SYNTHESIS OF TRANSPORTATION EXCLUSIONS

TO SECTION 106 REVIEW

NCHRP 25-25/TASK 91April 2015

EXCLUDING ACTIONS FROM FURTHER SECTION 106 REVIEW

“IF THE UNDERTAKING IS A TYPE OF ACTIVITY THAT DOES NOT HAVE THE POTENTIAL TO CAUSE EFFECTS ON HISTORIC PROPERTIES, ASSUMING SUCH PROPERTIES ARE PRESENT, THE AGENCY OFFICIAL HAS NO FURTHER OBLIGATION UNDER SECTION 106… (36 CFR 800.3(A))”

EXCLUDING ACTIONS FROM FURTHER SECTION 106 REVIEW, CONTINUEDAGENCY ACTIONS CAN ALSO BE EXCLUDED FROM FURTHER REVIEW UNDER SECTION 106 BY:

• LISTING THE ACTIONS IN A PROGRAMMATIC AGREEMENT (PA), AND

• ESTABLISHING IN THE PA A PROCESS FOR EXCLUDING THESE ACTIONS FROM FURTHER REVIEW.

NRHP STUDY GOALS AND OBJECTIVES

• IDENTIFY THE TYPES OF ACTIONS STATE DOTS EXCLUDE FROM FURTHER SECTION 106 REVIEW.

• IDENTIFY THE PROCESSES AND PROCEDURES STATE DOTS USE TO EXCLUDE ACTIONS FROM FURTHER REVIEW.

• SHOWCASE HOW THE USE OF THESE EXCLUSIONS FROM FURTHER REVIEW STREAMLINES SECTION 106 COMPLIANCE AND PROJECT DELIVERY.

STUDY APPROACH

• COLLECT AND REVIEW STATE DOT PAS AND OTHER DOCUMENTS AND AUTHORITIES.

• DEVELOP AN EASY-TO-USE FORMAT PRESENTING INFORMATION ON EXCLUDED ACTIONS FOUND IN THE PAS AND OTHER DOCUMENTS AND AUTHORITIES.

• INTERVIEWING STATE DOTS ON THEIR APPLIED EXPERIENCES IN STREAMLINING SECTION 106 THROUGH THE USE OF THESE EXCLUSIONS FROM FURTHER REVIEW.

COLLECTION OF PAS AND OTHER DOCUMENTS

• THE PROJECT TEAM COLLECTED AND REVIEWED A TOTAL OF 40 STATE DOT PROGRAMMATIC AGREEMENTS AND OTHER DOCUMENTS.

• OF THESE 40 DOCUMENTS, 31 CONTAIN LISTS OF ACTIONS EXCLUDED FROM FURTHER SECTION 106 REVIEW.

EXAMPLES OF ACTIONS EXCLUDED FROM FURTHER REVIEW

General Maintenance and Repairs

Routine roadway and roadside maintenance and repair activities within existing interchanges, medians, and adjacent frontage roads in previously disturbed areas

Pavement Resurfacing, Restoration, and Replacement

Restore, rehabilitate, and/or resurface existing pavement including sealcoats, chipseal, milling, grooving, patching, etc., within the existing roadway prism

Pavement reconstruction, resurfacing, placement of sealcoats and chipseals, and/or crack filling that extends beyond the existing roadway prism

Lane Additions and Widening

Widening of existing roads where additions are limited to a specified lane width (e.g., less than one half lane) or distance from the existing right-of-way (e.g., less than 20 feet); includes minor changes in road alignment

Addition of lanes within the existing right-of-way where no cultural resources or NRHP eligible sites or districts are present

Shoulders

Adding new shoulders, paving or widening existing shoulders

Intersection/Interchange Improvements

Intersection improvements including construction of turn and auxiliary lanes, minor realignment of on/off ramps, channelization, signage, pavement markings, etc.

PROCESS FOR EXCLUDING ACTIONS FROM FURTHER

REVIEWMANY PAS REQUIRE SCREENING OF ACTIONS BY A QUALIFIED CRM SPECIALIST BEFORE THE ACTION CAN BE EXCLUDED FROM FURTHER REVIEW.

