FINAL APRIL 2020 PROGRAMMATIC AGREEMENT .PDF
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
FINAL APRIL 2020
PROGRAMMATIC AGREEMENT
PURSUANT TO SECTION 106 OF THE
NATIONAL HISTORIC PRESERVATION ACT
REGARDING
IMPLEMENTATION OF FEDERAL-AID TRANSPORTATION
PROJECTS IN THE STATE OF ARIZONA
Preamble
Stipulations
I.
Purpose and Applicability
II.
Legal Authorities, Standards, Guidelines, and Definitions
III.
Responsibilities of FHWA and ADOT
IV.
Professional Qualification Standards, Permitting Requirements, and Training
V.
Consultation with Indian Tribes
VI.
Consultation with Federal, State, and Local Government Agencies
VII.
Participation of Other Consulting Parties and the Public
VIII.
Section 106 Process
IX.
Changes in Scope of Project
X.
Preconstruction Geotechnical Testing
XI.
Protocol for Installing or Replacing Fencing and Signage
XII.
Protocol for Recreational Trails Program Undertakings
XIII.
Local Public Agency Projects
XIV.
Post-Review Discoveries
XV.
Treatment of Human Remains
XVI.
Emergency Situations
XVII.
Documentation and Reporting
XVIII.
Confidentiality
XIX.
Dispute Resolution
XX.
Amendments
XXI.
Withdrawal
XXII.
Termination
XXIII.
Duration
XXIV.
Counterparts
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
Attachments
1
Bureau of Reclamation Programmatic Agreements
2
Acronyms, Abbreviations and Definitions
3
Screened Undertakings Exempted from Further Review
4
Defining the Area of Potential Effects
5
No Adverse Effect with Standard Conditions
6
Standard Measures for Resolving Adverse Effects
7
Protocol for Installing or Replacing Fencing and Signage
8
Protocol for Recreational Trails Program Undertakings
9
“Memorandum of Understanding Between Federal Highway
Administration, Arizona Division and the Arizona Department of
Transportation State Assumption of Responsibility for Categorical
Exclusions (23 USC 326 CE Assignment MOU)”
10
“Memorandum of Understanding Between Federal Highway
Administration, Arizona Division, and the Arizona Department of
Transportation Concerning the State of Arizona’s Participation in the
Surface Transportation Project Delivery Program Pursuant to 23 USC
327”
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
PROGRAMMATIC AGREEMENT
PURSUANT TO SECTION 106 OF THE
NATIONAL HISTORIC PRESERVATION
ACT
REGARDING
IMPLEMENTATION OF FEDERAL-AID TRANSPORTATION
PROJECTS IN THE STATE OF ARIZONA
This Programmatic Agreement (Agreement) is among the Federal Highway Administration
(FHWA), the Arizona Department of Transportation (ADOT), the Arizona State Historic
Preservation Officer (SHPO), the Bureau of Indian Affairs, Western Regional Office (BIA
WRO), the Bureau of Land Management (BLM), the Bureau of Reclamation (Reclamation),
the United States Army Corps of Engineers (USACE), the United States Forest Service,
Southwest Regional Office (USFS), and the Advisory Council on Historic Preservation
(ACHP).
WHEREAS, FHWA provides funding assistance to ADOT through the Federal-aid
Highway Program (Program), which is subject to Section 106 of the National Historic
Preservation Act of 1966 (NHPA), as amended [54 United States Code (U.S.C.) § 306108]
and its implementing regulations at 36 Code of Federal Regulations (C.F.R.) Part 800
(Section 106); and
WHEREAS, Title 23 United States Code Section 326 (23 U.S.C. 326) and 23 United
States Code Section 327 (23 U.S.C. 327) allow the United States Department of Transportation
Secretary, acting through FHWA, to assign responsibilities for compliance with the National
Environmental Policy Act of 1969 (NEPA) and other federal environmental laws to a State
Department of Transportation through a memorandum of understanding (MOU); and
WHEREAS, FHWA and ADOT have entered into two MOUs, (included in this Agreement as
Attachments 9 and 10 respectively), as provided for in 23 U.S.C. 326 and 23 U.S.C. 327
respectively, through which FHWA assigned and ADOT assumed FHWA’s responsibilities for
compliance with NEPA and Section 106; and
WHEREAS, ADOT has determined that Program-funded transportation projects are
undertakings as defined at 36 C.F.R. 800.16(y), that may have an effect upon properties included
in or eligible for inclusion in the National Register of Historic Places (National Register); and
WHEREAS, under the MOUs, ADOT is deemed to be the lead Federal agency for the purposes
of compliance with 36 C.F.R. 800, except for projects not assigned under the 327 MOU (see
attachment10); and
WHEREAS, FHWA shall be the lead Federal agency for the purposes of compliance with 36
C.F.R. Part 800 for Program-funded transportation projects not assigned under the 327 MOU
(see attachment 10); and
WHEREAS, FHWA may choose to use Stipulation VIII of the Programmatic Agreement (PA)
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
for projects not assigned under the 327 MOU (see attachment 11); and
WHEREAS, the Division Administrator is the FHWA agency official for the Program-funded
transportation projects not assigned under the 327 MOU; and
WHEREAS, FHWA provides funding assistance to ADOT through the Program, and FHWA
is a signatory to this Agreement; and
WHEREAS, ADOT will administer Program-funded undertakings throughout the state of
Arizona and ADOT has assumed FHWA’s responsibilities for compliance with NEPA and
Section 106 for all Program-funded transportation projects in Arizona pursuant to the two
MOUs (see Attachments 9 and 10); therefore, ADOT is a signatory to this Agreement; and
WHEREAS, the Environmental Administrator is the ADOT agency official responsible for the
Program-funded transportation projects assigned under the 326 and 327 MOUs; and
WHEREAS, in accordance with 36 C.F.R. § 800.6(a)(1), ADOT has invited the ACHP to
participate in Section 106 consultation and development of this PA, and the ACHP, by letter
dated October 31, 2018, has chosen to participate in the consultation pursuant to 36 C.F.R. §
800.6(a)(1)(iii);
WHEREAS, FHWA, ADOT, SHPO, BIA WRO, BLM, Reclamation, USACE, USFS,
Arizona State Land Department (ASLD), Arizona State Parks & Trails (ASP&T), Gila River
Indian Community, the Hualapai Tribe, and the ACHP executed an agreement on December
16, 2015 (2015 agreement) for Program-funded undertakings throughout the state of Arizona;
and the 2015 agreement was executed prior to FHWA and ADOT entering into the MOU as
provided for in 23 U.S.C. 326 and 23 U.S.C. 327; and
WHEREAS, ACHP, SHPO, ASLD, BLM, USFS, BIA WRO, and USACE have signed a
letter indicating that they agree to continue to use the 2015 agreement for projects where
ADOT has assumed responsibility for the implementation of Section 106 until this new
Section 106 PA is executed and implemented; and
WHEREAS, this Agreement supersedes the 2015 agreement; and
WHEREAS, this Agreement will be considered executed upon the signatures of the FHWA,
ADOT, SHPO and ACHP; and
WHEREAS, ADOT intends to utilize this Agreement to meet the Section 106 requirements for
Program-funded Local Public Agency (LPA) transportation projects; and
WHEREAS, Program-funded undertaking may cross lands under the jurisdiction of a Certified
Local Government (CLG); therefore, ADOT has consulted with all CLGs in the state of
Arizona and invited their comments on the draft Agreement, and took any comments received
into account; and
WHEREAS, ADOT has invited the CLGs to be concurring parties to this Agreement; and
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
WHEREAS, SHPO is authorized to enter into this Agreement pursuant to Sections 101 and 106
of NHPA, as amended, and pursuant to 36 C.F.R. § 800.2(c)(1)(i) and 36 C.F.R. § 800.6(b)(1)(i),
in order to fulfill its role of advising and assisting federal agencies in carrying out their
responsibilities; therefore SHPO is a signatory to this Agreement; and
WHEREAS, ADOT has an Interagency Service Agreement with SHPO in which SHPO has
agreed to respond to an ADOT request for Section 106 consultation within 15 calendar days, and
as such, consultations between ADOT and SHPO will be conducted within this time frame
unless otherwise negotiated; and
WHEREAS, ASP&T, with assistance from ADOT, administers the Program-funded
Recreational Trails Program (RTP); therefore, ADOT has invited ASP&T to be a concurring
party to this Agreement; and
WHEREAS, Program-funded undertakings may cross lands managed by USFS; therefore,
ADOT has invited USFS to consult in the development of this Agreement. ADOT has been
designated lead federal agency for Section 106 compliance on Program-funded undertakings
that cross lands managed by USFS to satisfy their collective Section 106 responsibilities for
those undertakings unless, on a case-by-case basis, both agencies agree in writing that for a
specific undertaking, USFS will take the lead; and
WHEREAS, Program-funded undertakings may cross lands managed by BLM; therefore,
ADOT has invited BLM to consult in the development of this Agreement. ADOT has been
designated lead federal agency for Section 106 compliance on Program-funded undertakings
that cross lands managed by BLM to satisfy their collective Section 106 responsibilities for
those undertakings; unless, on a case by case basis, both agencies agree in writing that for a
specific undertaking, BLM will take the lead; and
WHEREAS, Program-funded undertakings may cross lands and structures owned or managed
by Reclamation, including National Register eligible canals, ditches, and dams, which may
result in effects to historic properties subject to Section 106; therefore, ADOT has invited
Reclamation to consult in the development of this Agreement. ADOT has been designated lead
federal agency for Section 106 compliance on Program-funded undertakings that cross lands or
properties managed by Reclamation to satisfy their collective Section 106 responsibilities for
those undertakings; unless, on a case-by-case basis, both agencies agree in writing that for a
specific undertaking, Reclamation will take the lead; and
WHEREAS, Program-funded undertakings may cross National Register eligible dams, canals,
and ditches associated with the historic Salt River Project (SRP System) that are owned by
Reclamation and managed by Salt River Project Agricultural Improvement and Power
District (SRP), and are included in two Section 106 Programmatic Agreements (PAs) among
Reclamation, SRP, and SHPO regarding the operations and maintenance of these facilities that
are part of the SRP System. Copies of the PAs are presented in Attachment 1 (Bureau of
Reclamation Programmatic Agreements). The PAs are entitled:
“Programmatic Agreement Among the Bureau of Reclamation, Phoenix Area Office,
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
Salt River Project, and the Arizona State Historic Preservation Office Regarding
Historic Preservation Treatment for the Salt River Project System of Historic Dams and
Associated Dam Facilities Operated and Maintained by the Salt River Project for the
Bureau of Reclamation” (Reclamation PA 2009)
“Programmatic Agreement Among the Bureau of Reclamation, Phoenix Office, the
Arizona State Historic Preservation Officer, and the Salt River Project Regarding
the Historic Preservation Treatment for the Salt River Project System of Historic
Main Canals, Laterals, and Associated Features Operated and Maintained by the
Salt River Project for the Bureau of Reclamation” (Reclamation PA 2013); and
WHEREAS, the SRP operates and maintains the SRP System pursuant to the contract between
the United States and the Salt River Valley Water Users Association (SRVWUA), dated
September 6, 1917, such obligations of said contract having been assumed by SRP pursuant to a
contract dated March 22, 1937 between SRP and SRVWUA, as amended, therefore, ADOT, has
invited SRP to be a concurring party to this Agreement; and
WHEREAS, ADOT Program-funded undertakings may cross waterways requiring a permit
from the USACE under Section 10 of the Rivers and Harbors Act of 1899, as amended (33
U.S.C. § 403), or Section 404 of the Clean Water Act of 1972 as amended (33 U.S.C. §
1344), the issuance of which requires Section 106 review for the undertaking; therefore,
ADOT has invited USACE to consult in the development of this Agreement. ADOT has been
designated lead federal agency for Section 106 compliance on Program-funded undertakings
that require a permit from the USACE to satisfy their collective Section 106 responsibilities
for those undertakings; unless, on a case by case basis, the USACE indicates in writing that it
will, for that specific undertaking, meet its Section 106 compliance requirements individually
by following 36 C.F.R. Part 800 and 33 C.F.R. 325, Appendix C, as applicable; and
WHEREAS, all federally recognized Indian Tribes consulted during the preparation of this
Agreement are collectively referred to herein as the “Tribes” or individually as “Tribe;” and
WHEREAS, Program-funded undertakings may cross lands held in trust by the United States
for the Tribes, requiring approvals of rights-of-way (ROWs) by the BIA WRO, which would
require Section 106 compliance; therefore, ADOT has invited BIA WRO to consult in the
development of this Agreement. ADOT has been designated lead federal agency for Section
106 compliance on Program-funded undertakings that cross Indian trust lands by BIA WRO to
satisfy their collective Section 106 responsibilities for those undertakings; unless, on a case by
case basis, both agencies agree in writing that for a specific undertaking, BIA WRO will
comply individually with 36 CFR Part 800 for that undertaking; and
WHEREAS, FHWA recognizes that it has a unique legal relationship with Tribes established
in the Constitution of the United States, treaties, statutes, and court decisions, and therefore,
consultation with a Tribe must recognize the government-to-government relationship between
the federal government and the Tribes; and
WHEREAS, in accordance with the MOUs, FHWA retains responsibility for government-to-
government consultation with Tribes when FHWA’s participation has been so requested by the
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
Tribes; and
WHEREAS, ADOT has consulted with the Tribes listed below regarding Program-funded
undertakings that may affect historic properties of concern to them within Tribal lands as
defined in 36 C.F.R. 800.16(x) and has invited these Tribes to be Tribal Signatories to this
Agreement; and
Ak-Chin Indian Community
Cocopah Tribe of Arizona
Fort McDowell Yavapai Nation
Fort Mojave Indian Tribe (Arizona, California and Nevada)
Havasupai Tribe of the Havasupai Reservation
Kaibab Band of Paiute Indians of the Kaibab Indian Reservation
Quechan Tribe of the Fort Yuma Indian Reservation
