Improving the Efficiency and Consistency of Section 106 Compliance for State DOTs: Strategies for Project-Level Programmatic Agreements and Postwar Commercial Properties

Under Section 106 of the National Historic Preservation Act (NHPA), when a transportation project involves federal funding, licensing, or permitting, transportation agencies must identify and evaluate properties that are listed or eligible for listing in the National Register of Historic Places (NRHP). Section 106 also requires that transportation agencies determine if a project will have adverse effects on historic properties and how those effects can be resolved. Experience has shown that successful and timely completion of Section 106 consultation can be a challenge when, for instance, it is initiated too late in the project development process, or when it involves complex projects, large numbers of consulting parties, or ubiquitous or understudied property types. State departments of transportation (DOTs) continue to seek ways to better fulfill their Section 106 responsibilities while also supporting expedited project delivery schedules and managing agency resources effectively. Two valuable strategies are (1) the use of project-level programmatic agreements (PAs) and (2) a robust approach to context development, identification, and evaluation of a challenging property type. The Advisory Council on Historic Preservation (ACHP) describes PAs in this way: "PAs generally fall into two types: "project PAs" and "program PAs." There are occasions where completing the Section 106 process prior to making a final decision on a particular undertaking is not practical. The regulations allow an agency to pursue a "project PA" (36 CFR § 800.14(b)(3)), rather than a [Memorandum of Agreement] (MOA) under certain circumstances. The most common situation where a project PA may be appropriate is when, prior to approving the undertaking, the federal agency cannot fully determine how a particular undertaking may affect historic properties or the location of historic properties and their significance and character. For instance, the agency may be required by law to make a final decision on an undertaking within a timeframe that simply cannot accommodate the standard Section 106 process, particularly when the undertaking's area of potential effects encompasses large areas of land or when the undertaking may consist of multiple activities that could adversely affect historic properties." (https://www.achp.gov/do_you_need_a_Section_106_agreement). By stipulating commitments in a project-level PA, Section 106 can be administratively completed earlier in project development. Such agreements structure the Section 106 consultation process to align with expedited project delivery schedules, which are often a feature of design build (DB) or public-private partnership (P3) contracting arrangements; some state DOTs are also considering project-level PAs in connection with EO 13807 (One Federal Decision). A recent study documented current practice in program-level PAs, in which FHWA delegates certain Section 106 responsibilities to a state DOT, (NCHRP 25-25 Task 107 available at https://apps.trb.org/cmsfeed/TRBNetProjectDisplay.asp?ProjectID=4103); however, the full range of how project-level PAs are being used by state DOTs is not well documented and practitioners often rely on anecdotal information about developing and implementing these agreements. The second strategy—a robust methodology for assessing challenging properties—is especially needed for commercial properties in urban, suburban, and rural areas constructed from 1945 to 1980. Because of the large number of properties dating from this postwar era, state DOTs and other agencies must dedicate considerable staff and other resources to meet these evaluation requirements. The diverse forms of these property types reflect the various trends of the period. For example, from 1945 to 1960, rapid, automobile-oriented suburbanization prompted the construction of drive-up and drive-thru restaurants. The energy crisis of the 1970s influenced commercial design forms and materials choices. Other forces may be relevant in some regions of the country, such as corporate consolidation and changes in environmental regulation (e.g., regulation of underground storage tanks that triggered closings and abandonments of gas stations) in the 1980s or 1990s. Many commercial properties built from 1945 to 1980 were completed by major architectural firms or by companies that produced innovative new materials and construction methods, thus reflecting the nation’s architectural, social, and cultural heritage. Even more properties were constructed using locally derived designs and materials (e.g., small, single story, cinder block grocery stores). These vernacular properties can also be significant, if, for example, they represent a common architectural form or contribute to a historic district. Apart from potential historic eligibility, postwar commercial properties are valued resources in many communities. NCHRP Report 723: A Model for Identifying and Evaluating the Historic Significance of Post-World War II Housing provides a national historic context and National Register eligibility guidelines for postwar houses and residential subdivisions. However, little guidance is available for postwar commercial properties such as gas stations, shopping centers, drug stores, office buildings, restaurants, and other non-residential properties. As a result, evaluations of these property types require significant time and staff resources. Inconsistent approaches also provide regulatory partners with inconsistent information, which means more time may be needed to complete consultation, resulting in project delays. Further, the volume of postwar property evaluations can be overwhelming for state DOTs, FHWA division offices, state historic preservation officers (SHPOs), and tribal historic preservation officers (THPOs). Research is needed to provide state DOTs, their regulatory partners, and other stakeholders with guidance on how to adopt and implement these two strategies. The objective of this research is to equip state DOTs, SHPOs, THPOs, and other partners to improve their efforts in meeting their Section 106 responsibilities in two major areas of practice by providing: (1) A review of current use of and best practices and lessons learned in the development and implementation of project-level PAs; and (2) A structured, replicable methodology for context development, identification, and evaluation of common commercial property types built between 1945 and 1980.

Language

  • English

Project

  • Status: Active
  • Funding: $500000
  • Contract Numbers:

    Project 25-62

  • Sponsor Organizations:

    National Cooperative Highway Research Program

    Transportation Research Board
    500 Fifth Street, NW
    Washington, DC  United States  20001

    Federal Highway Administration

    1200 New Jersey Avenue, SE
    Washington, DC  United States  20590

    American Association of State Highway and Transportation Officials (AASHTO)

    444 North Capitol Street, NW
    Washington, DC  United States  20001
  • Project Managers:

    Hartell, Ann

  • Performing Organizations:

    Mead & Hunt, Incorporated

    Lansing, MI  United States 
  • Principal Investigators:

    Pettis, Emily

  • Start Date: 20200415
  • Expected Completion Date: 20230414
  • Actual Completion Date: 0

Subject/Index Terms

Filing Info

  • Accession Number: 01707521
  • Record Type: Research project
  • Source Agency: Transportation Research Board
  • Contract Numbers: Project 25-62
  • Files: TRB, RiP
  • Created Date: Jun 3 2019 3:18PM