SOME PAS ALLOWED FOR A NON-CRM PROFESSIONAL TO MAKE THE DECISION AS TO WHETHER OR NOT AN ACTION CAN BE EXCLUDED FROM FURTHER REVIEW.

PROCESS FOR EXCLUDING ACTIONS FROM FURTHER REVIEW,

CONTINUED• SOME PAS EXCLUDED CLASSES

OF ACTIONS WITHOUT BEING SCREENED BY EITHER A CRM SPECIALIST OR NON-CRM SPECIALIST:

• POTHOLE FILLING

• PAVEMENT MILLING

• SURFACE TREATMENTS TO EXISTING ROADWAYS

• REPAIR IN KIND OF CURBS/SIDEWALKS/STREET FURNITURE

• BEAM END REPAIR OF BRIDGES THAT ARE LESS THAN 50 YEARS OLD

CONDITIONS FOR EXCLUDING ACTIONS FROM FURTHER REVIEW

• MUST OCCUR WITHIN AN EXISTING RIGHT OF WAY OR EASEMENT.

• IS NOT WITHIN OR ADJACENT TO A NATIONAL REGISTER LISTED OR ELIGIBLE PROPERTY.

• CANNOT INVOLVE IMPACTS TO HISTORIC PROPERTIES OR HISTORIC DISTRICTS.

• DOES NOT AFFECT A BRIDGE THAT IS LISTED IN OR ELIGIBLE FOR LISTING IN THE NATIONAL REGISTER.

• THE ACTION HAS NO KNOWN PUBLIC CONTROVERSY BASED ON HISTORIC PRESERVATION ISSUES.

• ANY ADDITIONAL RIGHT OF WAY PROPOSED IS LIMITED IN ITS ENTIRETY TO AREAS THAT CAN BE DOCUMENTED AS HAVING BEEN PREVIOUSLY DISTURBED AND/OR SURVEYED FOR CULTURAL RESOURCES, AND CONTAIN NO NATIONAL REGISTER LISTED OR ELIGIBLE PROPERTIES.

PERCENT OF PAS WITH SCREENED ACTIONS, BY CLASS OF ACTION

ROADWAYS

MIS

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BRIDGES

SIGNAGE,

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ON

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ITCHES

, DRAIN

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S

LANDSC

APING

RAILROADS

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ON CONTR

OL

ROADWAY

MONIT

ORING &

SURVEI

LLANCE

UTILIT

IES

0

20

40

60

80

100

120

PERCENT OF SCREENED VS. UNSCREENED

ROADWAYS

MIS

CELLA

NEOUS

SIGNAGE,

LIGHTI

NG, SIG

NALIZATI

ON

BRIDGES

CULVER

TS, D

ITCHES

, DRAIN

AGE SY

STEM

S

RAILROADS

LANDSC

APING

UTILIT

IES

EROSI

ON CONTR

OL

ROADWAY

MONIT

ORING &

SURVEI

LLANCE

0

20

40

60

80

100

120

UnscreenedScreened

APPLIED EXPERIENCES IN STREAMLINING SECTION 106

COMPLIANCE

• DOES YOUR USE OF EXCLUDED ACTIONS STREAMLINE SECTION 106 COMPLIANCE AND THE PROJECT DELIVERY PROCESS?

• WHY DOES YOUR AGENCY REQUIRE THE SCREENING OF CERTAIN ACTIONS BEFORE THEY ARE EXCLUDED FROM FURTHER SECTION 106 REVIEW?

•  WHY DOES YOUR AGENCY NOT REQUIRE THE SCREENING OF CERTAIN ACTIONS?

• WHAT IS YOUR PROCESS FOR ADDING TO OR CHANGING YOUR LIST OF EXCLUDED ACTIONS?

