Re:      Nansemond Indian Nation Comments and Request for Government-to-Government Consultation on VDOT’s Draft Application for Assumption of FHWA Responsibilities Under 23 U.S.C. § 327 (Program Assignment)

Dear Mr. Swanson:

On behalf of the Nansemond Indian Nation (“Nation”), I write regarding the Virginia Department of Transportation’s (“VDOT”) draft application to assume the Federal Highway Administration’s (“FHWA”) environmental review responsibilities under the Surface Transportation Project Delivery Program, 23 U.S.C. § 327 (“Program Assignment”). The Nation respectfully but urgently requests that the Commonwealth pause this process. Radical proposed changes at the federal level would throw this proposal into disarray and create serious risks for the protection of historic properties and Tribal interests on Virginia’s transportation projects. We further request a government-to-government meeting with the Commonwealth to discuss the Program Assignment and how VDOT can respond to this situation.

1. The ACHP’s pending rulemaking would eliminate all VDOT projects from compliance with the National Historic Preservation Act under Program Assignment.

The Advisory Council on Historic Preservation (“ACHP”) voted to approve new proposed regulations implementing Section 106 of the National Historic Preservation Act (“Section 106”) on July 24, 2026, the same date the Program Assignment application was released for public comment. These proposed regulations would redefine what types of federal activities require Section 106 review to exclude “State or local governmental actions, including where the state or local government is exercising delegated federal authority to act or to issue a license to a third party.” The Program Assignment is exactly this kind of delegation of federal authority. Section 327 repeatedly states that "the Secretary may assign, and the State may assume" certain federal responsibilities, indicating that the authority originates with the federal government and the state agency is the recipient (or delegee) of those responsibilities. 23 U.S.C. §§ 327(a)(2)(A)-(a)(2)(B)(ii). VDOT’s application makes clear on page 47 that “VDOT is requesting to assume responsibility for compliance with Section 106 of the National Historic Preservation Act.” If the ACHP’s proposed rule is finalized as currently drafted, VDOT’s exercise of Program Assignment authority would no longer qualify as a federal undertaking, and Section 106 would no longer apply to any of VDOT’s transportation projects.

2. No Virginia state law fills this gap.

If federal law no longer requires VDOT and its applicants to survey for archaeological, architectural, or traditional cultural historic properties, VDOT would not be independently obligated or authorized to do so. No current Virginia state law authorizes VDOT, or requires applicants, to comply with historic preservation review procedures equivalent to Section 106 for road construction. Nor does the Commonwealth’s Tribal consultation statute (passed as HB 1157) currently apply to VDOT. Program Assignment, layered onto the ACHP’s proposed rule, would therefore create a genuine and unprecedented regulatory vacuum likely to cause significant public outcry and management concerns.

3. The Commonwealth should pause this application.

Given the significance of the ACHP’s pending rulemaking to the very authority VDOT is requesting, the Nation urges the Commonwealth to pause its Program Assignment application until the ACHP rulemaking is resolved and the resulting federal legal landscape is clear. This Program Assignment application was developed without an understanding of the current unprecedented federal proposal; VDOT’s application includes references to Section 106 on pages 5, 12, 13, 14, 16, 20, 28, 38, 40, 47, 53, and 54. Nowhere does the application indicate an awareness of the implications of the new proposed Section 106 regulations. Finalizing Program Assignment while this critical question remains unresolved is premature and would endanger established historic preservation and Tribal consultation processes on Virginia’s transportation projects.

4. If Virginia proceeds, it should first enact state law protections.

Should the Commonwealth nonetheless move forward with Program Assignment, the Nation urges the Secretary of Transportation to do one of the following:

1. Remove the application’s request to assume responsibility for compliance with Section 106; or
2. Enact state legislation a) establishing historic preservation review requirements for VDOT equivalent to Section 106 and b) applying the Commonwealth’s Tribal consultation requirements to VDOT and to road construction projects.

Without these protections, Program Assignment would tie the Commonwealth’s own hands, leave VDOT without express authority to conduct the reviews it currently performs, and would invite exactly the kind of public controversy and reputational harm that consistent, predictable historic preservation review is designed to avoid.

5. The Nation also requests that VDOT review its current delegations and take action should the ACHP regulations progress through rulemaking and go into effect.

The draft application illustrates that there are additional areas of delegation that VDOT should examine for needed state legislation fixes should the ACHP regulations be enacted. For example, on page 7 the application discusses a Memorandum of Understanding between VDOT, FHWA, the U.S. Army Corps of Engineers, Norfolk District (“USACE”), the Tennessee Valley Authority, and the Virginia Department of Historic Resources (“DHR”) that delegates the federal agencies’ responsibilities under Section 106 of the National Historic Preservation Act to VDOT when VDOT is the project sponsor and/or completing the Section 106 process for the given project on behalf of a locality. On page 12, the application references the Section 106 Programmatic Agreement through which some responsibilities have been delegated to VDOT from FHWA. To avoid regulatory and legal uncertainty, VDOT must comprehensively examine all activities delegated from FHWA that have a Section 106 component, and enact a fix under state law.

6. This issue implicates specific projects and consultations currently ongoing that affect historic properties of significance to the Nation.

The Nation is currently engaged in consultation with VDOT and FHWA on several active highway projects in its ancestral territory. On at least one of these, VDOT and FHWA have recently acknowledged that the project would have an adverse effect on a traditional cultural property of the Nation. Projects like this demonstrate precisely why consistent, legally mandated historic preservation and Tribal consultation review must remain in place for VDOT’s transportation program, now and going forward.

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For these reasons, the Nansemond Indian Nation respectfully requests a government-to-government meeting with the Commonwealth at the earliest opportunity to discuss this critical issue. We appreciate the Commonwealth’s continued partnership with the Nation and welcome the opportunity to work together toward a resolution that protects Virginia’s shared historic and cultural heritage.

Respectfully submitted,

Lydia Dexter

Counsel to the Nansemond Indian Nation

lydia@culturalheritagepartners.com