MAXIMIZING THE VALUE OF PROJECT-LEVEL PROGRAMMATIC AGREEMENTS IN SECTION 106 CONSULTATION 2018 Joint AASHTO Committee Meeting, Spokane, Washington Antony Opperman, Cultural Resources Program Manager July 19, 2018
Authorities 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
Consistency with Statewide Federal PA; When Used 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.
Example: Hampton Roads Crossing Study (HRCS) 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
HRCS Location
HRCS: Emancipation Oak
HRCS Timeline 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
Example: Loop Tunnel Project (Maryland/FHWA) 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
Loop Tunnel Project Location
Loop Tunnel Project Draft PA Content 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)
Project Level PAs Summary 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.