STATES INTERVIEWED/SURVEYED

USE OF EXCLUSIONS STREAMLINES COMPLIANCE AND PROJECT

DELIVERY“…IT ALLOWS US TO QUICKLY REDUCE THE AMOUNT OF PROJECTS THAT ARE INNOCUOUS TO HISTORIC RESOURCES, AND FOCUS OUR LIMITED PERSONNEL AND TIME ON PROJECTS THAT WILL HAVE EFFECTS ON HISTORIC RESOURCES. WHAT’S MORE, WE CAN PERMIT PROJECTS THAT HAVE A SHORT FUSE, AND RELATIVELY SIMPLE ACTIONS (I.E. PAVING, STRIPING) WITHOUT HASSLING THE SHPO, EXTENSIVE AND EXPENSIVE TIME OF OUR STAFF, AND IN OUR MINDS, MAKES US FEEL LIKE THE SPIRIT OF SECTION 106 IS BEING UPHELD.” 

SCREENING OF ACTIONS BY CRM SPECIALIST

• ENSURES A PROJECT CONFORMS TO THE DESCRIPTION OF A LISTED EXCLUDED ACTION, AND THAT ALL OF THE CONDITIONS ASSOCIATED WITH AN EXCLUDED ACTION ARE MET.

• SCREENING CERTAIN ACTIONS ENSURES CONSISTENCE COMPLIANCE WITH A PA AND GIVES THE SHPO ADDED CONFIDENCE THAT THE PA IS BEING USED APPROPRIATELY.

SCREENING OF ACTIONS BY NON-CRM SPECIALIST

TO MAKE SURE THAT THE DECISIONS MADE BY NON-CRM STAFF ARE APPROPRIATE AND CORRECT, SOME STATES:

• IMPLEMENT A TRAINING PROGRAM FOR THESE NON-CRM STAFF,

• HAVE PERIODIC REVIEWS OF THE DECISIONS MADE BY THESE INDIVIDUALS, OR

• ESTABLISH A PROCESS WHEREBY NON-CRM STAFF CAN CONSULT WITH THE DOT’S CRM STAFF PRIOR TO MAKING A DECISION TO EXCLUDE AN ACTION FROM FURTHER REVIEW.

SOME FINAL OBSERVATIONS

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• HAVING A PA THAT IDENTIFIES ACTIONS EXCLUDED FROM FURTHER SECTION 106 REVIEW STREAMLINES BOTH SECTION 106 COMPLIANCE AND PROJECT DELIVERY

• SINCE PAS ARE NEGOTIATED AGREEMENTS, EACH STATE PA IS SOMEWHAT UNIQUE IN TERMS OF WHAT IS EXCLUDED FROM FURTHER REVIEW AND HOW DECISIONS ARE MADE ON WHAT IS EXCLUDED.

SOME FINAL OBSERVATIONS, CONTINUED

• RECENT STATE PAS BUILD ON THE STRUCTURE AND CONTENT OF PREVIOUS PAS.

• THE STATE PAS EXAMINED IN THIS STUDY, ALONG WITH THE STUDY RESULTS, CAN SERVE AS A FOUNDATION FOR STATES INTERESTED IN DEVELOPING A NEW PA, OR IN REVISING, UPDATING, OR EXPANDING AN EXISTING PA.

NCHRP STUDY PANEL• ANTONY OPPERMAN, CHAIR, VIRGINIA DEPARTMENT OF

TRANSPORTATION

• ANNE BRUDER, MARYLAND STATE HIGHWAY ADMINISTRATION

• CRAIG CASPER, PIKES PEAK AREA COUNCIL OF GOVERNMENTS

• PAUL GRAHAM, PAUL GRAHAM CONSULTING LLC

• ROBERT HADLOW, OREGON DEPARTMENT OF TRANSPORTATION

• LISA HART, TEXAS DEPARTMENT OF TRANSPORTATION

• CAROL LEGARD, ADVISORY COUNCIL ON HISTORIC PRESERVATION

• ANMARIE MEDIN, CALIFORNIA DEPARTMENT OF TRANSPORTATION

• JEANINE RUSSELL-PINKHAM, VERMONT AGENCY OF TRANSPORTATION

• MARYANN NABER, FEDERAL HIGHWAY ADMINISTRATION

• CRAWFORD JENCKS, NCHRP STAFF OFFICER

STUDY PROJECT TEAM

• TERRY KLEIN, SRI FOUNDATION

• DAVID CUSHMAN, SRI FOUNDATION

• MEG SCANTLEBURY, ICF INTERNATIONAL

• MONTE KIM, ICF INTERNATIONAL