San Juan Southern Paiute Tribe of Arizona
Tonto Apache Tribe of Arizona
Yavapai-Apache Nation of the Camp Verde Indian Reservation
Yavapai-Prescott Indian Tribe of the Yavapai Reservation
WHEREAS, ADOT has consulted with the Tribes listed below, regarding Program-funded
undertakings that may affect historic properties of concern to them within Tribal lands. These
Tribes are certified by the National Park Service (NPS) as Tribal Historic Preservation
Officers (THPOs), as provided for under Section 101(d)(2) of NHPA, and have assumed the
duties of SHPO for all undertakings on lands managed by their respective Tribes. ADOT has
invited these Tribes to be signatories to this Agreement; and:
Colorado River Indian Tribes
Gila River Indian Community
Hopi Tribe
Hualapai Tribe
Navajo Nation
Pascua Yaqui Tribe
San Carlos Apache Tribe
Salt River Pima-Maricopa Indian
Community
Tohono O’odham Nation
White Mountain Apache Tribe
Pueblo of Zuni
WHEREAS, ADOT recognizes that other Tribes may be granted THPO status during the
duration of this Agreement and as such will assume the responsibilities of SHPO for all
undertakings on lands managed by them; and
WHEREAS, ADOT has consulted with the Tribes listed below with ancestral ties to non-
Tribal lands within the state of Arizona regarding Program-funded undertakings that may
affect historic properties of concern to them and has invited these Tribes to be concurring
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parties to this Agreement; and:
Chemehuevi Indian Tribe
Fort Sill Apache Tribe
Mescalero Apache Tribe
Moapa Band of Paiute Indians
Paiute Indian Tribe of Las Vegas
Paiute Indian Tribe of Utah
Pueblo of Acoma
Ute Mountain Ute Tribe
WHEREAS, if other Tribes not mentioned above are identified as having ancestral ties to
Arizona, ADOT will consult with them and invite them to be concurring parties to this
Agreement; and
WHEREAS, this Agreement shall not apply to Tribal lands unless the Tribes are full
signatories; and
WHEREAS, any Tribe, that has Tribal land in the state of Arizona, may make a request to
ADOT to become a signatory to this Agreement at the time of execution or afterwards. The
process for adding signatories would require an amendment to the agreement (see Stipulation
XX.A). A Tribe that becomes a signatory to this Agreement is referred to as a “Signatory
Tribe,” as defined in Attachment 2 (Acronyms, Abbreviations and Definitions). Upon signing
as a signatory, the terms of this Agreement will apply to Program-funded undertakings on the
Signatory Tribe’s Tribal lands; and
WHEREAS, ASLD administers state trust land crossed by ADOT highway projects;
therefore, ADOT has invited ASLD to be a concurring party to this Agreement; and
WHEREAS, Arizona State Museum (ASM) has been invited to participate pursuant to 36
C.F.R. § 800.(c)(2)(iii) because it administers four statutes related to state lands in the Arizona
Antiquities Act (AAA), Arizona Revised Statutes (A.R.S.) § 41-841 et seq, and one state statute
related to private lands (A.R.S. § 41-865). Under these statutes, ASM’s responsibilities include
issuance of permits for archaeological investigations on state, county, and municipal lands, and
administration of discovery of human remains on state, county, municipal, and privately-owned
land; therefore, ADOT has invited ASM to be a concurring party to this Agreement; and
WHEREAS, ADOT shall seek and consider the views of the public in a manner that reflects the
nature and complexity of each undertaking and its potential effects on historic properties and the
likely interest of the public in the efforts on historic properties. ADOT shall use its procedures
for public involvement under the National Environmental Policy Act (NEPA) to solicit
information and concerns about historic properties from members of the public and will ensure
that an appropriate level of public involvement is provided, in accordance with 36 C.F.R. §
800.2(d)(3); and
WHEREAS, for the review of specific undertakings under this Agreement, ADOT may
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invite other agencies, organizations, and individuals to participate as consulting parties; and
WHEREAS, all signatories and invited signatories are collectively referred to herein as
the “Signatories” or individually as “Signatory;” and
WHEREAS, the Signatories have developed this Agreement pursuant to 36 C.F.R. §
800.14(b)(2) in order to establish a program alternative for taking into account the effects of the
Program on historic properties in Arizona and for affording ACHP a reasonable opportunity to
comment on undertakings covered by this Agreement; and
NOW, THEREFORE, the signatories agree that this Agreement shall be carried out in
accordance with the following stipulations in order to take into account the effects of the
Program on historic properties in Arizona and that these stipulations shall govern compliance
of the Program with Section 106.
STIPULATIONS
I. Purpose and Applicability
A. This Agreement shall apply to all federal undertakings administered under the Program
in Arizona and sets forth the process that will be met to ensure compliance under
Section 106. ADOT is deemed the lead Federal agency for Program-funded
undertakings assigned under the MOUs. FHWA shall be the lead Federal agency for
Program-funded undertakings not assigned under the MOUs and for those types of
projects described in Stipulation III.A and shall apply the Agreement’s stipulations
wherever applicable.
B. This Agreement establishes the basis for considering the effects of Program-funded
undertakings on historic properties, as defined in Attachment 2, and establishes
alternative procedures to implement Section 106 for the review of such undertakings
by the signatories and concurring parties, as specified.
C. Guidance documents issued by ACHP shall be used in the interpretation of
this Agreement, and in overall implementation of Section 106, to the extent
they are applicable and helpful.
D. For any matter regarding Section 106 compliance not addressed in this Agreement,
the provisions of 36 C.F.R. Part 800 shall apply.
II. Legal Authorities, Standards, Guidelines, and Definitions
A. Legal authorities, standards, and guidelines relevant to this PA and its purposes include,
but are not limited to:
1. State assumption of responsibility for categorical exclusions (23 U.S.C. 326)
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
2. Surface transportation project delivery program (23 U.S.C. 327)
3. National Historic Preservation Act (54 U.S.C. § 300101 et seq.).
4. Protection of Historic Properties, Advisory Council on Historic Preservation (36
C.F.R. Part 800) or its successor regulation.
5. Secretary of the Interior’s Standards for the Treatment of Historic Properties,
July 1997, U.S. Department of the Interior, National Park Service (36 C.F.R.
68) or its successor regulation.
6. Archaeology and Historic Preservation: Secretary of the Interior’s Standards and
Guidelines, September 1983, United States Department of the Interior, National
Park Service (48 Federal Register [F.R.] 44716 [1983], as updated) or its successor
regulation.
7. Secretary of the Interior's Professional Qualification Standards at 48 F.R.
44716 (1983), as updated.
8. National Register of Historic Places (36 C.F.R. Part 60) or its successor regulation.
9. Procedures for State, Tribal, and Local Government Historic Preservation
Programs (36 C.F.R. Part 61) or its successor regulation.
10. Secretary of the Interior’s Standards for Curation of Federally-owned and
Administered Archaeological Collections (36 C.F.R. Part 79) or its successor
regulation.
11. National Register Bulletin 15: How to Apply the National Register Criteria
for Evaluation (Revised 1997).
12. National Register Bulletin 38: Guidelines for Documenting and
Evaluating Traditional Cultural Properties (1990), or its successor
guidelines.
13. Native American Graves Protection and Repatriation Act of 1990 (25 U.S.C. §§
3001- 3013) (NAGPRA) and its implementing regulations at 43 C.F.R. Part 10, or
its successor regulation.
14. Archaeological Resources Protection Act of 1979 (16 U.S.C. § 470)
(ARPA) and its implementing regulations at 43 C.F.R. Part 7, or its
successor regulation.
15. Freedom of Information Act, Records and Testimony (43 C.F.R. Part 2).
16. Executive Order No. 13007: Indian Sacred Sites (1996).
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17. Executive Order No. 13175: Consultation and Coordination with Indian
Tribal Governments (2000).
18. Arizona Antiquities Act (A.R.S. §§ 41-841 through 41-844 and its implementing
rules, and A.R.S. § 41-865 and its implementing rules).
19. The Arizona State Museum Archaeological Site Recording Manual (December
1, 1993), or its successor guidelines.
20. State Historic Preservation Act of 1982 (A.R.S. §§ 41-861 through 41-864).
21. Standards for Inventory Documents Submitted for SHPO Review in Compliance
with Historic Preservation Laws (SHPO Survey Report Standards), January, 2015
or its successor guidelines.
22. Regulations on the confidentiality of information relating to location of
archaeological discoveries and places or objects included or eligible for inclusion
on the Arizona Register of Historic Places (A.R.S. § 39-125).
B. For the purposes of this Agreement, the definitions provided in Attachment 2 shall
apply.
III. Responsibilities of FHWA and ADOT
A. FHWA Responsibilities
1. FHWA shall retain responsibility for complying with all federal requirements
pertaining to government-to-government consultation with federally recognized
Tribes for all program-funded projects, and shall honor the request of any Tribe for
government-to-government consultation regarding an undertaking covered by this
Agreement.
2. FHWA shall retain responsibility for any undertaking that crosses or is adjacent to
international boundaries as defined in the MOUs.
3. FHWA shall retain responsibility for any undertaking that crosses state boundaries
as defined in the MOUs.
4. FHWA shall retain responsibility for any projects that were specifically excluded
from assignment under the 327 MOU (see Attachment 10).
B. ADOT Responsibilities
1. ADOT is legally responsible for ensuring that the Program in Arizona
complies with Section 106 for all undertakings with the potential to affect
historic properties, and shall carry out the following steps with respect to
undertakings covered by this Agreement:
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
a. Establish whether there is an undertaking with the potential to affect historic
properties.
b. Conduct inventories and identify historic properties, as needed.
c. Identify and solicit input from consulting parties.
d. Conduct Tribal consultation.
e. Conduct public involvement activities.
f. Establish the area of potential effects (APE).
g. Determine the National Register eligibility of properties within the APE.
h. Assess the effects of the undertaking.
i. Resolve any adverse effects to historic properties.
2. ADOT shall define each undertaking in sufficient detail so that Section 106 review
can be conducted. Section 106 review should begin at the earliest stages of scoping
or design.
3. ADOT will compile and distribute a report of Section 106 compliance
actions necessary for quarterly and annual reports as required under
Stipulations XVII.B and XVII.C.
4. ADOT will identify any party entitled to be consulted on an undertaking,
including federal and state agencies, and local governments, and invite these
parties to participate as consulting parties pursuant to 36 C.F.R. 800.2(c).
5. ADOT will consult with the Tribes on Program-funded undertakings, unless the
Tribes request government-to-government consultation directly with FHWA for any
particular undertaking, as further discussed in Stipulation V.
6. ADOT will make a reasonable and good faith effort to identify any Tribe that might
attach religious and cultural significance to historic properties in the APE,
whereupon ADOT will invite that Tribe to participate as a consulting party to the
undertaking.
7. ADOT shall curate archaeological materials produced under this Agreement at
the ASM or another facility meeting the standards of 36 C.F.R. Part 79, and shall
consult with Tribes and other consulting parties to an undertaking regarding the
appropriate repository for a given collection.
IV. Professional Qualification Standards, Permitting Requirements, and Training
A. Qualification Standards:
1. ADOT shall employ staff with professional training and experience in prehistoric or
historic archaeology, historic architecture, or architectural history who either meet
the Professional Qualifications Standards established by the Secretary of the Interior
(SOI), or who work under the supervision of a professional that meets the SOI
qualifications standards (48 F.R. 44716, Sept. 1983, as updated). ADOT staff who
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
possess professional training and experience, as described, are referred to in this
Agreement as Historic Preservation Team Member (ADOT HPT). All work
performed by ADOT under the terms of this Agreement shall be conducted by an
ADOT HPT. The ADOT HPT may seek advice or technical assistance from SHPO
at any time on any undertaking.
2. Consultant cultural resource professionals (CRPs) with subject matter expertise in
prehistoric or historic archaeology, architecture, or architectural history, may assist
ADOT staff whenever undertakings are reviewed that involve types of cultural
resources in their areas of expertise.
3. Section 106 documentation may be prepared by consultant CRPs who meet the
SOI’s Professional Qualifications Standards, or who work under the supervision of
a professional who meets the SOI’s Professional Qualifications Standards.
4. Consultant responsibilities do not include formally approving Section 106
documents on behalf of ADOT, making official agency determinations or findings,
signing consultation letters, or otherwise functioning as an agency official for the
purposes of Section 106.
5. All actions prescribed by this Agreement that include, but are not limited to, the
identification, evaluation, analysis, recording, treatment, monitoring, or disposition
of cultural resources, or that involve the reporting or documentation of such actions
in reports, memos, or other records, shall be carried out by CRPs or ADOT HPT
who meet, or work under the direct supervision of a person or persons who meets
the SOI’s Professional Qualifications Standards for Archaeology, Historic
Architecture, Architectural History, or History, as appropriate (48 F.R. 44716,
Sept. 1983, as updated).
