MAXIMIZING THE VALUE OF PROJECT-LEVEL

PROGRAMMATIC AGREEMENTS IN SECTION 106

CONSULTATION

Antony Opperman, Cultural Resources Program Manager

2018 Joint AASHTO Committee Meeting, Spokane, Washington

July 19, 2018

• 36 CFR 800.14(b): “…resolution of adverse effects from

certain complex project situations …”

• 36 800.14(b)(1)(ii): “When effects on historic properties cannot be

fully determined prior to approval of an undertaking …”

• 36 CFR 800.14(b)(1)(iii): “When nonfederal parties are delegated

major decision making responsibilities …”

• 36 CFR 800.14(b)(3): “Developing programmatic agreements for

complex or multiple undertakings” refers back to 36 CFR 800.6,

“Resolution of Adverse Effects”

Authorities

Virginia Department of Transportation

• Statewide Federal PA

• Stipulation II.B.4.c: VDOT has standing to resolve adverse effects viz.

36 CFR 800.6, including preparation and execution of agreements.

• Stipulation II.B.3.e: VDOT may perform phased identification of

historic properties for projects with “multiple alternatives,

alignments, or corridors”, specifically deferring archaeology, usually

after a preferred alternative is identified (also 36 CFR 800.4(b)(2)).

• When Used

• Typically for large, multiple alternative projects (NEPA: EA or EIS).

• Use assumes that adverse effects could occur even if they do not.

Consistency with Statewide Federal PA; When Used

Virginia Department of Transportation

• Multiple-alternative harbor crossing expansion, including new

bridge-tunnel

• Multiple historic properties adjacent to corridor including

National Historic Landmarks, significant constraints

• Major PA Elements:• Avoidance commitments to avoid adverse effects

• Deferred terrestrial and underwater archaeological surveys, preferred alternative

only

• Design-builder or P-3 concessionaire given standing to consult directly with SHPO,

FHWA and consulting parties in carrying out commitments (with VDOT oversight)

• Reassessment of effects as design proceeds

Example: Hampton Roads Crossing Study (HRCS)

Virginia Department of Transportation

HRCS Location

Virginia Department of Transportation

HRCS: Emancipation Oak

Virginia Department of Transportation

July 10, 2015: Section 106 consultation initiated

April 2016: Architecture survey & archaeological assessment complete;

SHPO agrees that any archaeological sites would satisfy 4(f) exemption

July 2016: Draft SEIS issued

November 2016: Effects determination (archaeological effects unknown) PA

proposed

February 2017: Draft PA to SHPO and CPs for comment; ACHP copied and

notified viz. 36 CFR 800.6(a)(1)

April 11, 2017: PA executed

April 2017: Final SEIS issued

June 2017: ROD issued

Total Section 106 Time: 21 Months

HRCS Timeline

Virginia Department of Transportation

• Multi-state (District of Columbia and Maryland)

• Multi-agency (FHWA, FRA, National Park Service)

• Complex: The Boring Company (Elon Musk)

• Two parallel hyperloop tunnels under public ROW, 35.3 miles

• “Autonomous electric scates”, 8-16 passengers, 125-150 mph

• DC-Baltimore: 15 minutes (ultimate DC-NYC in 29 minutes)

• Privately funded, construction in 12-20 months

• Federal action: Approval of ROW use

• NEPA: EA

• Section 106: Project-Level PA

Example: Loop Tunnel Project (Maryland/FHWA)

Virginia Department of Transportation

Loop Tunnel Project Location

Virginia Department of Transportation

• Authority: 36 CFR 800.14(b); consultation initiated March 2018

• Content: Section 106 Activities as Post-106 Commitments• Consultation principals

• Professional qualifications

• Roles of agency participants

• Tribal consultation

• Participation of consulting parties and the public

• Phased identification of historic properties

• Assessment and resolution of adverse effects (MOAs as commitment)

• Post-review discoveries, human remains, disputes, etc.

• PA to be executed Summer 2018 (4-5 months)

Loop Tunnel Project Draft PA Content

Virginia Department of Transportation

• Advantages

• Saves time: Section 106 completed faster for larger, complex

projects; 106 component of NEPA completed faster.

• Saves money: Archaeological survey expenses reduced (Virginia).

• Commitments to avoid adverse effects defined for use in

construction technical requirements.

• Disadvantages

• Final effects on historic properties might not be adverse.

• Overkill for most simple or single-alternative projects.

Project Level PAs Summary

Virginia Department of Transportation