State Section 106 Programmatic Agreement

PROGRAMMATIC AGREEMENT
AMONG
THE FEDERAL HIGHWAY ADMINISTRATION,
THE OKLAHOMA DEPARTMENT OF TRANSPORTATION,
THE OKLAHOMA STATE HISTORIC PRESERVATION OFFICER,
AND THE ADVISORY COUNCIL ON HISTORIC PRESERVATION
REGARDING
THE STREAMLINING OF SECTION 106 REVIEW FOR PROJECTS
INVOLVING BRIDGES CONSTRUCTED UNDER DEPRESSION-
ERA FEDERAL RELIEF PROGRAMS (1933-1945)

WHEREAS, the Federal Highway Administration (FHWA) has determined that the construction and improvement of highways and bridges with Federal Aid Highway funds (Federal-aid) to the Oklahoma Department of Transportation (ODOT) may affect bridges that were constructed under the Depression-era federal relief programs (1933-1945) [federal relief programs] and that are listed in or eligible for listing in the National Register of Historic Places (NRHP) [historic bridges];

WHEREAS, FHWA, ODOT, and the SHPO recognize the significant impacts of the federal relief programs on Oklahoma’s economy, especially those that constructed infrastructure, including bridges;

WHEREAS, due to the number and common types of bridges associated with the federal relief programs and the need to replace those that have deteriorated so that they are unable to function adequately, FHWA, ODOT, the SHPO, and the ACHP believe that a programmatic approach to streamline the Section 106 process will expedite necessary transportation improvement projects and produce more meaningful mitigation of adverse effects to historic bridges;

WHEREAS, in 1993 ODOT completed an inventory and evaluation of metal truss and concrete and stone arch bridges constructed before 1955 entitled Spans of Time: Oklahoma Historic Highway Bridges and updated it in 2007. To supplement this work, FHWA and ODOT initiated a study entitled Depression-era Bridges and Road-related Resources, 1933-1945; Historic Context and National Register of Historic Places Evaluation (hereinafter referred to as the “Study”) to inventory and evaluate Depression­ era bridges constructed between 1933 and 1945 (subject bridges), concentrating on those associated with federal relief programs;

WHEREAS, ODOT has completed the Study and made it publicly available at http://www.odotculturalresources.info/depression-era-works-programs.html;

WHEREAS, ODOT in consultation with the SHPO, developed three Categories of depression-era bridges in the Study to identify those individual structures and concentrations of structures that convey their historical significance through association with a federal relief program and that retain their integrity which are described below:

• Category 1 Structures - 1,097 common bridges and culverts listed in Appendix C of the Study that are undistinguished from an engineering or architectural perspective and lack the integrity to convey their significance (see A Context for Common Historic Bridge Types. NCHRP Project 25-25, Task 15, October 2005);
• Category 2 Structures - 2,366 bridges listed in Appendix D of the Study that do not meet the themes identified in the Study that require no further individual review to assess their NRHP eligibility;
• Category 3 Structures - 50 individual bridges and 98 clusters or concentrations of bridges are listed in Appendix E of the Study. Upon initial review of bridge inspection files, these structures appeared to convey their historical significance through association with a Depression-era federal relief program and therefore warranted further individual evaluation to determine their NRHP eligibility;

WHEREAS, FHWA consulted with the Advisory Council on Historic Preservation (ACHP) and the Oklahoma State Historic Preservation Officer (SHPO) pursuant to 36 CFR 800.14(6) of the regulations implementing Section 106 of the National Historic Preservation Act of 1966 (Section 106) (54 U.S.C. § 306108);

WHEREAS, in May and June 2013, ODOT contacted Oklahoma’s seventy-seven county governments and seventy-eight municipalities that own bridges from this time period and informed them of ODOT’s intent to complete this study and evaluation;

WHEREAS, on April 1, 2014, ODOT contacted 15 Main Street Managers and Certified Local Government (CLG) coordinators for municipalities that have bridges located within their city limits and informed them of ODOT’s intent to complete this study and evaluation;

