Improving the Efficiency and Consistency of Section 106 Compliance for State DOTs: Strategies for Project-Level Programmatic Agreements (2021) / Chapter Skim
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Pages 23-43
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23 After compiling the responses to the questionnaire, the project team separated the issues noted by respondents into five main areas to guide the discussion regarding development, execution, and implementation of project-level PAs. The areas are shown in Figure 13.
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24 PA REVIEW OBSERVATIONS The majority of the PAs analyzed for this study included both architectural and archaeological properties, but some referenced only architectural properties, while others only focused on archaeological properties. Of the 85 project-level PAs (executed between 1998 and 2020)
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25 routine activities. This is usually effective for Tier 1 PAs, which include lists of properties or activities that are exempt from further Section 106 review and can be used for Tier 2 project activities that do not need Section 106 consultation when those projects are funded.
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26 This type of vague language could cause multiple unwanted actions, including alteration or demolition of contributing structures within a historic district, disagreement over actions that cause adverse effects to a historic property, and uncertainty as to which party is responsible for fulfilling a stipulation. If the signatories and/or consulting parties do not discuss how they perceive key terms, misunderstandings will result.
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27 which makes possible an efficient contemporary use while preserving those portions and features of the property which are significant to its historic, architectural, and cultural values."3 The SOI Standards for Rehabilitation do not support the removal of historic materials or alteration of the features that make a property significant. • Develop an appendix to the PA that defines responsible parties, roles, contact information, and commitments.
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28 • Spend time up front discussing with the signatories and consulting parties the specific actions that should occur to historic properties and provide specific direction on the work to be performed. • Reference the ACHP guidance on agreement documents for additional information that is necessary for the development of PAs (https://www.achp.gov/initiatives/guidance-agreementdocuments)
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29 Improving PA Stipulation Language POORLY WRITTEN STIPULATION LANGUAGE The resource will be rehabilitated to avoid further deterioration.
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30 attempt to balance the goals of signatories and consulting parties with an interest in the project. Consultation should also engage and encourage a wide variety of potential consulting parties to participate in the project.
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31 OVERCOMING THE CHALLENGES Many of the effective approaches for working with Section 106 consulting parties apply to all phases of Section 106 consultation and involve keeping an open mind, establishing a transparent communication plan and schedule, defining roles and responsibilities for all parties involved, and being flexible to respond to project issues that will change during the course of the consultation. Additional approaches that DOTs might consider include: • Establish open lines of communication and mechanisms for sharing information with consulting parties throughout the process.
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32 • Break PA development and review into manageable sections (whereas clauses, administrative provisions, mitigation stipulations, appendices) instead of focusing on the entire document at once.
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33 • Develop and foster a positive working relationship between the DOT and Tribe to set up a process to communicate and discuss tribal issues and concerns before requesting tribal consultation on individual projects. • Restrict information that is found during a survey to permitted personnel and keep information related to historic properties of interest to the Tribes confidential.
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34 stipulations. Of the 38 PAs that did not include known adverse effects, 42 percent (16)
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35 agreement. Oversight of contractors and enforcement of the terms of the PA are important considerations for DOTs.
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36 Additional effective approaches for developing mitigation stipulations include: • Ask consulting parties about their vision of meaningful mitigation. • Discuss mitigation on a case-by-case basis that is commensurate with the magnitude of the effect on historic properties.
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37 • Design review protocols for reviewing, considering, and developing mitigation for remaining design elements once additional information on the effects to historic properties is known. Effective approaches for developing language consistent with project contract documents includes: • Cultural resource staff should develop the draft PA language with contract management staff and engineers and confirm that the same language is being used in the contract documents, specifications, and plans.
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38 o Plans and procedures for dealing with design changes affecting identified historic properties that must be followed by the contractor. o Time designations and length of review periods to review changes in design.
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39 Figure 15. The duration of the majority of PAs analyzed was 10 years.
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40 Projects that do not have obligated construction funding or are slated to take many years are particularly challenging to complete within an established timeframe. Similarly, when funding for construction projects is delayed, implementing the stipulations in PAs can be delayed.
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41 may be an excessive period of time to fulfill the terms of the PA and can lead to inefficiencies. Agencies should consider how long the undertaking may take to be implemented and develop a duration period based on the project timeline.
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42 Improving Reporting/Tracking Stipulation Language POORLY WRITTEN STIPULATION LANGUAGE Progress reports will be submitted regularly.
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43 Common reasons for amendments: • Addition of new consulting parties • Vague project stipulations that required additional consultation to define and develop • The original PA did not include monitoring and reporting stipulations • The original PA did not include professional qualification standards • Updates to the APE • Project modifications or extended design and construction schedule • Expiration of the original PA, updates to of the duration clause Appendices/Attachments: Appendices and attachments to PAs provide additional details on mitigation stipulations and can help reduce the number of amendments required to the PA. When treatment plans are included as an appendix or attachment instead of a stipulation in the PA, the elements of the plans can be modified based on project changes without requiring an amendment to the PA.
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