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Programmatic Agreement for Minor Transportation Projects
1999 Annual Report DRAFT
Prepared by: Bureau of Environmental Quality Pennsylvania Department of Transportation May, 2000
For the: Federal Highway Administration, Pennsylvania Division Pennsylvania State Historic Preservation Officer Advisory Council on Historic Preservation |
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Table of Contents
A. Stipulation C
Tables Table 1. Stipulation C Exemptions Appendices Appendix A. Executed Programmatic Agreement - Not
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On December 17, 1996, the Pennsylvania Department of Transportation (PennDOT) through the Federal Highway Administration (FHWA), the Pennsylvania State Historic Preservation Officer (SHPO), and the Advisory Council on Historic Preservation (ACHP) executed the Programmatic Agreement for Minor Transportation Projects (Agreement). The purpose of the Agreement is to streamline consultation under Section 106 of the National Historic Preservation Act (NHPA) and to delegate certain decision making responsibilities to PennDOT. Under the terms of the Agreement, PennDOT is required to prepare an annual report on projects reviewed under the Agreement for submission to the FHWA, SHPO and ACHP. This document summarizes activities for calendar year 1999. During 1999, 283 minor projects were exempted from further review under Stipulation C of the Agreement. PennDOT Qualified Professionals reviewed an additional 131 Federal-Aid projects under Stipulation D for either No Effect or No Adverse Effect (65 more 100% state funded projects were similarly reviewed). The SHPO raised 7 objections to Stipulation D findings. Other activities carried out under the Agreement included annual training and FHWA process reviews. Twelve new PennDOT District Designees were trained and authorized to make exemptions under Stipulation C, and six new Qualified Professionals were trained in the use of Stipulation D. FHWA conducted process reviews of three Districts to ensure compliance with Stipulation C.
On June 17, 1999, revised regulations 36 CFR 800 implementing Section 106 of the NHPA became effective. Guidance issued by the ACHP entitled Making the Transition to the Council’s Revised Regulations: Questions and Answers states that Programmatic Agreements executed prior to June 17, 1999 are still valid. Therefore, projects reviewed by PennDOT after this date continued to follow the terms and conditions specified in the Programmatic Agreement for Minor Transportation Projects. The results from the third year of operation under the Agreement continue to support its utility for both streamlining the Section 106 process for minor projects and improving decision making by having Qualified Professionals view projects in the field. The Agreement has allowed PennDOT to achieve these results without compromising historic resources.
The FHWA has developed, in consultation with the Advisory Council on Historic Preservation, the SHPO, and PennDOT a Programmatic Agreement for Minor Transportation Projects (Appendix A). The purpose of the Agreement is to streamline the Section 106 process for certain types of minor transportation projects and to delegate greater responsibility to FHWA and PennDOT by reducing coordination with the the SHPO and ACHP. A. Applicability This Agreement applies to Federal-Aid projects that are classified as Categorical Exclusions (Class II) under the National Environmental Policy Act (See 23 CFR 771). Projects which are classified as an Environmental Impact Statement (Class I) or an Environmental Assessment (Class III) may not be reviewed under the Agreement. FHWA has also chosen not to include Categorical Exclusions that originally were scoped as an Environmental Assessment, but were later downscoped. Projects which will have an Adverse Effect on historic resources or have public controversy on historic preservation issues can not be reviewed under the Agreement. In addition, projects affecting a National Historic Landmark or National Historic Park will not be reviewed under the Agreement. The Agreement does not cover State-funded projects nor projects that are covered under Section 106 through a USCOE 404 Permit. It should be noted that under an informal agreement with the Pennsylvania Historical and Museum Commission, 100% State-funded projects that meet the same conditions as those for Federal-Aid projects can utilize the same process as outlined in the Agreement. Although FHWA is not responsible for the decisions made by PennDOT on State-funded projects, the data from these projects are included in this report as a measure of the performance of the Agreement. The Agreement establishes two general levels of review. Stipulation C projects are the least likely to have effects on historic resources and can be evaluated in the PennDOT Districts by staff who have had basic Cultural Resource training. Stipulation D projects have greater potential to effect historic resources and must be evaluated by Cultural Resource Professionals who meet the qualification standards published in 36 CFR 61. Under Stipulation D the Qualified Professionals may review projects within PennDOT
B. Purpose of the Report Under Stipulation H.3 of the Agreement, PennDOT is required to prepare an annual report for the calendar year. The report is to be submitted to FHWA on or before April 15th of the following year, and FHWA will ensure the report is made available for public review and comment. Based on the annual report and the comments received, the Agreement may be amended, utilizing Stipulation L.1 or L.2. C. Organization of the Report The report presents a summary of the projects reviewed under Stipulations C and D of the Agreement during 1999. Section II includes tabulations of Stipulation C exemptions and Stipulation D findings. A list of the projects reviewed is presented in Appendices B and C. Section III discusses objections made by the SHPO to specific project findings and how the objections were resolved. PennDOT’s training efforts relative to the Agreement are described in Section IV. Section V reports on FHWA process reviews under Stipulation H.2 of the Agreement. Section VI presents a discussion of questions and comments made during the annual training session and the FHWA process reviews, and makes recommendations for improvements to the Agreement.