WHEREAS, ODOT and FHWA contacted 38 Federally-recognized Indian tribes (Tribes) with ancestral lands and current jurisdictional boundaries in Oklahoma about this Agreement and provided a link to the supporting studies: http://www.odotculturalresources.info/depression-era-works-programs.html;

WHEREAS, ODOT and FHWA consulted with the Historic Bridge Foundation, the Oklahoma Historic Bridge and Highway Group, and Preservation Oklahoma, Inc. regarding the survey project intent, its status, and the Programmatic Agreement;

WHEREAS, in order to expand the use of the context studies on which this Programmatic Agreement is based, it is the intent of SHPO that other federal agencies planning federal undertakings in Oklahoma may utilize the studies, procedures and stipulations in this Agreement to satisfy their Section 106 obligations with respect to 1933-1945 Depression-era bridges and culverts;

WHEREAS, nothing in this Programmatic Agreement absolves FHWA, ODOT, or any other federal agencies that may use this Agreement from the obligation to comply with the Section 106 consultation process with respect to the identification, assessment, and treatment of other types of objects, structures, buildings, sites, and districts located within the area of potential effect of an undertaking and which are listed in or may be eligible for inclusion in the National Register of Historic Places; and

NOW, THEREFORE, FHWA, ODOT, SHPO, and ACHP are signatories to this Programmatic Agreement and agree that the Federal aid programs in the State of Oklahoma that may impact Federal relief program bridges shall be implemented in accordance with the following Stipulation to satisfy FHWA’s Section 106 responsibilities for its Undertakings and integrate historic preservation compliance considerations into the planning of these undertakings.

STIPULATIONS

In coordination with ODOT, FHWA will ensure that the following measures are implemented:

I. Public Outreach

1. Within three (3) years of the execution of this agreement, ODOT shall produce, or cause to be produced, a citizen’s guide to the Programmatic Agreement or a public version of the context developed for federal relief program Bridges in Oklahoma (with photographs) and make it publicly accessible on its website cited above.
2. Within three (3) years of the execution of this Agreement, ODOT shall produce an interactive Google Earth layer and make it available on its website. QDOT shall provide the information to any federal/state agency or other interested party upon request. The interactive layer will illustrate the location of all bridges constructed between 1933 and 1945 that have a confirmed association with a federal relief program. The location points will allow the user to retrieve an inventory form for each structure. Photographs will be provided for those warranting further evaluation to determine their NRHP eligibility as individual properties or as contributing resources to a concentration of structures. A narrative description and statement of significance will be provided for structures determined eligible for the NRHP as individual properties or as contributing resources to a concentration of structures.

