What is a Programmatic Agreement?

 

 

What is a Programmatic Agreement?

How are PAs used?

Why would I want to do this?

If it’s really that good, can it be legal?

OK, I’m sold; what do I do next?

What is a Programmatic Agreement?

A programmatic agreement, or PA, is a document that spells out the terms of a formal, legally binding agreement between a state Department of Transportation (DOT) and other state and/or federal agencies. A PA establishes a process for consultation, review, and compliance with one or more federal laws, most often with those federal laws concerning historic preservation.

There are two basic kinds of programmatic agreements:

  • a PA that describes the actions that will be taken by the parties in order to meet their environmental compliance responsibilities for a specific transportation project, called here a project–specific PA
  • a PA that establishes a process through which the parties will meet their compliance responsibilities for an agency program, a category of projects, or a particular type of resource, called here a procedural PA

In the context of Section 106 of the National Historic Preservation Act, a PA differs from a Memorandum of Agreement (MOA) in that MOAs are used to resolve known and definable adverse effects on historic properties that result from a federal undertaking. PAs are used when the effects of an undertaking are not fully known. PAs are also a tool for implementing approaches that do not follow the normal Section 106 process. This is done to streamline and enhance historic preservation and project delivery efforts.

Procedural and Project-specific Programmatic Agreements

  • Procedural PAs establish a custom-designed compliance process for particular agency programs, common kinds of undertakings, common kinds of resources, and/or frequently encountered effects.
  • Procedural PAs are useful because they can establish categorical exclusions, standard treatments, and programmatic rather than case-by-case consultation.
  • Procedural PAs allow an agency to fit the compliance process to the agency mission, existing environmental procedures, and the kinds of cultural resources that the agency encounters most often.
  • Project-specific PAs establish a custom-designed compliance process for a single undertaking.
  • Project-specific PAs are useful for large, complex, or controversial undertakings; for undertakings involving many parties; for phased undertakings; and for undertakings whose effects cannot be determined at the early stages of planning.
  • Project-specific PAs allow the parties to establish timeframes, expedited procedures for review and dispute resolution, cost-effective procedures for discoveries, and a process tailored to the exact nature and requirements of the particular undertaking.

From Section 106: Principles and Practice. SRI Foundation, 2002

Programmatic agreements for natural resources are usually procedural as opposed to project-specific. These PAs often involve the delegation of environmental review functions from the FHWA to a state DOT, or from a federal or state natural resource agency to a state DOT. These delegation PAs can address, for example, Categorical Exclusion reviews and wetland permitting.

Compliance with Section 7 of the Endangered Species Act can be accomplished through the use of programmatic consultations, resulting in the development of programmatic biological assessments, and programmatic biological opinions prepared by the U.S. Fish and Wildlife Service. These are not formal agreement documents per se, in the sense that this term is used in Section 106 compliance; rather, they are documents that guide agency decision-making. The FHWA, state DOT and U.S. Fish and Wildlife Service use these programmatic assessments and biological opinions as guidance documents for future projects. When one of these projects is initiated, the agencies use these programmatic consultations to expedite and simplify Section 7 compliance, as opposed to completing a separate, formal Section 7 consultation.

How are PAs used?

The process established in a PA may govern consultation, review, and compliance for

  • a single transportation project
  • a whole category of transportation projects, or
  • all projects affecting a particular kind of resource

PAs are also used as a mechanism for delegating environmental compliance responsibilities from the Federal Highway Administration (FHWA) and sometimes the Advisory Council on Historic Preservation (ACHP) to state DOTs. The FHWA retains ultimate authority over and responsibility for legal compliance, but the state DOTs are given broad decision-making authority. State Historic Preservation Officers (SHPO), along with FHWA, can delegate some or all of their Section 106 review authority to a state DOT. This delegation may involve only minor projects that have no effect on historic properties, or it may involve all DOT undertakings regardless of the effect on resources.

Why would I want to do this?

PAs avoid redundancy and reinventing the wheel. They are a tool for better management of resources; looking at a population as opposed to one resource.

Mary Ivey, New York State

PAs result in streamlining and reductions in cost, time, and project review. Flexibility is increased.

Tim Hill, Ohio DOT

[Texas DOT's tribal consultation] PA allows consultation only in certain situations [previously agreed to by all parties], so consultation is really focused and more fruitful. Tribes who have signed the PA love it, as they now focus on substantive issues and sites.

Nancy Kenmotsu, Texas DOT

[Washintgon State DOT's PA involving state water resource permits] leads to consistencies in permit conditions. In the past, permit requirements were inconsistent amont the state agencies' field staff, especially in terms of mitigation. We now have unified statewide conditions for these permits, and fewer surprises during permit applications.

Gregor Myhr, Washington State DOT

[Colorado DOTs Section 7] PAs address mitigation up front, reducing the Section 7 process to a minimum. [Prior to the development of these PAs] we did not have project predictability, especially in terms of mitigation sites. We have this predictability now.

Roland Woslt, Colorado DOT

These experiences, and those of other state DOTs, demonstrate that using programmatic agreements results in:

  • quicker project turnaround;
  • elimination of individual federal and state agency review of projects;
  • predictability on large or complex projects, especially those where the full range of impacts are not known, e.g., a design/build;
  • streamlined review of routine transportation projects; and
  • freeing agencies to address higher priority environmental issues and projects.

Programmatic agreements clearly offer many advantages for DOTs. You can

  • tailor the compliance process to the way YOUR agency operates
  • establish timeframes that work for your projects
  • get up-front agreement about projects that may become contentious
  • move decision-making earlier in the planning process
  • adopt creative solutions

Best of all:

If done right, a programmatic agreement can help you to focus on preserving and conserving important environmental and heritage resources instead of pushing paper!

If it’s really that good, can it be legal?

It can, indeed. The ACHP's regulation implementing Section 106 of the National Historic Preservation Act (36 CFR part 800) provides for a number of alternative mechanisms for compliance with the law, including programmatic agreements. The section of the regulation that discusses PAs (§800.14(b)) encourages use of a PA for large, complex projects or programs where:

  • effects on historic properties are similar and repetitive
  • the effects cannot be fully determined prior to approval of the project
  • nonfederal parties (which would include DOTs) are delegated major decision-making responsibilities
  • effects result from routine maintenance
  • circumstances warrant deviation from the normal Section 106 process

This section of 36 CFR part 800 goes on to describe the process through which PAs for Section 106 compliance are developed and approved.

Although Section 106 PAs are the ones most commonly developed by DOTs, and for that reason will be the major focus of this tool kit, other laws and regulations can be implemented through PAs as well.

The U.S. Fish and Wildlife Service and the U.S. Department of Transportation have, for example, developed guidance for programmatic consultation to streamline Endangered Species Act compliance on transportation projects. Some state DOTs have developed PAs that streamline and enhance compliance with Section 7 of this Act. Several DOTs have also entered into agreements with FHWA to take on National Environmental Policy Act (NEPA) compliance responsibilities associated with certain types of Categorical Exclusions. One DOT, Washington State, has developed a PA that integrates aquatic resource permit requirements into both national and state environmental policy acts.

OK, I’m sold; what do I do next?

Using the "Next Section" arrow below or the links at the top of the page, read about the principles of developing a PA, the steps in creating a PA, and actually writing PAs.