Project reviews under the Agreement are made under one of three categories: Stipulation C determinations that a project is exempt from further review; Stipulation D.2 findings that a project would have either no historic resources or no effect on historic resources; or, Stipulation D.3 findings that a project would have no adverse effect on historic resources. A. Stipulation C Stipulation C determinations include those covered under Stipulation C.1 and C.2, the difference being the nature and complexity of the project. District Designees are authorized to make exemptions under Stipulation C.1 and C.2, but are also mandated to exercise good judgement. Projects that could technically be covered under Stipulation C.1 or C.2, but that potentially could affect cultural resources were referred to a qualified professional, who would consider the project under Stipulation D. A total of 283 Stipulation C exemptions were made by District Designees during 1999. A list of these projects is found in Appendix B. Table 1 provides a quarterly tabulation of the exemptions made by each District. These numbers include both Federal-Aid and 100% state funded projects. In their quarterly reporting, District Designees made no distinction in funding source. Since the Agreement technically covers only Federal-Aid projects, categorizing projects according to funding type may be something to consider in future reporting. Table 1. Stipulation C Exemptions
The variation among Engineering Districts reflects, in part, the size of each District’s program, the number of state funded projects included in the total, the number of maintenance projects included in the total, and the Districts’ use of other forms of consultation under Section 106 and the Pennsylvania State History Code. Use of the Agreement is voluntary and some Districts have chosen to rely more on previously established forms of consultation (e.g. Preliminary Cultural Resource Review Form). B. Stipulation D Stipulation D findings are made by PennDOT cultural resource professionals who meet the Federal qualification standards under 36 CFR 61. Findings can either be D.2 - No Historic Properties Present or Affected, or D.3 - No Adverse Effect. At a minimum, a finding can be made based on information obtained from background research and a fieldview. Additional field studies can be recommended that could include Phase I and Phase II Archaeologcial surveys, Historic Resource Identification and Evaluation surveys, and Criteria of Effect evaluations. As long as the studies did not result in a finding of adverse effect, the project could remain within the Agreement. During 1999, 131 Stipulation D findings were made for Federal-Aid projects (see Table 2). Of this total, 118 were findings of No Historic Properties Present or Affected (D.2) and 13 were findings of No Adverse Effect (D.3). The SHPO objected to seven of these findings, five under Stipulation D.2 and two under D.3 (See Section III). An additional 65 Stipulation D findings were made for state funded projects that are not directly covered under the agreement. Fifty-nine of these were Stipulation D.2 findings and 6 were Stipulation D.3 findings. PennDOT received no objections on any of the submissions for state funded projects. A list of projects reviewed under Stipulation D is found in Appendix C. Table 2. Stipulation D Findings
During calendar year 1999 seven (7) objections were made by the SHPO on the 131 Stipulation D.2 (No Resource/No Effect) and D.3 (No Adverse Effect) findings provided by PennDOT for Federal-Aid projects. No objections were received on 100% state-funded projects. Table 3 provides a summary of the objections; a more detailed discussion can be found in Appendix D. For each objection, a meeting or fieldview was held with the SHPO. In four of the cases the objection was resolved between PennDOT and the SHPO. In two cases the objection was elevated to FHWA. For one of the projects, two separate objections were made by the SHPO. Before the initial objection was resolved, PennDOT submitted a new finding because of a design change. After the second objection the disagreement was elevated to FHWA. Table 3. Stipulation D Objections