II. Streamlined Section 106 Review Process

1. Based on the Study, FHWA and ODOT will consider the following bridge Categories to be exempted from individual consideration as historic properties subject to Section 106 in the planning and development of federal-aid projects. However, all other historic properties within the direct or indirect area of potential effect (APE) of a federal-aid project shall be reviewed as such pursuant to the requirements of 36 CFR Part 800.
   1. Category 1 Structures. The 1,097 bridges identified in Appendix C of the Study as “concrete culverts (reinforced),” “steel culverts,” or “small structures” shall require no further evaluation to determine NRHP eligibility and are exempt from further consideration under Section 106
   2. Category 2 Structures. The 2,366 bridges that do not meet the themes identified in Appendix D of the Study shall require no further evaluation to determine NRHP eligibility and are exempt from further consideration under Section 106, with the exception of those located on one of Oklahoma’s four National Scenic Byways.
2. Category 3 Structures: For those bridges listed in Appendix E of the Study, ODOT will carry out case-by-case Section 106 evaluation to determine their NRHP eligibility and assess the adverse effects of an undertaking pursuant to 36 CFR Sections 800.4 and 800.5. If determined eligible for inclusion in the National Register of Historic Places, the following abbreviated process to resolve adverse effects may be followed to resolve any adverse effects:
   1. Abbreviated Consultation Process: After taking into consideration the significance of the historic properties affected, the nature of the adverse effect(s), and avoidance or minimization of the adverse effect(s), FHWA and ODOT may propose in writing to the consulting parties to resolve the adverse effects of the Undertaking through the application of one or more Treatment Measures outlined in Appendix A.
   2. If SHPO and other consulting parties concur with FHWA, and provided there are no other historic properties which may be adversely affected by the Undertaking, the use of these Treatment Measures shall not require the execution of a project-specific Memorandum of Agreement (MOA) or Programmatic Agreement. FHWA will provide the ACHP with an adverse effect notice in accordance with 36 CFR § 800.6(a)(1), stating that adverse effects will be resolved by use of the standard Treatment Measures identified in this Agreement.
   3. In consultation with the SHPO and other consulting parties. FHWA and ODOT shall propose in writing the implementation of a specific Treatment Measure, or combination of Treatment Measures, with the intent of expediting the resolution of adverse effects, and provide documentation as required by 36 CFR § 800.11(e) and subject to the confidentiality provisions of 36 CPR § 800.11(c).
   4. Unless a consulting party objects within 15 days of receipt of FHWA’s and ODOT’s proposal, FHWA and ODOT may proceed with the implementation of the Treatment Measure(s) to conclude the Section 106 review.
   5. If any of the consulting patties object within the 15 day review and comment period to the resolution of adverse effects through the application of the Abbreviated Consultation Process, FHWA and ODOT shall resolve the adverse effect(s) using procedures outlined in 36 CPR Part 800.6 and proceed to develop an individual MOA in consultation with the SHPO, other consulting parties, and ACHP as appropriate.
   6. Because implementation details of Treatment Measures for specific Undertakings may vary by project, FHWA and ODOT shall provide written notice to the SHPO and other consulting parties within sixty (60) days of the completion of the Treatment Measure(s). This written notice will serve as confirmation that the Treatment Measure(s) for a specific Undertaking have been implemented.
   7. FHWA will submit an annual report to the SHPO and ACHP each year the agreement is in effect with the first report due on October 15, 2016. The report shall indicate the number of undertakings implemented pursuant to the agreement, and document the use of the standard treatment options to mitigate adverse effects.
3. Memorandum of Agreement: Following the process above, if there are other historic properties that may be adversely affected, or if for any other reason, FHWA and ODOT in consultation with the SHPO and other consulting parties may determine that an individual MOA would be more appropriate to resolve adverse effects. In consultation with the SHPO and other consulting parties, including the ACHP (if participating), FHWA and ODOT shall develop an MOA, in accordance with 36 CPR § 800.6(c) to stipulate agreed upon treatment measures to avoid, minimize, and/or mitigate adverse effects on historic properties.

III. Standard Section 106 Review

1. All other historic properties shall be subject to standard Section 106 review as set forth in the ACHP’s regulations (36 CPR Part 800), including project-specific consultation with Native American tribes and Federal relief programs bridges not covered by Section II, above.

IV. 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 essential traffic. FHWA and ODOT have entered into an “Addendum” to an existing “Programmatic Agreement Among the Federal Emergency Management Agency, the Oklahoma State Preservation Officer, the Oklahoma Archeological Survey and the Oklahoma Department of Emergency Management” to include The Federal Highway Administration Oklahoma Division and the Oklahoma Department of Transportation regarding emergency situations. This agreement encompasses Section 106 consultation for any present and future emergency declarations in Oklahoma.

V. Amendments

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,
3. Appendix A (Treatment Measures) may be amended at the request of FHWA or another Signatory. FHWA, on its own behalf or on behalf of another Signatory, shall notify the Signatories of the intent to modify the current Appendix and shall provide a draft of the updated Appendix to all signatory parties. If no other Signatory objects in writing within 30 days of receipt of FHWA’s proposed modification, FHWA shall date and sign the amended Appendix and provide a copy of the amended Appendix to the other Signatories.
4. A fully executed copy of the amendment, including any attachments, exhibits, and appendices, must be filed with the ACHP. Such an amendment shall go into effect on the date the Amendment is filed with the ACHP.

