection will be final. Following the issuance of its final decision, FHWA may authorize the action subject to dispute hereunder to proceed in accordance with the terms of that decision.
13. AMENDMENT
    1. Any signatory party to this Agreement may at any time propose amendments, whereupon all signatory parties shall consult to consider such amendment. This Agreement may be amended only upon written concurrence of all signatory parties.
    2. Each attachment to this Agreement may be individually amended through consultation of the signatory parties without requiring amendment of the Agreement, unless the signatory parties through such consultation decide otherwise.
14. TERMINATION
    1. Any signatory party may terminate this agreement. If this Agreement is not amended as provided for in Stipulation XIII, or if any signatory party proposes termination of this Agreement for other reasons, the party proposing termination shall notify the other signatory parties in writing, explain the reasons for proposing termination, and consult with the other parties for no more than 30 days to seek alternatives to termination.
    2. Should such consultation result in an agreement on an alternative to termination, the signatory parties shall proceed in accordance with that agreement.
    3. Should such consultation fail, the signatory party proposing te1mination may terminate this Agreement by promptly notifying the other parties in writing.
    4. Should this Agreement be terminated, FHWA would carry out the requirements of 36 CFR Part 800 for individual projects.
    5. Beginning with the date of termination, FHWA shall ensure that until and unless a new Agreement is executed for the actions covered by this Agreement, such projects shall be reviewed individually in accordance with 36 CFR Part 800.
15. CONFIDENTIALITY

    All parties to this Agreement acknowledge that information about historic properties, potential historic properties, or properties considered historic for purposes of this Agreement are, or may be, subject to the provisions of Section 304 of the NHPA. Section 304 allows FHWA to withhold from disclosure to the public, information about the location, character, or ownership of a historic resource if NHDOT or SHPO recommends to FHWA that disclosure may 1) cause a significant invasion of privacy; 2) risk harm to the historic resource; or 3) impede the use of a traditional religious site by practitioners. Having so acknowledged, all parties to this Agreement will ensure that all actions and documentation prescribed by this Agreement are, where necessary, consistent with the requirements of Section 304 of the NHPA.

16. TRANSITION

    This Agreement shall become effective upon the date of its execution by all parties. Any projects where the Section 106 process has started prior to the signing of this document may follow the process outlined in 36 CFR Part 800, the earlier Programmatic Agreement signed on November 26, 2014, or this Programmatic Agreement, as appropriate.

17. DURATION OF AGREEMENT

    This Agreement shall remain in effect for a period of five (5) years after the date it takes effect, unless it is terminated prior to that time pursuant to Stipulation XIV of this Agreement. This Agreement shall be reviewed by all parties on an annual basis for modification or termination in accordance with Stipulation XI. If no changes are proposed and no party objects within the first five (5) year term, the term of the Agreement shall be extended automatically for another five (5) years without re­-execution.

SIGNATURES

Execution and implementation of this agreement evidences that FHWA has delegated certain Section 106 responsibilities to NHDOT, and has afforded ACHP a reasonable opportunity to comment on the Program and its individual projects in NH; that FHWA has taken into account the effects of the Program and its individual projects on historic properties, and that FHWA has complied with Section 106 of the NHPA and 36 CFR Part 800 for the Program and its individual projects.

The parties hereby acknowledge and reaffirm their commitment to perform all duties set forth in this Agreement.

This Agreement may be executed in counterparts, with a separate page for each signatory. The FHWA shall ensure that each party is provided with a copy of the fully executed Agreement.

Programmatic Agreement Regarding Transportation Projects in New Hampshire

Federal Highway Administration, New Hampshire Division
Patrick A. Bauer, Division Administrator | 8-18-18

New Hampshire Division of Historical Resources
Elizabeth H. Muzzey, State Historic Preservation Officer | 8/6/18

Advisory Council on Historic Preservation
John M. Fowler, Executive Director | 8/24/18

New Hampshire Department of Transportation
Victoria F. Sheehan, Commissioner | 5/7/18