Under Stipulation B.4 of the Agreement, PennDOT and the SHPO are to provide annual training to District Designees who would be making exemptions under Stipulation C of the Agreement. In addition each Designee was to have completed National Highway Institute (NHI) Course 14211(or an equivalent), Historic and Archaeological Preservation. The purpose of this training is to sensitize Designees to situations where Stipulation C exemptions would or would not be appropriate. A joint PennDOT-SHPO three day training session was conducted in June of 1999. Two days of basic training was provided for new District Designees and a one day refresher course was held for existing Designees. A portion of the one-day refresher included a discussion of issues raised by both the Qualified Professionals and the Districts, as well as clarification on certain aspects of the Agreement (See Section VI). Throughout the three day session representatives from FHWA and PennDOT Central Office were also in attendance. Twelve new District Designees were trained during 1999. Appendix E contains a list of the new Designees. Training for new Qualified Professionals in the use of Stipulation D of the Agreement was accomplished through an internship type of arrangement. The trainee worked for about 2-3 months with a qualified professional knowledgeable in the use of the Agreement. Up until 1999 most of PennDOT’s Qualified Professonals worked out of the Central Office and consisted of a combination of Department and consultant staff. The Department began a hiring program to place Qualified Professionals in the District offices. Some of the new staff are Department hires and others have been obtained through a contract with Indiana University of Pennsylvania. The District Qualified Professionals spent 2-3 months in Central Office where training in the use of the Agreement was emphasized. Six new Qualified Professionals were trained in 1999 (see Appendix E). V. FHWA Process Reviews Under Stipulation H.2 of the Agreement FHWA is required to conduct process reviews of all Districts to ensure that the terms and conditions for Stipulation C exemptions are being met. Each District is to be reviewed on a triennial basis. During 1999 FHWA conducted process reviews in Districts 1-0, 6-0 and 8-0. Qualified professionals from the Bureau of Environmental Quality (BEQ) assisted FHWA with these reviews. With one exception, the Districts were found to be in compliance with Stipulation C. In District 6-0 it was found that construction of new park-and-ride lots was being treated as an exemption under Stipulation C. It had been agreed by PHMC, FHWA and the Advisory Council at the 1998 annual review of the Agreement that creation of a Park-and-Ride on an existing parking lot could qualify as an exemption under Stipulation C. Construction of new Park-and-Ride lots must be reviewed under Stipulation D. District 1-0 has developed a form for Stipulation C exemptions that is placed in the project files. FHWA/BEQ requested one modification: that documentation for projects that meet the conditions of Stipulation C should be cited as "exemptions to Section 106" rather than as "clearances". One of the projects included in the process review did qualify as an exemption, however the date on the Stipulation C form postdated the date on the Categorical Exclusion Evaluation (CEE) document making it appear that the CEE was approved prior to the decision that the project qualified as an exemption. District 8-0 has also developed a form to document Stipulation C activities. The review of District 8-0 indicated no problems with the application of Stipulation C exemptions. The three Districts commented favorably on the Programmatic Agreement noting that it greatly reduced the amount of time and coordination required to complete the Section 106 process. Some suggestions were made as to types of projects that might be added to the list of exemptions (See Section VI), and a request was made that more training on the Programmatic Agreement and on Section 106 in general be available to project managers.
Comments received from the Districts during the FHWA process reviews and at the annual training continue to support the Agreement as a useful tool for streamlining the Section 106 process. The Qualified Professionals reviewing projects under Stipulation D also express a similar satisfaction. The use of scoping fieldviews as part of decision making allows for more informed decisions and focuses studies where they are really needed. A. Discussion of Issues and Questions A number of questions, suggestions for the addition of certain types of projects to the Agreement, and requests for clarification were raised at the annual training session and the FHWA process reviews. The following issues were presented by BEQ.