VI. Resolving Objections to Implementation of this Agreement

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 objection is resolved through consultation, FHWA may authorize the disputed action to proceed in accordance with the terns of such resolution.
3. If after initiating such consultation, FHWA determines that the objection cannot be resolved through consultation, FHWA shall forward all documentation relevant to the objection to the Council and other signatory parties, including FHWA’s proposed response to the objection. Within 30 days after receipt of all pertinent documentation, Council shall exercise one of the following options:
   1. Advise FHWA that Council concurs in FHWA’s proposed response to the objection, whereupon FHWA will respond to the objection accordingly; or
   2. Provide FHWA with recommendations, which FHWA shall take into account in reaching a final decision regarding its response to the objection; or
   3. Notify FHWA that the objection will be referred for comment pursuant to 36 CFR 800.7(a)(4) and proceed to refer the objection and comment. In this event, FHWA shall ensure that the Agency Official is prepared to take the resulting comments into account in accordance with 36 CFR 800.7(a)(4).
4. Should Council not exercise one of the foregoing options within 30 days after receipt of all pertinent documentation, FHWA may assume Council’s concurrence in its proposed response to the objection.
5. FHWA shall take into account any Council recommendation or comment and any comments from the other signatory parties to this Agreement in reaching a final decision regarding the objection. FHWA’s responsibility to carry out all actions under this Agreement that are not the subjects of the objection shall remain unchanged.
6. 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.
7. FHWA may authorize any action subject to objection under this Stipulation to proceed, provided the objection has been resolved in accordance with the terns of this Stipulation.
8. 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.

VII. Severability and Termination

1. FHWA, ODOT, the SHPO, or ACHP may terminate this Agreement by providing 30 days written notice to the other Signatories, provided that the Signatories consult during this period to seek amendments or other actions that would prevent termination. If this Agreement is terminated, FHWA shall comply with Section 106 through other applicable means pursuant to 36 CFR Part 800 regarding individual actions which would otherwise be covered by the terms of this agreement. Upon such determination, FHWA shall provide all other Signatories and the ACHP with written notice of the termination of this Agreement.
2. This Agreement may be terminated by the implementation of a subsequent Agreement, pursuant to 36 CFR § 800.14(b), that explicitly terminates or supersedes this Agreement, or by FHWA’s implementation of Alternate Procedures, pursuant to 36 CFR § 800.14(a).

VIII. Initiation, Duration and Extension

1. Implementation of the streamlining measures and procedures outlined in this Agreement may begin immediately upon the Agreement’s execution by all Signatories. This Agreement shall remain in effect from the date of execution for a period not to exceed 10 years, with reviews at five years and six months prior to the 10-year mark unless otherwise extended pursuant to Stipulation VII.B below, or terminated pursuant to Stipulation VI.B. or VI.C. above, Severability and Termination.
2. The Signatories may collectively agree to extend this Agreement to cover an additional 10 years, or portion thereof, through an amendment per Stipulation IV.A., provided that the original Agreement has not expired. There shall be no limit on the number of times this agreement can be extended.

EXECUTION AND IMPLEMENTATION of this Agreement evidence that the FHWA has satisfied its responsibilities for all individual undertakings concerning Federal Aid projects that involve federal relief program bridges in Oklahoma. It does not address other types of resources that may be affected as a result of the Federal-Aid Highway Program

SIGNATORIES

Gary M. Corino, Division Administrator, Federal Highway Administration
Date: 10.19.15

John M. Fowler, Executive Director, Advisory Council on Historic Preservation
Date: 10/22/15

Bob L. Blackburn, Oklahoma State Historic Preservation Officer
Date: Oct. 14, 2015

Mike Patterson, Director, Oklahoma Department of Transportation
Date: 10/19/15