B. Permitting Requirements
1. Archaeological investigations on lands owned or controlled by the State of
Arizona or by any agency, municipality, or political subdivision of the State of
Arizona, including any county or municipal corporation, will be conducted in
accordance with a permit issued by the Director of ASM pursuant to A.R.S. §
41-842 of the AAA.
2. Archaeological investigations on federal land will be conducted in accordance
with a permit issued by the federal land managing agency pursuant to the ARPA in
compliance with 43 C.F.R. Part 7, when applicable.
3. Cultural resources investigations on Tribal lands will be conducted in
accordance with permits or other approvals issued by the Tribe under Tribal
law or policy, when such law or policy exists.
C. Training
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
1. ADOT, with the assistance of SHPO as appropriate, will provide training for ADOT
personnel and ADOT HPT regarding implementation of this Agreement.
2. ADOT will prepare a guidance manual to accompany this Agreement, which will
include internal procedures, memo and letter templates, and other information
ADOT determines is necessary to ensure efficient compliance with the terms of this
Agreement. The manual will be used as part of the training.
3. ADOT, with the assistance of SHPO as appropriate, will provide training on
Section 106, Section 4(f) of the United States Department of Transportation
Act (Section 4[f]), and the NEPA, to ADOT HPT, and consultant CRPs, as
needed, subject to funding availability.
4. ADOT, in coordination with SHPO, will work with its consultants and LPA staff
and consultants working on LPA projects to identify areas where training can
improve performance under this Agreement and will work to make such training
available, subject to funding availability.
5. Whenever major changes to 36 C.F.R. Part 800 become effective, ADOT HPT
will participate in training on the new regulations, and update the guidance
manual, as needed, within six months of new regulations taking effect.
V. Consultation with Indian Tribes
A. FHWA shall conduct government-to-government consultation with the Tribes for
any particular Program-funded undertaking if requested by the Tribes.
Otherwise, ADOT shall carry out Tribal consultation as presented below.
B. ADOT will carry out routine Section 106 consultation with Tribes, and shall
consult with:
1. Signatory Tribes for Program-funded undertakings on and off their Tribal
lands in accordance with Stipulations VIII, IX, and X, as further described
below.
2. Tribes that are concurring parties to this Agreement for Program-funded
undertakings on or off their Tribal lands in accordance with Stipulations VIII, IX,
and X.
3. Tribes that are not signatories or concurring parties to this Agreement in
accordance with 36 CFR Part 800, or by means of a separate Tribe-specific PA
with ADOT that meets the requirements of 36 CFR Part 800.
C. ADOT will formally initiate routine Section 106 consultation with Tribes in writing.
Unless a Tribe requests otherwise, formal consultation letters may be transmitted
electronically.
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
D. Any Tribes that might attach religious and cultural significance to historic properties in
the APE shall be identified by ADOT. ADOT will invite the Tribes to be consulting
parties for a given undertaking.
E. Where the Tribe has a NPS certified THPO, ADOT shall consult with the THPO.
Where the Tribe does not have a THPO, ADOT shall consult with the Tribe and
SHPO.
F. For all Signatory Tribes, when a Program-funded undertaking is on land owned
by a Tribe as defined under 36 CFR § 800.16(x), ADOT will consult with the
Tribe prior to finalizing any decisions that relate to the following stipulations in
this Agreement:
Screened undertakings exempted from further review (Stipulation
VIII.C.1).
Findings of No Historic Properties Affected (Stipulation VIII.F.1.a).
Findings of No Adverse Effect with Standard Conditions (Stipulation
VIII.F.2.a.i).
Changes in Scope of Project (Stipulation IX).
These stipulations do not generally require individual consultation but are instead
addressed through batched consultation in a quarterly report (see Stipulation XVII.B).
The purpose of consulting with a Signatory Tribe for these undertakings when the
undertaking is on that Tribe’s land is to ensure the Signatory Tribe is informed and has
no objections prior to ADOT carrying out the stipulation. When acceptable to the
Signatory Tribe, this consultation may occur informally through emails and telephone
calls and documented to the project files. If the informal process is not acceptable to the
Signatory Tribe, ADOT will formally consult with the Tribe, and the Tribe will have 15
calendar days to respond. If there is no response within that time period, ADOT will
follow the consultation procedures in Stipulation VIII.A.1.
VI. Consultation with Federal, State, and Local Government Agencies
A. When a Program-funded undertaking is on land owned, managed, or regulated by a
federal, state, or local government agency, ADOT will consult with the appropriate
agency throughout the Section 106 process in accordance with Stipulations VIII, IX
and X.
B. In addition, ADOT will coordinate with the federal, state, or local government agency
on all decisions relating to the stipulations listed below, which are addressed through
batched consultation in a quarterly report (see Stipulation XVII.B). The purpose of this
coordination is to ensure the agency is informed and in agreement prior to ADOT
carrying out the stipulation. Communication may occur informally through emails and
telephone calls, and will be documented to the project file. The agency shall have 15
calendar days to respond.
Screened undertakings exempted from further review (Stipulation VIII.C.1).
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
Findings of No Historic Properties Affected (Stipulation VIII.F.1.a).
Findings of No Adverse Effect with Standard Conditions (Stipulation
VIII.F.2.a.i).
Changes in Scope of Project (Stipulation IX).
C. When Program-funded undertakings cross dams, canals, laterals, ditches or associated
facilities covered by the Reclamation PAs presented in Attachment 1, ADOT will
coordinate with Reclamation and SRP on a project-specific basis to determine whether
it is appropriate for ADOT to adopt stipulations of the applicable Reclamation PA in
order to avoid or resolve adverse effects to facilities covered by the Reclamation PA.
If ADOT adopts those stipulations of an applicable PA, implementation of those
stipulations will satisfy ADOT’s Section 106 responsibilities for the undertaking in
regard to those facilities. ADOT shall notify consulting parties to the undertaking of
this decision.
For all other SRP assets and facilities, including transmission lines, potentially impacted
by a Program-funded undertaking, SRP shall be considered an organization with a
demonstrated interest in the undertaking under 36 CFR 800.2(c).
VII. Participation of Other Consulting Parties and the Public
A. Consulting Parties:
1. Parties that are entitled to be consulted on an undertaking, as described in 36 CFR
§ 800.2(c), shall be invited to participate by ADOT. Any land-managing or
regulatory agency whose land or jurisdiction may be included in a Program-funded
undertaking shall be invited by ADOT to participate in the Section 106 process.
Other individuals and organizations with a demonstrated interest in the undertaking
may also participate as consulting parties.
2. ADOT shall invite any LPAs, including CLGs, that are applicants for federal
assistance or approvals, to be consulting parties to the undertaking under 36 CFR §
800.2(c).
3. ADOT shall consider all written requests of individuals and organizations to
participate as consulting parties to the undertaking. ADOT will respond to all
written requests within 15 calendar days. ADOT will determine which parties
should be consulting parties to the undertaking, and will consult with SHPO or
THPO, as applicable, prior to denying consulting party status to any party
requesting such status.
B. Public Involvement:
1. As part of the public participation process, ADOT will seek and consider the views
of the public in a manner that reflects the nature and complexity of the undertaking
and its potential effects on historic properties, the likely interest of the public in the
effects on historic properties, and confidentiality concerns of the Tribes and private
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
individuals, as provided for under 36 C.F.R. § 800.2(d)(3).
2. ADOT will ensure that issues relating to cultural resources, as defined in
Attachment 2, are incorporated into ADOT’s public participation process carried
out under NEPA, as far as is practicable.
3. ADOT may use the NEPA scoping process, including but not limited to hearings,
meetings, and letters, to inform the public about a proposed undertaking and
request comments, pursuant to 36 C.F.R. § 800.2(a)(4). When exercising this
option, ADOT will make it clear to the public that comments are being requested
pursuant to Section 106.
VIII. Section 106 Process
A. Consultation
1. All consultation among ADOT and SHPO and/or THPO, as applicable; federal and
state land managing or regulating agencies; Tribes; and other consulting parties to
an undertaking will be conducted within the review periods stipulated below. If by
the end of the review period, ADOT does not receive comments from one or more
of the consulting parties to the undertaking, ADOT will follow-up with the party to
verify that the party has no comment. If, after a reasonable and good faith effort to
reach an unresponsive consulting party, there has still been no response, ADOT
will notify the party of its intent to move forward within a specified timeframe, and,
if no response has been received within that timeframe, will proceed to the next
step prescribed by this Agreement.
Except for screened undertakings, the consultation timeframes when using the
stipulations within this Agreement, are 15 calendar days to respond. Standard
Section 106 consultation is 30 calendar days to respond unless the agency has
requested additional time.
2. If any agency or Tribe requires additional time for consultation, ADOT will
accommodate the request whenever possible provided that the request for an
extension is made within the original review period. The ADOT HPT will
document the request for additional consultation time and ADOT’s response to
the project file.
3. For a given undertaking, ADOT may, when warranted, expedite consultation
through addressing multiple steps in the Section 106 process, as presented in this
Stipulation, in accordance with 36 C.F.R. § 800.3(g). ADOT will ensure that SHPO
or THPO, as applicable, and any other consulting parties have an adequate
opportunity to express their views pursuant to 36 C.F.R. § 800.2.
B. Initiation of the Section 106 Process
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
ADOT will be responsible for establishing the undertaking and initiating the Section
106 review process. An ADOT HPT will determine if the undertaking has the potential
to cause effects to historic properties. Where the ADOT HPT determines there is no
potential to cause effects pursuant to 36 C.F.R. § 800.3(a)(1), ADOT will have no
further Section 106 obligation and ADOT shall document this finding to the project
file. Where the ADOT HPT determines the undertaking does have potential to affect
historic properties, the undertaking will be reviewed in accordance with Stipulations
VIII.C through VIII.G below.
C. Screened Undertakings Exempted from Further Review
1. The undertakings classified in Attachment 3 (Screened Undertakings Exempted
from Further Review) will require no further review under this Agreement when the
requirements of Attachment 3 have been satisfactorily met and it is determined by
an ADOT HPT that no historic properties will be affected by the undertaking.
ADOT shall document all undertakings exempted from further review in the
quarterly report, as required under Stipulation XVII.B.
2. All exempted undertakings shall be screened by an ADOT HPT in accordance
with the procedures described in Attachment 3. Any undertaking that is not listed
in Attachment 3, and does not meet the conditions for review as an exempted
undertaking, will be reviewed through the Section 106 process as described below
in Stipulation VIII.D through Stipulation VIII.G.
3. ADOT, in consultation with SHPO/THPO and the other signatories and
concurring parties to this Agreement, may propose additions to the list of
exempted undertakings in Attachment 3, as needed. ADOT will justify the
addition in writing to the other signatories and concurring parties to this
Agreement, explaining how the undertaking will not cause effects to historic
properties, provided all conditions are met. Where SHPO/THPO approves, and
none of the other signatories and concurring parties object, the proposed exempted
undertaking will be added to Attachment 3 without formal amendment to this
Agreement under Stipulation XX. ADOT will update Attachment 3 and provide
copies to SHPO/THPO and the other signatories and concurring parties to this
Agreement. Where SHPO/THPO does not approve, the proposed exempted
undertaking will not be added to Attachment 3. Objections from other signatories
or concurring parties will be addressed on a case-by-case basis. Any additions to
Attachment 3 will be reported on in the annual report prepared in accordance with
Stipulation XVII.C.
D. Identification of Historic Properties
1. An ADOT HPT shall determine and document the APE for undertakings covered
by this Agreement in accordance with Attachment 4 (Determining the Area of
Potential Effects). In establishing the APE, all direct, indirect, and cumulative
effects shall be considered. At any time, ADOT may communicate with SHPO or
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
other consulting parties to the undertaking on determining and documenting an
APE.
2. ADOT shall identify the consulting parties to the undertaking and invite them to
participate in the Section 106 review in accordance with 36 C.F.R. § 800.2(c) and
36 C.F.R. § 800.3(c) through (f). An ADOT HPT will prepare or oversee
preparation of invitation letters to the consulting parties.
3. ADOT shall identify historic properties that may be located within an
undertaking’s APE in accordance with 36 C.F.R. §§ 800.4(a)(2) through (4) and
36 C.F.R. § 800.4(b). An ADOT HPT will determine whether a new survey is
appropriate.
4. If no previous inventory of the APE is available, but the ADOT HPT has reason to
believe that survey of all or some of the area within the APE is unwarranted, the
ADOT HPT will notify SHPO or THPO, as applicable, and the federal, state, local
government, land managing or permitting agencies or Signatory Tribe with
jurisdiction, if any, to provide an explanation for ADOT’s position. Should one of
these parties object within 15 calendar days to the decision that new inventory is
not necessary, ADOT will follow Stipulation VIII.D.5 through VIII.G, as needed.
5. When a survey is warranted, ADOT will arrange for a survey to be conducted by a
professional meeting the applicable qualification standards in Stipulation IV.
6. If a new survey identifies cultural resources within the APE, ADOT will ensure that
a survey report meeting current SHPO and ASM reporting standards is prepared.
ADOT will submit the survey report, along with National Register eligibility
determinations, to the consulting parties for a 30 calendar day review in accordance
with Stipulation VIII.E.
7. If a new survey is conducted and no cultural resources are identified within the
APE, ADOT will ensure that a survey report meeting current SHPO and ASM
reporting standards is prepared documenting the negative findings. If the survey
was conducted on federal, state, or Tribal lands, ADOT will coordinate or consult
with the appropriate agency, Signatory Tribe, or THPO regarding the adequacy of
the report. Once the report is found adequate by ADOT and the land owner, ADOT
shall issue a finding of No Historic Properties Affected, in accordance with
Stipulation VIII.F.1. No further consultation will be required. These survey reports
will be included as documentation in the quarterly report required under
Stipulation XVII.B.