Districts under Stipulations C.1 and C.2 are not being submitted in a timely manner by some Districts. Each District needs to prepare and submit a report to the SHPO and BEQ by the 20th day following the end of the reporting period. The due dates for quarterly reports are listed in the Agreement’s Operating Procedures. appropriateness of using the Agreement and a Preliminary Cultural Resource Review Form (PCRRF) on the same project, for example, using the Agreement to review archaeology and a PCRRF to review above ground structures. The Programmatic Agreement for Minor Transportation Projects is the Section 106 process for those projects that meet the conditions, and cannot be mixed with review under another process. The only exception was the grandfathering of existing projects when the Agreement was initially signed. It was agreed that if a PCRRF had already been submitted to the SHPO but PennDOT had not yet coordinated effects with the SHPO that these projects could be folded into the Agreement. For any projects begun after December 17, 1996, Districts must choose review under either the Programmatic Agreement or the PCRRF. Programmatic Agreement for Enhancement Projects as much as possible, although the Agreement for Minor Transportation Projects does cover rails-to-trails projects and construction of bicycle paths. The following issues were raised by the Districts. Agreement. BEQ response: the removal of a historic bridge would be considered an Adverse Effect even if it were moved to another location. Under the terms of the Agreement, any project that will have an adverse effect on historic properties can not be reviewed under the Agreement. under the Agreement. BEQ response: under the terms of the Agreement, if the activity is part of a larger undertaking it cannot be reviewed under the Agreement. A PCRRF should be used for these cases. the Agreement since a CEE must be prepared for each of these. BEQ response: since any CE level project can be reviewed under the Agreement provided the conditions are met, disposal of excess ROW could potentially qualify, but not as an exemption. This activity would have to be reviewed under Stipulation D. If historic structures or archaeological sites were present a protective covenant would likely be required as a condition of the property transfer. historic properties and historic property boundaries. BEQ response: Historic property boundaries must be established based on the guidelines in National Register Bulletins 16A and 21 and is independent of any ROW PennDOT may own. Often, the tax parcel is used which may have a boundary to the edge of road. In establishing boundaries, the criteria under which the property is eligible, the presence of intrusions, the presence of stone walls, trees and other features that may define a boundary are some factors that must be considered. activities. Separate activities within a project should be considered individually under the Agreement. BEQ response: Projects must be considered as a whole. If a project contains some activities that qualify under Stipulation C, and some that do not meet the conditions of C, the entire project needs to be reviewed under Stipulation D. meters of new ROW is required when the project is within 200 meters of a stream ranked 3rd order or greater. This is not wide enough to allow maintenance activities. BEQ response: The 3 meter threshold was established based on potential effects to archaeologcial sites, not on size of PennDOT equipment or type of activity. Both the SHPO and BEQ were comfortable that the area within 3 meters of the existing ROW would have a low probability for archaeological sites. Beyond 3 m there is a much greater potential for affecting sites. in front of a historic property qualify as an exemption under Stipulation C. BEQ response: The FHWA, ACHP and SHPO ageed at the 1998 review of the Agreement that addition of guiderail along the outside shoulder could qualify under Stipulation C.2.b. However, if a historic property or historic district was present then it must be reviewed by a Qualified Professional under Stipulation D.
B. Suggestions for Changes to the Agreement A request has been made to reconsider Stipulation C.1.d of the Agreement. This stipulation deals with drainage improvements including replacement of culverts. The Agreement’s Operating Procedures state that the exemption applies to culverts 8 ft in length or smaller and that any culverts larger than 8 ft must be reviewed under Stipulation D. The request is to consider the replacement of culverts greater than 8 ft under Stipulation C.2.a provided that all of the conditions of Stipulation C.2 are met including that the culvert is less than 50 years old. To date, the Agreement has not been formally amended to incorporate the recommended changes agreed to at the 1998 review meeting with ACHP, PHMC and FHWA (see Final Annual Report for 1997 for a list of these changes). The Agreement should be so amended. In June of 1999, revised regulations 36 CFR 800 implementing Section 106 of the NHPA became effective. According to guidance issued by the Advisory Council relative to the revised regulations, Programmatic Agreements executed before June 17, 1999 are still valid. Therefore, PennDOT has continued to operate under the terms and conditions specified in the Agreement in its review of projects. At this time, PennDOT is not proposing any changes to the Agreement in response to the new regulations. The projects that qualify under the Agreement are small in nature and PennDOT believes that existing policies and procedures on such issues as public involvement are adequate for these types of projects. Should the signatories to the Agreement wish to propose any changes, a meeting with the signatories is recommended.
