DHR is supportive of the Draft Application for the Virginia Department of Transportation (VDOT) to Participate in the Surface Transportation Project Delivery Program per 23 U.S.C. § 327, under which VDOT would assume the Highway Administration (FHWA) responsibilities for compliance with the National Environmental Policy Act (NEPA) and related laws, including Section 106 of the National Historic Preservation Act (Section 106). We believe this will result in further efficiency in the review process and solutions specific to Virginia.  

DHR appreciates VDOT’s long-standing commitment to consulting in the review of projects for their potential effects to historic resources, and for coordination with DHR about this proposed Program Assignment. Under a Section 106 Programmatic Agreement with DHR, the Advisory Council on Historic Preservation, US Army Corps of Engineers, Tennessee Valley Authority, and FHWA, VDOT currently reviews and consults on projects for National Register eligibility and project effects on historic resources on behalf of the three federal agencies. For projects involving adverse effects, FHWA is currently involved in consultation with DHR and other consulting parties to resolve adverse effects. Under Program Assignment, VDOT is requesting to assume responsibility for compliance with Section 106 of the National Historic Preservation Act (NHPA). 

It is important to note, however, vague language included in the Advisory Council on Historic Preservation’s proposed revisions to the regulations governing the Section 106 process could exclude from review those undertakings in which a state government is exercising delegated federal authority.  Should these or similar regulatory revisions be put into practice, state DOTs operating under delegated responsibility through FHWA Program Assignment may be exempt from Section 106 compliance, leaving historic properties vulnerable to reduced consideration and unmitigated impact as part of transportation projects. If such changes are made to the Section 106 regulations, DHR would encourage VDOT to continue to follow the well-established and successful consultation process for consideration of effects on historic resources in a manner consistent with the agreements and protocols already in place.   

In the Draft Application VDOT acknowledges that the Programmatic Agreement (PA) governing coordination under Section 106 of the NHPA will need to be amended to reflect its change in roles and responsibilities. We look forward to working with VDOT on amendment of the PA and ensuring ongoing consultation and consideration of the effects on historic resources.