8. Identification of historic properties shall be consistent with the SOI’s Standards
and Guidelines for Archaeology and Historic Preservation (48 F.R. 44720-26). If
the Program-funded undertaking is on land owned or managed by a federal or state
land managing agency or Signatory Tribe, ADOT shall also follow applicable
guidelines or protocols for identifying historic properties issued by the agency or
Signatory Tribe.
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
9. ADOT shall make a reasonable and good faith effort to identify and consult with
any affected Tribe to assist in identifying properties to which the Tribe may attach
religious and cultural significance that may be within the APE, and shall identify
any such properties in accordance with 36 C.F.R. § 800.4(b).
E. Evaluation of National Register Eligibility
1. ADOT shall evaluate the historic significance of identified cultural resources in
accordance with 36 C.F.R. § 800.4(c)(1) following National Register Bulletins 15
and 38. An ADOT HPT will make the National Register evaluation. In making this
evaluation, ADOT will consult with the appropriate land managing or permitting
agency or Signatory Tribe when a Program-funded undertaking is on land under
their respective jurisdiction, and will provide the land managing agency or
Signatory Tribe with a recommendation on National Register eligibility for their
concurrence.
2. During the evaluation process, ADOT shall make a reasonable and good faith
effort (36 C.F.R. § 800.4(e)(1) to identify and consult with the Tribes on the
evaluation of any identified cultural resource to which they may attach religious
and cultural significance.
3. When previously evaluated cultural resources are identified within an undertaking’s
APE, an ADOT HPT shall review those previous evaluations to assess whether the
previous evaluations are still valid. Such review may require a field visit, and field
visits may be made by consultant CRPs on behalf of ADOT. If the previous
evaluations are not valid, the ADOT HPT will consult with the appropriate land
managing or permitting agency or Signatory Tribe when a Program-funded
undertaking is on land under their respective jurisdiction, and subsequently with all
other consulting parties on a revised determination of eligibility.
4. ADOT shall submit determinations of National Register eligibility and supporting
documentation to the consulting parties to the undertaking for review in accordance
with 36 C.F.R. § 800.4(c)(2). The consulting parties will have 15 calendar days to
submit their comments to ADOT.
5. If SHPO or THPO, as applicable, and the other consulting parties to the
undertaking agree regarding ADOT’s National Register eligibility determinations,
ADOT may proceed to the next step in this Agreement. If one or more of the
consulting parties to the undertaking do not agree, and the disagreement cannot be
resolved, ADOT, as the responsible federal agency, will request formal
determination from the Keeper of the National Register in accordance with 36
C.F.R. § 800.4(c)(2). The Keeper’s determination on National Register eligibility
will be final.
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
F. Assessment of Effects
ADOT will assess the effects of the undertaking on historic properties, taking into
consideration the direct, indirect and reasonably foreseeable effects of the undertaking
that may occur later in time, be farther removed in distance, or be cumulative. An
ADOT HPT shall make all findings of effect as follows.
1. Finding of No Historic Properties Affected
a. For all those undertakings not screened and exempted under Stipulation VIII.C
and Attachment 3, if ADOT determines that either there are no historic
properties within the APE, or historic properties are present in the project area
but will not be affected by the undertaking, ADOT shall issue a finding of No
Historic Properties Affected pursuant to 36 C.F.R. § 800.4(d)(1). At the time of
the finding, an ADOT HPT will document the finding for the quarterly report,
as required under Stipulation XVII.B.
b. If ADOT finds there are historic properties that may be affected by the
undertaking under 36 C.F.R. § 800.4(d)(2), ADOT shall make a finding of
effect in accordance with Stipulation VIII.F.2 or Stipulation VIII.F.3, as
applicable.
2. Finding of No Adverse Effect
For those undertakings where historic properties may be affected, ADOT shall
apply the Criteria of Adverse Effect in accordance with 36 CFR § 800.5(a). If the
effect of the undertaking will not be adverse, ADOT will issue a finding of No
Adverse Effect in accordance with 36 C.F.R. § 800.5(b) and an ADOT HPT will
document the finding. ADOT may make a finding of No Adverse Effect in one of
two ways, as presented below.
a. No Adverse Effect with Standard Conditions
ADOT may make a finding of No Adverse Effect with Standard Conditions
when the standard conditions presented in Attachment 5 (No Adverse Effect
with Standard Conditions) to this Agreement are met. Following any
consultation with Signatory Tribes or federal or state land managing agencies,
as set forth in Stipulations V and VI, and with SHPO as appropriate per
Attachment 5, the undertaking shall not be subject to further review under this
Agreement.
i.
ADOT shall document each undertaking in which a finding of No
Adverse Effect with Standard Conditions is made in the quarterly
report, as required under Stipulation XVII.B.
ii.
ADOT, in consultation with SHPO and the other signatories and concurring
parties to this Agreement, may propose the adoption of additional standard
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
conditions that have proven effective in avoiding adverse effects to historic
properties. ADOT shall provide documentation supporting the proven
effectiveness to SHPO or THPO, as applicable, and the other signatories
and concurring parties for review. Where ADOT and SHPO or THPO, as
applicable, approve, and no other parties object, the proposed standard
condition will be added to Attachment 5 without formal amendment to this
Agreement under Stipulation XX. ADOT will update Attachment 5 and
provide copies to SHPO or THPO and the other signatories and concurring
parties to this Agreement. Where SHPO or THPO, as applicable, does not
approve, the proposed standard condition will not be added to Attachment
5.
iii
A finding of No Adverse Effect with Standard Conditions may be made on
undertakings involving roads that are historic properties, provided that an
ADOT HPT with appropriate professional qualifications, as defined in
Stipulation IV, determines the undertaking will not adversely affect the
road’s character-defining features.
b. No Adverse Effect
When the standard conditions in Attachment 5 do not apply, ADOT will
propose a finding of No Adverse Effect and will consult with SHPO or THPO,
as applicable, and the other consulting parties to the undertaking pursuant to 36
C.F.R. § 800.5(c). ADOT shall request that any comments be submitted within
15 calendar days of receipt of consultation. If there are any disagreements, they
will be resolved under Stipulation XIX, dispute resolution.
3. Finding of Adverse Effect
If ADOT determines that the criteria of adverse effect in 36 C.F.R. § 800.5(a)(1)
are met, ADOT will issue a finding of Adverse Effect and consult further to
resolve the adverse effect in accordance with Stipulation VIII.G. ADOT will
coordinate with the appropriate land managing or permitting agency or Signatory
Tribe when a Program-funded undertaking is on land under their respective
jurisdiction prior to formal consultation with all the consulting parties to the
undertaking.
G. Resolution of Adverse Effects
1. Standard Measures for Resolving Adverse Effects
a. ADOT may propose to resolve adverse effects to certain types of historic
properties by following the process in Attachment 6 (Standard Measures for
Resolving Adverse Effects) as an alternative to preparing a Memorandum of
Agreement (MOA) or project-specific PA.
b. ADOT will propose the applicable standard measure for resolving adverse
effects, as provided in Attachment 6, to SHPO or THPO, as applicable, and
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
the consulting parties to the undertaking. ADOT will provide the SHPO or
THPO and the consulting parties to the undertaking with information on the
undertaking, each property and its significance, the adverse effect to the
property, and a justification for resolving adverse effects, as proposed, under
Attachment 6 to this Agreement. ADOT will request the review parties
provide their comments within 30 days.
c. ADOT will notify ACHP of the finding of Adverse Effect and invite their
participation in the resolution of adverse effects.
d. Where SHPO or THPO, as applicable, agree in writing that resolving adverse
effects under Attachment 6, as proposed, is adequate, and any party that is a
land manager or permitting agency with a role in authorizing the undertaking
concurs in writing, the Section 106 process is completed. ADOT will ensure
that either a Historic Properties Treatment Plan (HPTP) or a proposal for
Historic American Building Survey/Historic American Engineering Record
(HABS/HAER) Documentation for resolving the adverse effects is prepared in
accordance with Attachment 6. Where there is no agreement in writing among
SHPO or THPO, as applicable, or any party that is a land managing or
permitting agency with a role in authorizing the undertaking, ADOT will
initiate consultation to prepare an MOA or project-specific PA following
Stipulation VIII.G.2.
e. Any consulting party to the undertaking may object to ADOT regarding the
proposal to resolve the adverse effects of the undertaking through standard
measures. ADOT, in consultation with SHPO or THPO, as applicable, and the
land manager or permitting agency, if any, will consider the objection in
determining if resolving the adverse effect of the undertaking under Attachment
6 is warranted. Should ADOT determine that resolving the adverse effects of
the undertaking under Attachment 6 is not adequate, then ADOT will prepare a
MOA or project-specific PA, in accordance with Stipulation VIII.G.2.
f. ADOT shall provide draft copies of the HPTP Plan or proposal for the
HABS/HAER documentation to SHPO or THPO, as applicable, and the other
consulting parties to the undertaking for review and comment. The consulting
parties will have 30 calendar days to provide comments on the HPTP or
HABS/HAER proposal. If comments received require only minor editorial
corrections, such as typos, formatting, and punctuation, ADOT will complete
the HPTP or HABS/HAER proposal. If more substantive changes are required,
ADOT shall provide draft copies of the revised HPTP or HABS/HAER
proposal to all consulting parties to the undertaking for review and comment.
The consulting parties will have 20 calendar days to provide comments on any
revised drafts. ADOT, in consultation with the consulting parties to the
undertaking, may modify review periods depending on the nature and
complexity of the proposed treatment. ADOT will consider the comments of
any party that responds within the review period(s) in completing the HPTP or
HABS/HAER proposal. When the document is completed, ADOT will provide
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
copies of the completed HPTP or HABS/HAER proposal to all consulting
parties.
g. The results of all standard measures for resolving adverse effects will be
reported. ADOT will ensure that a preliminary report of findings is completed
at the end of field work and will submit the report to all consulting parties to
the undertaking for review and comment. The specific requirements for the
preliminary report of findings, as well as the review process and time frames
will be stipulated in the HPTP or HABS/HAER proposal. ADOT will not
authorize the start of construction until consultation on the preliminary report
of findings has been satisfactorily completed, except as described in Stipulation
VIII.G.1.h below.
h. ADOT may propose an in-field meeting to be held at the end of fieldwork
during which the results of the fieldwork will be presented to the consulting
parties. ADOT may authorize start of construction if the consulting parties
attending the in-field meeting agree that the HPTP was adequately implemented
and no additional field work is needed. SHPO or THPO, as applicable, and any
land managing or permitting agency or Tribe with jurisdiction must also
concur. ADOT will ensure that a summary of the in-field meeting and any
decisions made at the meeting are included in the preliminary report of the
findings required under VIII.G.1.f.
i. ADOT will ensure that a draft treatment report or HABS/HAER document is
prepared, and will submit the draft report to all consulting parties to the
undertaking for review and comment. The review process will follow the same
process as in Stipulation VIII.G.1.e above.
2. Memorandum of Agreement or Project-Specific Programmatic Agreement
a. When ADOT determines resolution of adverse effect under Attachment 6 is
not adequate, or is not agreed to by the consulting parties; ADOT will consult
with the consulting parties to the undertaking and prepare an MOA in
accordance with 36 CFR § 800.6, or a project-specific PA in accordance with
36 C.F.R. § 800.14(b). ADOT shall invite ACHP to participate in the
undertaking and the development of the agreement document, if not already
participating in the undertaking. The process for preparing and reviewing the
MOA or project-specific PA will be negotiated among the consulting parties to
the undertaking.
b. If an MOA or project-specific PA is prepared, once executed, a copy shall be
provided to each signatory and concurring party, and the MOA or PA will be
filed with the ACHP and the consulting parties, per 36 C.F.R. § 800.6, along
with the documentation specified in 36 C.F.R. § 800.11(f). This completes the
Section 106 process. The measures to resolve adverse effects shall then be
incorporated into the undertaking, and the undertaking may be implemented
once the treatment measures have been completed according to the approved
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
HPTP or HABS/HAER proposal.
IX. Changes in Scope of Project
A. Whenever the scope of a project is revised (e.g., design changes, utility relocation,
addition of geotechnical investigations, addition of new ROW), including during
construction, an ADOT HPT will determine whether or not the changes require
modifying the APE or revising the project effect finding and inform the ADOT project
manager and Environmental Planner if further review under Section 106 is required. In
making this determination, the ADOT HPT will follow the steps presented below.
1. If the scope changes do not require modifying the APE and the finding of effect
remains the same, then no further consultation will be required. The ADOT HPT
will document this finding to the project file and the quarterly report.
2. If the scope changes do require modifying the APE, the ADOT HPT will determine
whether or not a new survey is warranted, as follows.
a. When the new APE has not been previously surveyed to current standards, the
ADOT HPT will arrange for a survey to be conducted following the procedures
in Stipulation VIII.D.
b. When the new APE has been previously surveyed to current standards with
negative results, the ADOT HPT will document the finding to the project file and
the quarterly report as provided for in Stipulation XVII.B. No additional
consultation will be required.
c. If the new APE has not been previously surveyed to current standards, but the
ADOT HPT has reason to believe that inventory of the area within the modified
APE is unwarranted, the ADOT HPT will notify SHPO or THPO, as applicable,
and the federal or state land managing or permitting agency or Signatory Tribe
with jurisdiction, if any, to provide an explanation for ADOT’s position that new
survey is not warranted and the results will be documented through a scope
change memo in accordance with Stipulation VIII.A.3. Should any one of the
parties object within 15 calendar days to the decision that new survey is not
warranted, ADOT will follow Stipulations VIII.D through VIII.G, as needed.