Appendix A Executed Programmatic Agreement for Minor Transportation Projects
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Appendix B Stipulation C Project List
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Appendix C
SHPO Objections
Clearfield County SR 0879, Section A01 For the Clearfield County SR 0879 bridge replacement project PennDOT submitted a finding of No Adverse Effect after completion of a Phase I and II archaeological survey. PennDOT determined that a prehistoric and historic archaeological site found during the survey is eligible for the National Register, and a data recovery plan was submitted with the finding. The SHPO objected to the finding with the opinion that not enough fieldwork and analysis was done to make an eligibility determination. A meeting was held with the SHPO at which time the SHPO agreed that the site is eligible. The SHPO agreed with the data recovery plan for the historic component. PennDOT ageed to conduct additional deep testing, then submit a revised report and data recovery plan for the prehistoric component. Clearfield County SR 1001, Section A01 A finding of No Historic Properties Present or Affected was made by PennDOT for the Moose Creek bridge replacement project on SR 1001 in Clearfield County. The finding was made after completion of Phase I and II archaeological studies. A prehistoric site consisting of a very low density lithic scatter was found during the survey and was determined to be not eligible for the National Register. The SHPO objected to the finding stating that not enough archaeological testing had been done to make a determination of eligibility. The disagreement was elevated to FHWA who agreed with PennDOT’s conclusion that the site is not eligible. In addition, the site is buried under 1.2 meters of modern fill and would not be affected by the project. After further consideration, the SHPO decided to withdraw its recommendation for further archaeological testing, and the Department’s finding remained unchanged. Lycoming County SR 0044, Section 027
The SHPO objected to a finding of No Historic Properties Present or Affected for the Antes Creek bridge replacement project on SR 0044 in Lycoming County. A Phase I archaeological survey was completed for the project in an area with a high probability for prehistoric sites. No prehistoric sites were found but the report omitted an eligibility and effect determination for a millrace and dam within the APE. The report was modified accordingly and resubmitted with no change in the project finding. Chester County SR 0113, Section 04L For Chester County SR 0113 bridge replacement and widening project, a finding of No Historic Properties Present or Affected was made by PennDOT. The SHPO objected to the finding citing a 1980 historic structures survey along SR 113 that identified 13 historic properties. Only one of these properties was discussed in the submission. A fieldview was held with the SHPO. Although not specifically stated in the objection letter, the SHPO also wished to determine whether a rural historic district was present. It was determined at the fieldview that the previously identified historic properties were either no longer extant or outside of the APE. No rural historic district was present. The documentation was revised and the finding remained unchanged. Armstrong County SR 1038, Section 98S PennDOT received an objection to a finding of No Historic Properties Present or Affected for the Kittanning Courthouse Curve project on SR 1038 in Armstrong County. The SHPO felt that moving the road away from the Courthouse to straighten a bad curve had the potential to affect the historic setting of the National Register listed County Courthouse and Jail which commands a significant vista from the head of the main commercial district. Although the objection was received after the 15-day objection period, PennDOT agreed to meet with the SHPO to discuss their concerns. It was agreed that the would project proceed as designed provided that District 10-0 would place a covenant on land transferred to the Borough of Kittanning resulting from straightening the curve. The covenant directs the Borough to consult with the Pennsylvania Historical and Museum Commission on any activities that have the potential to alter the character of the land. Allegheny County North Shore Improvements The North Shore Improvement project in the city of Pittsburgh involved road improvements associated with the construction of a new stadium. In one location an existing road would be relocated and constructed on what is now a parking lot. Under the parking lot is 10-20 ft of modern fill. The SHPO objected to a PennDOT finding of No Historic Properties Present or Affected on the basis that there could be historic archaeological sites underneath the fill. The SHPO cited recent archaeological testing by the developer for the stadium project and for a nearby park that found intact historic sites beneath 10 ft of fill. Before the objection was resolved there was a project design change. PennDOT resubmitted the project to the SHPO with a finding of No Adverse Effect. The SHPO objected to the second submission on the same issue. PennDOT and the SHPO agreed to combine the two objections into one and the disagreement was elevated to FHWA. PennDOT and FHWA maintained that even if any archaeological sites were present under the fill they would be outside of the vertical APE. The maximum depth of construction would be 4 ft. PennDOT provided soil borings and additional information on disturbance. A stone sewer lying at a depth of 26 ft below surface underlies much of the route of the proposed new alignment. After reviewing the additional information, the SHPO withdrew its objection provided that the design was not changed.
List of District Designees and Qualified Professionals Trained in 1999
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