3. If the scope changes do require modifying the APE, and new survey is conducted,
then, depending on the survey results, ADOT will proceed as follows.
a. When no additional cultural resources are identified within the new APE, and the
scope change will not alter the finding of effect for the undertaking, then the
ADOT HPT will ensure that a survey report meeting current SHPO and ASM
standards is prepared documenting the negative findings. If the survey was
conducted on lands managed by a federal, state, or local government agency or
Signatory Tribe with jurisdiction, ADOT will consult or coordinate with the
landowner following Stipulation V or VI, as applicable regarding the adequacy of
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
the survey report. The finding and negative survey report will be included as
documentation to the Quarterly Report. No additional consultation will be
required.
b. When additional cultural resources are identified within the new APE, and, as a
result, the finding of effect for the undertaking may be altered, then ADOT will
make the revisions commensurate with the nature and scope of the changed
potential effects and follow the review and consultation process in Stipulation
VIII, as applicable.
X. Preconstruction Geotechnical Testing
A. Preconstruction Geotechnical Testing is a necessary component to the engineering of
safe roadways, but may affect historic properties when undertaken within the
boundaries of prehistoric and historic archaeological sites and traditional cultural
properties (TCPs) that are listed in or eligible for listing in the National Register.
ADOT will follow the applicable procedures in Stipulation VIII above for review of
geotechnical testing.
B. Geotechnical testing is conducted prior to road construction in order to collect data
needed for design purposes. As such, consultation for geotechnical testing may
occur before formal consultation on the undertaking or as the initial consultation
on the undertaking.
XI. Protocol for Installing or Replacing Fencing and Signage
Installing or replacing fencing and signage within road ROWs is a common undertaking
either as a separate task or as part of larger transportation projects. Where Program-funded
undertakings involving the installation or replacement of fencing and signage occur outside
the recorded limits of archaeological sites, ADOT will follow the provisions of Stipulation
VIII.C and Attachment 3 (Screened Undertakings Exempted from Further Review), or
VIII.F.1 (No Historic Properties Affected) as applicable. In the event that Program-funded
undertakings involving the installation or replacement of fencing and signage occur within
the limits of National Register listed or eligible archaeological sites, ADOT shall follow the
protocol in Attachment 7 (Protocol for Installing or Replacing Fencing and Signage). If the
fencing or signage project does not meet the conditions in Attachment 7, then ADOT will
review the project in accordance with Stipulation VIII.
XII. Protocol for Recreational Trails Program Undertakings
FHWA provides Program funding to the states for developing and maintaining
recreational trails and trail-related facilities through the RTP. The RTP is funded through
the Program. In Arizona, the RTP is administered by ASP&T. ADOT provides ASP&T
with environmental and cultural resource review of RTP projects under NEPA and
Section 106, in consultation with SHPO. ADOT will ensure that the Section 106
requirements for RTP projects are met in accordance with the protocol in Attachment 8
(Protocol for Recreational Trails Program Undertakings) and Stipulation VIII.
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
XIII. Local Public Agency Projects
A. FHWA provides financial assistance to the states for LPA transportation projects. The
Stewardship and Oversight Agreement on Project Assumption and Program Oversight
by and between the Federal Highway Administration Arizona Division and the Arizona
Department of Transportation (April 9, 2015) states that Title 23 U.S.C. does not
recognize local entities as direct recipients of federal funds; therefore, ADOT is
responsible for ensuring that federal-aid requirements are met in accordance with the
current stewardship and oversight agreement.
B. ADOT Environmental Planning (EP) is responsible for providing guidance for the
preparation of environmental documents for federal-aid projects in compliance with
NEPA and other environmental laws, including Section 106.
C. ADOT oversees the environmental review process and is responsible for ensuring
that the process is applied correctly to LPA projects, and for reviewing
environmental documents to ensure that they comply with environmental
requirements.
D. ADOT will ensure that the Section 106 requirements for LPA projects are met in
accordance with the applicable provisions of Stipulation VIII of this Agreement.
E. For LPA projects where ADOT has made a finding of No Adverse Effect or No
Adverse Effect with Standard Conditions, ADOT will consult with SHPO and the local
government agenc(ies) at the time that the finding is made and give SHPO the
opportunity to request continuing consultation as design progresses. For projects with a
finding of No Adverse Effect with Standard Conditions, this consultation may be
conducted informally through email or telephone calls and documented for the project
file and the quarterly report as required under Stipulation XVII.B.
F. For LPA projects where the LPA is a CLG and the CLG, through consultation, has
notified ADOT that they want to be notified about quarterly reported actions crossing
lands under their jurisdiction, ADOT will notify the CLG of such quarterly reported
actions. Those CLGs who do not notify ADOT that they want to receive notifications
about quarterly reported actions crossing lands under their jurisdiction will receive no
notifications on these actions. ADOT will continue to invite CLGs and all LPAs to be
consulting parties, on all actions with findings of No Adverse Effect, No Adverse Effect
with Standard Conditions, or Adverse Effect for LPA projects under their jurisdiction.
XIV. Post-Review Discoveries
A. If cultural resources are encountered after the Section 106 review process detailed in
Stipulation VIII has been completed, ADOT shall require the person in charge of
construction to immediately cease construction within a 50 foot radius of the
discovery location, secure the discovery location against further disturbance and
notify ADOT. ADOT shall notify SHPO or THPO, as applicable, and any land
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
manager or owner.
B. If the discovery is on state, county, or municipal land, ADOT shall also notify
the Director of ASM per A.R.S. § 41-844.
C. If the discovery is an Isolated Occurrence (IO), the ADOT HPT or CRP shall examine
the area to determine whether additional in situ artifacts and/or features are identified.
If, after examination of the area, the ADOT HPT or CRP determines that the
artifacts/feature is an IO and not part of a larger site; the ADOT HPT or CRP will
formally document the IO (photograph and description) and ADOT HPT will provide
the information to the appropriate land managing or regulatory agency and SHPO. In
the event that the IO is an object of cultural patrimony (e.g. ceremonial) that may be
eligible for listing on the National Register, the ADOT HPT shall contact the land
managing agency and Tribes and request input on the disposition of the IO and the
continued construction in the vicinity of the discovery.
Any cultural resource that does not meet the definition of an archaeological site in The
Arizona State Museum Archaeological Sites Recording Manual (1993), or its successor
document will be considered an IO (except for in use historic structures which will be
recorded separately) for the purposes of this Agreement. When Program-funded
undertakings are located on lands managed by a federal or state agency or on Tribal
lands, ADOT will follow the applicable definitions of the agency or Signatory Tribe
with jurisdiction.
D. If the discovery is an archaeological site, ADOT shall ensure that a CRP meeting the
qualification standards for archaeology in Stipulation IV inspects the discovery within
24 hours noting, where possible, its nature, age, extent, condition and National
Register eligibility, if it has not been previously evaluated. If the discovery is on land
owned or managed by a federal or state agency or by a Tribe, ADOT will follow the
landowner’s definition of a site; otherwise, the ASM definition of a site will be
followed in implementing this stipulation. ADOT will electronically submit an
inspection summary within 48-72 hours to SHPO or THPO, as applicable; the federal
or state land manager or owner; ASM, when warranted; and any Tribe that may attach
religious and cultural significance to the discovery, along with a recommendation on
National Register eligibility and a proposal for resolving any adverse effects, in
accordance with 36 C.F.R. § 800.13(b)(3). The reviewing parties will have two
business days to provide comments. ADOT shall take into account all comments
received within the review period.
E. Where there is concurrence among the land managing agency or Signatory Tribe, if
any, ADOT and SHPO or THPO, as applicable, ASM when warranted, and any Tribe
that may attach religious and cultural significance to the discovery, that the discovery is
not National Register eligible, ADOT will document this decision and resume
construction at the discovery location and notify the parties of its actions.
F. Where there is concurrence among the land managing agency or Signatory Tribe, if
any, ADOT and SHPO or THPO, as applicable, ASM when warranted, and any Tribe
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
that may attach religious and cultural significance to the discovery, that the discovery is
National Register eligible, ADOT will carry out its proposed actions to resolve the
adverse effects. ADOT shall submit a report of the actions to SHPO or THPO, the
applicable land manager or Tribe, and ASM, when warranted, once the action is
completed.
G. Where there is a dispute regarding National Register eligibility among the land
managing agency or Signatory Tribe, if any, ADOT and SHPO or THPO, as
applicable, ASM when warranted, and any Tribe that may attach religious and cultural
significance to the discovery, ADOT shall follow the procedures in Stipulation
VIII.E.5. If the Keeper of the National Register determines the discovery is National
Register eligible, ADOT shall follow Stipulation XIX.F. Alternatively, ADOT may
treat the discovery as if it is National Register eligible and follow Stipulation XIV.F.
H. If the post review discovery includes human remains, then ADOT will follow
Stipulation XV. As general guidance, ADOT will follow the ACHP’s Policy
Statement Regarding Treatment of burial Sites, Human Remains and Funerary
Objects (2007), unless there is project specific documentation.
XV. Treatment of Human Remains
A. Treatment on Federal Lands
Under the terms of the MOUs, FHWA has assigned and ADOT has assumed all of the
US Department of Transportation Secretary’s responsibilities under NEPA for
environmental review, reevaluation, consultation, or other action pertaining to the
review or approval of highway projects under the NAGPRA, 25 U.S.C. §§ 3001–3013;
18 U.S.C. § 1170 and its implementing regulations at 43 CFR Part 10. ADOT will
comply with NAPGRA, as follows.
1. On federal land, if the discovery of human remains and/or cultural items as defined
by the NAGPRA is anticipated to occur during archaeological excavation or
construction, ADOT will assist the federal land managing agency to develop a Plan
of Action (POA) in accordance with NAGPRA regulations 43 C.F.R. § 10.3. If the
federal land managing agency has an existing POA in effect, ADOT will follow its
consultation and treatment provisions, as appropriate. ADOT will notify SHPO of
the discovery.
2. If a NAGPRA POA is not in effect, and human remains and/or cultural items, as
defined, are encountered on federal lands either through archaeological excavation
or during construction, ADOT shall require the person in charge to immediately
cease within a 100-foot-radius of the discovery, take steps to protect the discovery,
and promptly report the discovery to ADOT and the federal land managing agency.
ADOT will immediately report the discovery to SHPO. The federal land managing
agency shall then follow the provisions for inadvertent discoveries in compliance
with the NAGPRA regulations at 43 C.F.R. § 10.4.
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
B. Treatment on Tribal Lands
1. On Tribal lands, if the discovery of human remains and/or cultural items, as
defined under NAGPRA, is anticipated to occur during archaeological excavation
or construction, ADOT will assist the BIA and the Tribe in preparing a NAGPRA
POA, if not already developed. Where a NAGPRA POA is in effect, ADOT will
follow its consultation and treatment provisions.
2. If a NAGPRA POA is not in effect, and human remains and/or cultural items, as
defined under NAGPRA, are encountered on Tribal lands either through
archaeological excavation or during construction, ADOT shall require the person
in charge immediately cease within a 100-foot-radius of the discovery, take steps
to protect the discovery, and promptly report the discovery to the Tribe and
ADOT. ADOT will report the discovery to BIA. ADOT will notify SHPO only if
the Signatory Tribe does not have a THPO. ADOT will follow the Tribe’s laws
regarding the disposition of human remains, or if such laws do not exist, will
follow the provisions for inadvertent discovery in compliance with the NAGPRA
regulations at 43 C.F.R. § 10.4.
C. Treatment on State, County, Municipal and Private Lands
1. On state, county, or municipal land, if the discovery of human remains is
anticipated to be found during archaeological excavation or construction, ADOT
shall ensure that the institution, firm, or consultant responsible for the work
develops a Burial Agreement with ASM and thereafter adheres to the terms of
that Burial Agreement in the event human remains, funerary objects, sacred
ceremonial objects or objects of national or Tribal patrimony are encountered
during the investigation.
2. If human remains, funerary objects, sacred ceremonial objects or objects of
national or Tribal patrimony are discovered on state, county, or municipal lands,
either through archaeological excavation or during construction, and no Burial
Agreement is in place, ADOT shall require the person in charge to immediately
cease within a 100- foot radius of the discovery, take steps to protect the discovery,
and immediately notify ADOT. ADOT shall inform SHPO and the Director of
ASM and shall follow the requirements of A.R.S. § 41-844. ADOT shall also
notify the state agency or local government with jurisdiction, if any.
3. If human remains or funerary objects are discovered on private lands, ADOT shall
require the person in charge of construction to immediately cease within a 100-
foot- radius of the discovery, take steps to protect the discovery, and immediately
notify ADOT. ADOT shall inform SHPO, the Director of ASM and the landowner
and shall follow the requirements of A.R.S. § 41-865.
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
XVI.
Emergency Situations
A. Pursuant to 36 C.F.R. § 800.12(d), this stipulation applies only to undertakings
that will be implemented within 30 calendar days after the disaster or
emergency has been formally declared by the President, the Governor of
Arizona, or a Tribal government of a Signatory Tribe in Arizona. For the
purposes of this Agreement, emergencies may also be declared by ADOT’s
Director or the State Engineer, in consultation with the appropriate land
managing agencies, if any. ADOT may request an extension of the period of
applicability from ACHP prior to the expiration of the 30 days.
B. Exempt from this Agreement are all immediate rescue and salvage operations needed
to preserve life or property.
C. ADOT shall determine whether the emergency undertaking has the potential to affect
historic properties. If historic properties may be affected by the emergency
undertaking, ADOT shall notify SHPO or THPO, as applicable; the appropriate land
managing or regulatory agency or Signatory Tribe; ASM, if the discovery is on state,
county, or municipal land; and any Tribe that might attach religious and cultural
significance to the affected property and afford them an opportunity to comment
within five business days of the notification.
D. Notification shall include, to the extent such information is available: description of
the nature and extent of the property or properties, an assessment of National Register
eligibility of any properties, the type and extent of any damage to the property, the
proposed action, any treatment measures that would take the effects into account, and
a request for comments.
E. ADOT shall provide SHPO or THPO, as applicable; any land managing or
regulatory agency or Signatory Tribe, and any other consulting parties to the
undertaking, a narrative report documenting the actions taken in accordance with this
expedited consultation process within 60 calendar days following the initiation of
expedited consultation. SHPO or THPO, and any consulting parties to the
undertaking, will have 30 calendar days to provide comments, after which ADOT
will complete the narrative report and provide copies to SHPO or THPO and the
consulting parties.
F. Where possible, ADOT shall ensure that such emergency actions are undertaken in a
manner that does not prevent future preservation or restoration of historic properties.
Where such emergency actions may affect historic buildings or structures, they shall be
undertaken in a manner that is consistent with the SOI’s Standards for the Treatment of
Historic Properties wherever possible. In addition, where possible, ADOT shall ensure
that such actions shall be done with on-site monitoring by the appropriate preservation
professional who meets the applicable professional qualification standards in
Stipulation IV.
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
XVII. Documentation and Reporting
A. Documentation
1. All documentation that supports findings and determinations made under this
Agreement shall be consistent with 36 C.F.R. § 800.11. Documentation
requirements shall also meet the SHPO Survey Report Standards, the AAA standards,
and any current ASM policies as applicable.
2. Documentation prepared by LPAs, or their consultants, in support of findings
and determinations made under this Agreement shall be submitted to ADOT for
review and approval. ADOT shall transmit to SHPO, and other consulting
parties, only documentation that ADOT has reviewed and approved.
3. All documentation prepared under this Agreement shall be kept on file at ADOT,
and made available to consulting parties and the public at their request, consistent
with applicable confidentiality requirements per Stipulation XX.
B. Quarterly Reporting
1. On a quarterly basis, following the state of Arizona’s fiscal year, ADOT shall
compile and submit to the signatories and concurring parties to this Agreement a
list of undertakings exempted from individual consultation as provided for under
Stipulations VIII.C.1, VIII.D.7, VIII.F.1.a, VIII.F.2.a.i, IX.A.1, IX.A.2.b,
IX.A.3.a, XI.A.1, and XIII.E of this Agreement. The list will be prepared no later
than four weeks after the end of each quarter (September 30, December 31, March
31, and June 30). This list shall include, but is not limited to, the following items
for each undertaking, as applicable:
a. The undertaking name and project numbers.
b. A description of the undertaking.
c. A map showing the undertaking’s location.
d. The number of acres for new survey.
e. The applicable exemption.
f. The applicable finding of No Historic Properties Affected.
g. The applicable finding of No Adverse Effect with Standard Conditions.
h. Scope changes.
C. Annual Report and Meeting
1. ADOT shall compile an annual report for submission to the signatories and
concurring parties to this Agreement. ADOT will consult at the end of the calendar
year with the signatories on the format and content of the report.
2. ADOT’s letter transmitting the annual report to the signatories will ask the
signatories if they would like to hold a meeting to review the performance of this
Agreement. This meeting may be with an individual signatory or multiple or all
33
Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
signatories.
3. ADOT shall post the annual report on its website so that the annual report is
available for public inspection at the time it is submitted to the signatories and
concurring parties.
XVIII. Confidentiality
A. Pursuant to 36 C.F.R. §800.4(b), ADOT, as the responsible federal agency, is required
to take into account any confidentiality concerns raised by the Tribes or other
consulting parties to the undertaking about the nature and location of any historic
properties identified in the implementation of this Agreement. Under 36 C.F.R. §
800.11(c), ADOT as a recipient of funding through the Program, may withhold from
public disclosure certain information pursuant to Section 304 of NHPA (54 U.S.C. §
307103). Section 304 allows ADOT, in consultation with the SOI, to withhold the
location, character, or ownership of a historic property if ADOT determines that
disclosure may: 1) cause a significant invasion of privacy; 2) risk harm to the historic
property; or 3) impede the use of a traditional religious site by practitioners.
B. For any Program-funded undertaking on federal land, including land held in trust for
Signatory Tribes by the United States, information about the nature and location of
archaeological resources may be withheld by the federal land managing agency under
Section 9 of the ARPA (16 U.S.C. § 470hh) and its implementing regulations (43
C.F.R. § 7.18), subject to any limitations therein.
C. For any Program-funded undertaking on lands owned or controlled by the state of
Arizona, the state may withhold information that relates to the location of
archaeological discoveries, as described in A.R.S. § 41-841 or A.R.S. § 41-844,
and A.R.S. § 39-125, or places or objects that are included on or may qualify for
inclusion on the Arizona Register of Historic Places as described in A.R.S. 41-
511.04, subsection A, paragraph 9.
D. Other restrictions on the public release of culturally sensitive information relating to
cultural resources discovered on a Signatory Tribe’s Tribal lands may apply pursuant
to Tribal law and policy. ADOT will consult with any Signatory Tribe that raises
confidentiality issues to ensure compliance with any applicable tribal law or policy
restricting the release of culturally sensitive information about cultural resources
found on the Signatory Tribe’s land, as needed.
E. Pursuant to this stipulation, the signatories and concurring parties agree to
appropriately safeguard and control the distribution of any confidential information
they may receive as a result of their participation in this Agreement. Such safeguarded
information is exempt from disclosure under the Freedom of Information Act (5 U.S.C.
§ 552).
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
XIX. Dispute Resolution
A. All signatories and concurring parties to this Agreement shall strive to address
and resolve disagreements informally.
B. In the event that informal resolution cannot be achieved, any signatory or concurring
party to this Agreement may object in writing to ADOT regarding any action carried
out or proposed with respect to implementation of this Agreement. ADOT shall notify
SHPO and within 10 calendar days, initiate consultation with the objecting party to
resolve the objection.
C. If after initiating such consultation with the objecting party ADOT determines that
the objection cannot be resolved through consultation, ADOT, as the responsible
federal agency, shall forward all documentation relevant to the objection to ACHP,
including the agency’s proposed response to the objection.
D. Within 30 calendar days after receipt of all pertinent documentation, ACHP shall
exercise one of the following options:
1. Advise ADOT that ACHP concurs with the agency’s proposed response to
the objection, whereupon ADOT will respond to the objection accordingly;
or
2. Provide ADOT with its advisory opinion, which the agency shall take into
account in reaching a final decision regarding its response to the objection; or
3. Notify ADOT that the objection will be referred for comment pursuant to 36
C.F.R. § 800.7(a)(4), and proceed to refer the objection and comment.
E. ADOT, as the responsible federal agency, shall take the resulting comment into
account in accordance with 36 C.F.R. § 800.7(c)(4), with reference only to the
subject of the dispute. ADOT shall notify all signatories and concurring parties of
its decision with regard to the dispute.
F. ADOT’s responsibility to ensure that all actions under this Agreement that are not
the subject of the dispute are carried out will remain unchanged.
G. At any time during the implementation of the terms of this Agreement, should any
member of the public raise an objection in writing pertaining to such
implementation to any signatory party of this Agreement, that signatory shall
immediately notify ADOT. ADOT shall immediately notify the other signatories in
writing of that objection. Any signatory may choose to comment on the objection to
ADOT. ADOT shall provide a 30 day comment period for objections. ADOT shall
consider the objection, and in reaching its decision, ADOT will take all comments
from the other parties into account. Within 15 days following closure of the
comment period, ADOT will render a decision regarding that objection and respond
to the objecting party. ADOT’s decision regarding resolution of the objection will
35
Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
be final. Following the issuance of its final decision, ADOT may authorize the
action subject to dispute hereunder to proceed in accordance with the terms of that
decision.
XX.
Amendments
Any signatory to this Agreement may request that it be amended, whereupon the
signatories will consult to reach a consensus on the proposed amendment. ADOT will
seek input from the concurring parties on any proposed amendments. Any amendment
to this Agreement must be signed by all signatories. ADOT will provide copies of the
amendment to the concurring parties.
XXI.
Withdrawal
Any Signatory Tribe may withdraw from this Agreement. In the case of withdrawal
from this Agreement by a Signatory Tribe, ADOT shall comply with 36 C.F.R. Part
800, subpart B, for all Program-funded undertakings on or affecting lands or historic
properties on the withdrawing Tribe’s Tribal lands, in lieu of this Agreement. For all
Program-funded undertakings off the withdrawing Tribe’s Tribal lands, ADOT shall
consult with the Tribe pursuant to 36 C.F.R. Part 800, subpart B, in lieu of this
Agreement. Withdrawal from this Agreement by a Signatory Tribe does not terminate
the Agreement for the remaining signatories and concurring parties.
XXII. Termination
A. Any signatory or invited signatory that may decide to terminate the agreement, shall
consult in writing with the other signatories to determine whether the agreement can
be amended to address concerns. If amending the agreement is not appropriate the
agency shall continue consultation with other signatories regarding whether
termination of the agreement is warranted or whether individual withdrawal is more
appropriate.
B. If the FHWA, ADOT, SHPO, ACHP, or an Invited Signatory determines that it wants
to terminate this Agreement, the signatory shall provide a thirty (30) day notification
to the other signatories in writing to explain the reasons for proposing termination,
and consult with the other parties to seek an amendment to the Agreement pursuant to
Stipulation XX.
C. Should such consultation result in an amendment to the Agreement avoiding
termination, the signatories shall proceed to amend the Agreement in accordance with
Stipulation XX and carry out its provisions as amended.
D. Termination of the Agreement by a Signatory Tribe or state land managing agency
shall only apply to the lands under their respective jurisdiction. In such case, ADOT
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
shall comply with 36 C.F.R. § 800(B), for all undertakings on or affecting lands within
the terminating Signatory Tribe’s Tribal lands, or the terminating agency’s lands
within the scope of this Agreement. For Program-funded undertakings off the
terminating Tribe’s Tribal lands, ADOT shall consult with the Tribe pursuant to 36
C.F.R. § 800 (B), in lieu of this Agreement.
E. Should ACHP, ADOT, FHWA, SHPO or invited signatory terminate this Agreement,
either individually or collectively, the Agreement will be terminated in its entirety.
Upon termination of this Agreement in its entirety, and prior to continuing work on an
undertaking, ADOT must either a) execute a PA pursuant to 36 C.F.R. § 800.6 or b)
request, take into account, and respond to comment of the ACHP under 36 C.F.R. §
800.7. ADOT shall notify the signatories as to the course of action it will pursue.
F. Otherwise, FHWA and ADOT shall comply with 36 C.F.R. § 800(B) with respect to
each individual undertaking that would otherwise be reviewed under this Agreement.
XXIII. Duration
This Agreement shall remain in effect for a period of 10 years after the date it takes effect,
unless terminated prior to that time. At least one year prior to the expiration date, ADOT
will inform the signatories and shall consult to determine if the Agreement should be
allowed to expire or whether it should be extended. This Agreement may be extended for
an additional term, the length of which is to be agreed to by the signatories. The extension
shall be codified through an amendment to this Agreement in accordance with Stipulation
XX. Where there is no agreement by all the signatories, the Agreement will not be
extended and it will expire.
XXIV. Counterparts
This Agreement may be executed in counterparts, each separately and together
constituting one and the same document. Execution and delivery of this Agreement by
facsimile or electronic mail shall be sufficient for all purposes and shall be binding on
any party to this Agreement.
Execution of this Agreement by the FHWA, ADOT, SHPO and ACHP and
implementation of its terms are evidence that ADOT has taken into account the effects of
Program-funded undertakings on historic properties and afforded the ACHP an
opportunity to comment.
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
SIGNATORY PAGE
PROGRAMMATIC AGREEMENT
PURSUANT TO SECTION 106 OF THE
NATIONAL HISTORIC PRESERVATION ACT
REGARDING
IMPLEMENTATION OF FEDERAL-AID TRANSPORTATION
PROJECTS IN THE STATE OF ARIZONA
FEDERAL HIGHWAY ADMINISTRATION
__________________________
Karla S. Petty
Arizona Division Administrator
Date__________________
38
Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
SIGNATORY PAGE
PROGRAMMATIC AGREEMENT
PURSUANT TO SECTION 106 OF THE
NATIONAL HISTORIC PRESERVATION ACT
REGARDING
IMPLEMENTATION OF FEDERAL-AID TRANSPORTATION
PROJECTS IN THE STATE OF ARIZONA
ARIZONA DEPARTMENT OF TRANSPORTATION
____________________________________________
Dallas Hammit
Deputy Director/State Engineer
Date___________________
39
Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
SIGNATORY PAGE
PROGRAMMATIC AGREEMENT
PURSUANT TO SECTION 106 OF THE
NATIONAL HISTORIC PRESERVATION ACT
REGARDING
IMPLEMENTATION OF FEDERAL-AID TRANSPORTATION
PROJECTS IN THE STATE OF ARIZONA
ARIZONA STATE HISTORIC PRESERVATION OFFICE
____________________________________________
Kathryn Leonard
State Historic Preservation Officer
Date________________________
40
Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
SIGNATORY PAGE
PROGRAMMATIC AGREEMENT
PURSUANT TO SECTION 106 OF THE
NATIONAL HISTORIC PRESERVATION ACT
REGARDING
IMPLEMENTATION OF FEDERAL-AID TRANSPORTATION
PROJECTS IN THE STATE OF ARIZONA
ADVISORY COUNCIL ON HISTORIC PRESERVATION
____________________________________________
Aimee Jorjani
Chairman
Date_________________________
41
Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
TRIBAL SIGNATORY PAGE
PROGRAMMATIC AGREEMENT
PURSUANT TO SECTION 106 OF THE
NATIONAL HISTORIC PRESERVATION ACT
REGARDING
IMPLEMENTATION OF FEDERAL-AID TRANSPORTATION
PROJECTS IN THE STATE OF ARIZONA
By __________________________________
Title _________________________________
Date ________________________
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
INVITED SIGNATORY PAGE
PROGRAMMATIC AGREEMENT
PURSUANT TO SECTION 106 OF THE
NATIONAL HISTORIC PRESERVATION ACT
REGARDING
IMPLEMENTATION OF FEDERAL-AID TRANSPORTATION
PROJECTS IN THE STATE OF ARIZONA
By __________________________________
Title _________________________________
Date ________________________
43
Programmatic Agreement for Federal-Aid Transportation Projects in Arizona – April 2020
CONCURRING PARTY PAGE
PROGRAMMATIC AGREEMENT
PURSUANT TO SECTION 106 OF THE
NATIONAL HISTORIC PRESERVATION ACT
REGARDING
IMPLEMENTATION OF FEDERAL-AID TRANSPORTATION
PROJECTS IN THE STATE OF ARIZONA
By __________________________________
Title _________________________________
Date ________________________
Programmatic Agreement for Federal-Aid Transportation Projects in Arizona
April 2020
Programmatic Agreement for Federal-Aid Transportation Projects in Arizona
Attachment 1: Bureau of Reclamation Programmatic Agreements
“Programmatic Agreement Among The Bureau of Reclamation, Phoenix Area Office, Salt River
Project, and the Arizona State Historic Preservation Office Regarding Historic Preservation
Treatment for the Salt River Project System of Historic Dams and Associated Dam Facilities
Operated and Maintained by the Salt River Project for the Bureau of Reclamation (2009)”
“Programmatic Agreement Among the Bureau of Reclamation, Phoenix Area Office, The Arizona
State Historic Preservation Officer and Salt River Project Regarding Historic Preservation
Treatment for the Salt River Project System of Historic Main Canals, Laterals, and Associated
Features Operated and Maintained by the Salt River Project for the Bureau of Reclamation
(2013)”
-I//f0-zooz-/70Z
Finai SRP DAMS AGREEMEN f 1,108/2009
PROGTTAMMATIC AGREEMENT
AMONG
THE BTIREAU OF RECLAMATTON, PIIO-ENIX AREA OFFICE,
SALT RT!'ER PROJECT. AND THf ARIZONA STATI
I{ISTORIC PRXSERVATION OFFICE
REGARDING
HISTORIC PRISERVATION TREATMENT FOR TIIE SALT RIVI'R PROJECT
SYSTEM OF HISTORIC DAMS AND ASSOCIAI'tr]D DAM
FACILITIES OPERdTED AND MAINTAINED I}Y TI1E SALT RIVER PROJECT
F(}R THE BfIREAU OF RECLAMATION
WIIIR-EAS, the l]ureau olReclamatioD (Reclamation), ff the lead Federal agelrcy. has
delermined that modifioatidrs and system upgfades to the Salt River Projec{ (SRP) s} stem of
dalns and associated dam f'acilities resulting fiom required opcration. maintenance. and
rcplaccnrcnt (OM&R) !!ill have continued similar ard repetitive ellects upoD the danrs and
associaled facililies: and
WHEREAS. the Salt River Prclect Agriculiural t provcnent and Power District operates and
marntains the dams and associatcd lacililics pursuant lo the cortract befween dre llnited States
erd the Salt River Valley Watem tlsers Association
(SRVWIjA). daled September
6, I917- such
obligations ofsaid coruact havirg been ass med by SRP pufsuant to a contract dalcd March 22,
l9-17. betFeen SRP and SRVWIJA. as alnendcd. and SRP has ptr{icip.rted in consuliatioD and is
a signatory to this PrograDlmatic Agrcemcnt (Agrccmcnl.): and
WHEREAS, this Agreenrent is ooDcerned solely with that portion ofthc SRP system ofdams
and associated dam f'acilities that is owned b] the United States or lor which the United States has
oblaiied easenents, and this sys|em includes seven dans: fheodore Roosevelt, Horse Mesa!
Momon I.lal- Stewarl Mounlnin, aDd Cranite ReefDivelsion Dams or the Salt Rivcr, and
Horseshoe and Bartlett Dams on the Ve.de River: and
WHEREAS, Horse Mesa. Momror Flat, Stewarl Mountain. and Granite Reeff)ivorsion Dams on
thc Salt Rivcr and Horseshoe and Ba.tlctt Danls on thc Vcrde River have been determired
eligible lor Iisling on rhc National Regisler ofHisroric Plaoes. and safe!",ofdam modifications to
'I heodore Roosevelt Dam ha\,e altered it so signiioanlly that it is no longer conside.ed eligible
fbr Iisting on the Natiorral Register-
WHEREAS, previous safery ofdaln modifications to the above mentioncd dams rcquired fiat
Reclamation conplcte llistoric American Engineering R€cords (ItAl-R) documenlation for
Iheodore Rooseveh, Holse Mesa, Nlornxx lrlaL Stcwarl N,lountain. Grarite ReelDiversion,
Holseshoe. and Bartlett Dams; and
WIIEREAS, thc othcr major conplcnrenlery parts ofthc SRP system. consistinll ofrme main
canals (lhe Arizona. South, Consolidated, lasterD. Crand. I empe. Western. Highline. and
Crosscut); approximatelv 1.200 miles of secondary ard tcrtiary latcrals, osl ofwhich, but rol
all, are owned by thc United Statcs or lor which thc flnitcd Sktes has easements; and assocrated
1'acililies (the l-ire Pond Punp llouse, Indian Bend Pump Dilch. Oid Crosscut Ditch, thc San
Final SRl, DAMS A(IRhFIMENT l/08/2009
Francisco Lateral) have also been determined eligible fbr listing on the National Register ol
Flistoric Places ard are covered under a 2001 Programmatic Agreement bctvccn Rcclanation,
the Advisory Council on Hisloric Prescrvation (Council), thc Arizona State Historic Preservatron
Olfice (SHPO), rl1d SRP; and
WHEREAS, tle Council has decl;ned an invitation by Reclamation to pafticipatc in this
Agrccmcnt; and
WHEREAS, the parties agree that consultation on t'uture similar and repetitivc O&MR
undertakings affecting thc dans would benefit lrom the flexibili{y provided lor under l6 CFR
Part C, Section 800.l4(b)( I )(i), and wish to enler into this Agreemenl in oftler to fhcilitate those
WHIREAS, this Agreement is not a conbacl unde. Fedcnl procurcmenl guidelires: and
WIIERIiAS, thc Statc ofArizona and thc Arizoua SFI?O have certain stipolations that must be
parl ofany AgreemeDt signed by the State;
NOW, TI{nRIFORE,
SRt, the SHPO, and Reclamation aElree
that HAER documentation has
been compleled and has been agreed upon as adequale mi{igalion lor OIvl&R activilies at the
danrs and their associxted lacililies. No additional consultation shail be required for OM&R
undcnakings atl-ccting these teatures except fbr certaill cases that afl-ect the exterior appearaDce
ofthc dams and associated facilitics. as notcd bclo\\'.
STIPTII,ATIONS
l.
Standard and Routin€ OM&R Acrivitics
SRP shall conlinue to corducl rouline OM&R. ofthe irlterior porlions ofthe dams
aod associated tac ilities without Sect ion I 06 consu Itation w ith Reclainat ion and the
SIIPO. Certain routine OM&R activities (,^ttachment l) on the exie.ior areas ofthe
dams aDd associaled facilities can also be done \\,ilhout consultation with Reclam3tiun
and sHPo.
A-
Associated facilities include, but arc rot necessarily lin1itcd to, powerhouses,
various buildings used fbr storage. offioes. workshops, living quarcrs. and so
forth. incllrding any lacilitics that may tle abardoned and no longer in use.
B.
Atachmenl 1 is nol aD inclusive lisl. C)ther rouline and starldard OM&R ilems
may bc addcd after consultation with SHPO.
II.
Othcr than Standaril and Routine OM&R Activities
Wher an OM&R action not specifically listed in Atlachment i is proposed lor lhe
exteriof area ola dam or associated facility. SRP shall consulr with ReclaDlation. ll both
SRP and Reclamation, alter careful evaluation ofthe proposed OM&R action, deterDliDe
that i1 will have no adverse effect io thc visual intcgrity ofthc danl or associaicd thcilio,
SRP nrav Droceed wilh the OM&R action withoul SHPO consuliation.
Firal SRP DAMS ACREEMENT l/08/2009
C,
D.
assumcs SIIPO concurrence, and the uDdertaking may occur with identificd
avoldaDce measures.
Avoidance ofarchaeologioal properties will ordinarily be underslood to reqoire
retention olsuch properties iD place and their protection againsl intentioDal and
inadvertent damage resulting dircctly or iodirectly fiom the undertaking.
when significant archaeological propenies may be advemely affected by OM&R
or other activities, Reclamalion will consult with the STIPO pursuant to l6 CFR
800.
Educational Awareness Program
vI.
SRP cunently offbrs classcs to new and currert employees on the historical significance
ofthe SRP darn and caral sr-stem ard its imponarce to the development ofthe Salt Ri\rer
Vallcy. These classes are prcsented on an occasional basis by shff trorn SRP Research
Archives and Dnvironmcntal Planning. SRP shall develop and implement a plan for
continuing these educational classes on a regular basis that will continue for the duration
ofthis AE:reeDlenl.
With the implomentation ofthis AgreemeDt, Reclamation shall takc the lead,
lvith assistaDce
lrom SRP, to prepare documcntation lbnnally Do]ninaling the
SRPdamandcanal sr"stem
to the National Rcgi stcr of I Iistoric Places. The
nom;nation *,ill fbcus (D the history of rvaler managcmcnl and the significant
oontributiors thc system has made to the aliricultural and econonic developnenl
oftire Sall River Vallc'. O c€ fbrmally listed on the NatioDal Regisler. Regisler
plaques can be used al each offie dams and thc mailr SRP headquarieN builttitg
as part ofthe edrcation arvareness
prcgran
Noniration ofthc SRP systcm to tbe National Registef shall in no way impede
the OM&R ot the SRP systcm. This Agrcemcnt (as *,e11asthe 2001 SRP ClaDals
and Laterals Programmatic AgreemeDt) provides adequate stipulations tbr
miligation ofadverse elfects fiom OM&R acti.rities that ensure safe and efficient
operation oflhe sysiem ofdams and canals.
B.
Vll.
Ametrdments to th€ Asr€emoflt
Any signatory to this Agreement nray requesl thal il be anended- \\'hcreupon the parties
will consuh in accordance with l6 CFR 800.l4(b) to consider such amendmcrt. Whc.c
no consensus can be reached, the Aelccmcnt will not bl- arnended.
V I.
Dispu{e Resolution
Should aoy party to this Agreement object in writing 1() RcclamatioD rcgardiog
the nanner i which thc terms ofthis Agreenrent are canied ou1. Reclamrliorl
shnll consull witlr thc objecting partl,to resolve the objeciion. lfReclamation
determines that the objection carnot be rcsolved, Rcclanation shall requesi the
assistarrcc
ot'the Council and shall for*,ard all documenlalion relcvart to the
objection to the Courcil. Wilhin 30 calcnda. days after receipt ofall petinert
documentation" the Council *,ill eilher:
liinal SRP DAMS AGREEMENT 1/08/2009
At thc bcginniig ofeach calendar year, Reclamation will submit to SHPO, lbr
rcview and comment, a list otOM&R actions that were determined to hav€ no
III.
OM&R Activiti€s Requiring Section 106 Consultation
When an OM&R action not specilically listed in Attachmeni I has been deternined by
SRP and Reclamation to constilute either a questionable or a definite impact that would
aflect the visual integrity ofa danl o. associated facility, Reclamation will consuk with
SHPO. SHPO has 30 calonda. days i which to review the proposed aotion and suggest
possible altemative mitigation measures thal n1ay not have been considered by SRP and
Reclamation but that could meel sone or all ofthe OM&R needs without adverscly
impactirg visual integrity. Ifno reasonable mitigation aitemative is identified, or ifthe
proposed mitigation altemative proves to substantiaily increase (10% or more) project
cost, SRP lnay prooeed with the oigiDal OM&R action.
IV.
SIIP shall notiff Reclamaiion early in lhe planning process when it anticipates
any OM&R eftort that may result in sigDificanr visual efTects to a dam or related
faoility.
Emerg€ncies and thr€ats to saf€ty rnd health
During emefgency
situations.
of in siiuations
whcn cmployce or public safcty o. heahh i\
threatened, SRP can take al1 appropriate actions necessary to mitigate lhc thrcal. llthe
actions adversely affected thlj visual inlegrity ofthe dam or associated lacilities. SRP
shall docunent lhe narure tile aoliors alrd lheir eft'ect as soon as practical and notify
Reclamation.
Reclamation
shall consult with SFIPO as pe.36 CFR 800.
Reclamation shall rontinue to ronsult with the SHPO as follows:
When an OM&R undertaking is planned that may afTect lands ad.jaccrt to a darn or dar'
frcility. and thesc lands not havc bc(rn previously surveyed lor cultural resouroes,
Reclamation will ensnre that this land ;s surveyed lor archaeological properties and canl'
out die followiDg revie\\ steps:
When no archaeological prope(ies are Iourd as a result ofClass III cultural
resolrrces survey ofan undertakiDg's area ofpotentiai cff-cct. Reclamation shalL
provide writtcn documentation to the SHPO oithe survey, surve] fesults, rnd its
Ilnding thal no hisloric properfies are present i]1 the arca ofpolential effects. and
SRP may proceed with its rLDdedaking
withoui SIIPO comment.
Occasionally. as a result ofprevious consultation between the SFIPO and
Reclamation, archacological proporties wifhin an undcrtaking's arca ofpotcntial
effect ha!e already been determined to be eligible lor the National Register of
Historic Plaoes. Ifsuch National Register-eligible propedies will be avoided by
project aotivities, Reclamation shall provide docrnnentation ofthe suney or
prcvious consultation and proposed avoidance measures 1|) SHPO. The SHPO
shallhave I5 calendar days from dale ofreceipt within whioh to object to
Reclamation's linding ofno adverse eff-ect. Ifthc SII?O ob.jects to the
dctcrmination, Rcclamation shall comply wilh 36 CIrR Pad 800.6. Iithe SHPO
does nol respond lvilhil1 I 5 calendar d ays from clate ol rece ip1, Rec 1am ation
B.
Final SRl' I)AMS AGREEMENT Ii08/2009
2.
L
x,
tx.
Clo cur with Rcclanation's proposed rcsponse to the objection.
qhereupon Reclanation may proceed with its action in acco.dance
with the agreed-upon response; or
Provide Reclamation with recotnmendations
which Reclamation shall
take into account in .eachiig a final decision regarding the
Notily Reclamation that the objection will bc rcfened fbr comrnent
pursuant to 36 CFR Soc. 800.7(a)(a). Thereafter, the Council shall
comment, and Reclamation shall .espond in accordance with 36 CFR
Sec.800.7(cX4).
Shoukl thc Council not cxercise one ofthe foregoing options within 30 calendar
da)s of receipt olall perlinenl documcntation, Reclamatior ma) assume that the
Clourcil concurs *,ith its prcposed response 1() lhe obieclio , advisc thc obiecting
par)_ ofthat response, and procced with its actioD in a manner consistent with
Duration
Ihis Agrcemenr shall remain in eff'ect. unless xlnended or lcnnitatcd. for a period of
20 years. at which time this ,{greenrert is Dull rDd void unlcss thc partics agree to an
e\tension. lllhere is no cxtcnsion-
Rcclamation
shall conply uith Sectioll 106 in
accordance wilh l6 Cll:R Part 800, lvhicb r)ay irclude developmelt. erecutio. aDd
implcmcntation
oia new Agreement
or similar docurncot.
Termination
Reclamaliou, SRP. or the SHPO Dray lerminalc this Agrccmcni lly providing
l0-caleDdar-da) s' writtcn notice to the other pafies, provided thal the panies conslllt
during that period 1() seek agrccmcnt on amendments or odrer actions that would avoid
icrminarion. In ihe event ofremination, RcclamatioD wiil comply \\'ith 36 CFR 800.3
through 800.7 with regard to individual underlakings covered b! this Agreement or with
regard to all remaining actions urdcr this AgreemeDt.
Failure to C:rrry Out Terms olthc Agrcement
ln lhe event that thc tenns olthis Agreement are not carri€d oul, Reclanation slnll
comply $ith 36 CFR 800.3 through 800.7 with regarcl to individual acl;ons covered by
tbis Agre€ment or with another applicable Agrecmcnt.
XII.
StatcolArizonaContractingRequircmcnts
B.
xl.
Equal ot|rotur)it! 4,iond isc r imin.rtion
The panies agree 10 conply with Clhaprer 9.1itle,{1, Ariz-ona Revised Statues (Lli\'il
rights). Arizona Exccutive Orders 75 5 and 99-4. and any other l;ederal or State IaFs
relating to equal opporlunity arrd nondiscrimination, including the Anrefioans wilh
Disabilities
Act.
Final SRP DAMS AGREEMENT l/08/2009
B.
Conflicl ofll1leresl-
'lhisAgreementissubjecttocancellationbytheStateunderA.R.S.$38-5llifany
person signilicantly involved in thc Agrccment on behalfofthe Stato is an cmployee or
consultant
ofthe contractor al an) ti1lre while the Agrcemenl or aoy cxtensioD
ofthe
Agreement is in effect.
C.
NonavailabililyofFunds
'I his Ageemcnt shali bc subjcct to available tundirg, aod nothing iD this Agreemert shall
bind thc Statc and Fedcral parties to expenditures
io excess offunds approprialed
and
allooated
lor tie purposes
outlined in this Agreement.
D.
Records
The pan:ies
agree that this Agreement
does not involvo the fumishing ofgoods.
equipment,
Iabor, materials,
or services
to the State ofArizona or any ofits agcncics,
boards, corrmissions.
or depa(menls.
aDd iherefore that A.R.S.$$35 214 and 35 215 d-
not apply.
E.
Arbitratiou
The pa(ies aSree to utilize any arbihation thal is required under applicable
courl rules.
U.S, DEPARTMFNT OF THE INTERIOR. BUREAU OT' RECLAMAI'ION
B)i
Dale: /l'zn/ Z& 7
SAL] RIVER PROJECT
B\
, (.t'\*," :!
\ \.l r.rl -
'
ni.r,,"r v. ll;).lip-A.;iIG uEre'1,1
\la"ag;
Environmental. HR. Land/PPC. Risk Mana!:enrent,
and fclecom
ARlluNA \ I A I ir llls IOI(TC PRf StItV ATIO\ OITTC IR
Arizona State llistoric Prcservalion
Officer
By:
Daic:
-,/
z= /ol
--T-
linal SRI' DAMS ACREEMENT l/08/2009
Attachment I
following are routinc and standard OM&R activities caried out by SRP under its
agreement with Recl.uiation for managing and operating the dams and related facililies.
The list is not inclusive: other OM&R items may bc addcd as ncedcd. once agrced to by
d1e Signatories:
.
Road maintenance activities, including dragging or grading road surface.
application of surfaciog matcrials, and installation and maintenance of
drarnage sruclures.
.
Maintenance oflogbooms and/or bancl booms in forebay and taihace.
.
Maintenancc and/or rcplacement ofsignage.
.
Maintenance and/or replacement oflighting al dam and plant areas.
.
Protective coating nailtenance at gates, fenccs, guardrails, spillway gates
and operations equipnent, penstocks, piping and valvcs, hardr.arc,
equipment cabinets, security devices. doors and windows. fucl tanks,
cranes and hoists- platibnis and staiis. walkwa,vs. buildings and othcr
laciiities. Colors shall be in-kind cxcept n'here required fbr warning or
sa1!ty purposes.
.
Concrete rcpairs to danrs. powerhouses.
spillways. illrd related structues.
including injection grouting ofcracks and lili iiies idd replacenent-in-
kind ofdamagecl or missing concrete.
.
Operational testing ol'spillway gates. engile/generators, outlet valves.
hoists, clirnes. and other equipment.
.
Mainlenance aid/or replacement ofoverhcad po*er facilities including
electrical transmission and distribution lines, polcs and structures,
translb1mels, switches, and related equipmcnt.
.
Mainlenaice and/or replaccmcnt ofdomcstic water systems including
storage tanks. pipelines. valves. and related cquipment.
.
Maintenallce and/or feplaccmcnt oftrans{brmers. breakcrs. and other-
electrical equipment.
.
Roofmaintelaocc and./or repiacement at spilhvay towers, powerhouses,
and associated buildings or faciljtics. Colors shall be in-kind to match
existing where possible.
.
Helipad and emergency landing area naintenance and salety upgradcs.
.
Door and window repairs shall be in-kind to match existing wherc
possiblc-
Final SRP DAMS AGREEMENT l/08/2009
.
Maintenance, addition, and./or replacement of communications equipment
including toweN, structues, microwave dishes, antetuEs, cabling, and
associated equipment.
.
Maintenance and/or rq)lacement of secunry devices includiog gates,
camems, fences, motion detectols, call boxes, and rclaled equipment.
.
Mainteoance, recoating aad/or replacement of seepage monitoring piping
systems, collection facilities, weirs, and related equipment.
o Cleanup and removal ofdebris including vegetation, rock falls, aild storm
damase.
PROGRAMMATIC AGREEMENT
•
Among
THE BUREAU OF RECLAMATION, PHOENIX AREA OFFICE, THE ARIZONA STATE
HISTORIC PRESERVATION OFFICER AND SALT RIVER PROJECT
Regarding
HISTORIC PRESERVATION TREATMENT FOR THE SALT RIVER PROJECT
SYSTEM OF HISTORIC MAIN CANALS, LATERALS AND ASSOCIATED
FEATURES OPERATED AND MAINTAINED BY THE SALT RIVER PROJECT
FOR THE BUREAU OF RECLAMATION
WHEREAS, the Bureau of Reclamation (Reclamation), as the lead Federal agency, has determined that
modifications and system upgrades to the Salt River Project (SRP) system of main canals, laterals, and
associated features resulting from required operation and maintenance (0 & M) and from continued
pressures from urban development in and around the greater Phoenix, Arizona, metropolitan area will
have continued effects upon the system and associated features and facilities; and
WHEREAS, SRP operates and maintains the canal and lateral system and associated features and
facilities pursuant to the contract between the United States and the Salt River Valley Water Users
Association (SRVWUA), dated September 6, 1917, such obligations of said contract having been
assumed by SRP pursuant to a contract dated March 22, 1937, between SRP and SRVWUA, as amended,
and SRP has participated in consultation and is a signatory to this Programmatic Agreement (PA); and
WHEREAS, this Agreement is concerned solely with that portion of the SRP system that is owned by the
United States or for which the United States has obtained easements, and this system includes nine main
canals (the Arizona, South, Consolidated, Eastern, Grand, Tempe, Western, Highline, and Arizona
Crosscut), approximately 900 miles of secondary and tertiary laterals, most of which, but not all, are
owned by the United States or for which the United States has easements, and associated facilities (the
Old Cross Cut Canal, Fire Pond Pump House, Indian Bend Pump, and the San Francisco Lateral); and
WHEREAS, the Arizona Canal crosses the Salt River Pima-Maricopa Indian Community (SRPMIC), the
SRPMIC has participated in consultation and has been invited to concur in this PA; and
WHEREAS, the Arizona, South, Eastern, Grand, Tempe, Western, and Highline canals, the San
Francisco Lateral, and the Old Crosscut Canal have been determined eligible under criterion A for listing
on the National Register of Historic Places (NRHP), and
WHEREAS, under a 1.989 Memorandum of Agreement between Reclamation and the Arizona State
Historic Preservation Officer (SHPO), to which SRP and the Arizona Department of Transportation
concurred, Historic American Engineering Records (HAER) documentation was determined to be
adequate mitigation for any and all present and future adverse impacts to the Tempe, Western, and Grand
canals, the Fire Pond Pump I-louse, and the Indian Bend Pump and Old Crosscut Canal. The HAER
documentation for these properties has been completed and, in addition, SRP has completed HAER
documentation for the Highline, Arizona, and South Canals, the San Francisco Lateral, and the Eastern
Canal and is completing HAER documentation for the Consolidated and Arizona Crosscut canals; and
Page 1 of 7
WHEREAS, SRI) has identified piped laterals in downtown Glendale and the Little Maricopa Ditch
(T2N, R3E, Centerline of Sections 31, 32, 33 and 34 along Oak Street) in Phoenix, AZ as the first two
laterals to be piped in the Salt River Valley. If either of these two piped laterals is to be replaced in the
future they will be reviewed for National Register eligibility. The rest of the piped laterals are not
considered eligible; and
WHEREAS, the following mitigation measures as identified in the 2001 Programmatic Agreement
Among the Bureau of Reclamation, Phoenix Area Office, the Advisory Council On Historic Preservation,
the Arizona State Historic Preservation Office, and Salt River Project, Regarding Historic Preservation
7}eatment
the Salt River Project System of Hisioric Main Canals, Laterals, and Associated Features
Operated and Maintained by the Salt River Project for the Bureau of. Reclamation (2001 PA) have been
completed:
A.
.
A.lateral canal context study was.completed by Salt River Project historian and archivist
Shelly Dudley entitled: A Historical Study of /he SRI' Distribution System.
B.
Reclamation funded a PhD dissertation entitled: Mixing Water and Culture: Making the
Canal Landscape in Phoenix by Alfred Simon and accepted by the SHP() as a context
study for the main canals.
C.
Both documents were distributed to 24 historical museums, libraries, Federal and state
agencies and city historic preservation offices.
D.
An inventory of all 123 miles of the remaining SRP open lateral canals was completed by
the Bureau of Reclamation and reported in: Open Lateral Canal Inventory, Sall River
Project, Maricopa County, Arizona (Report BOR-PXAO, ICRS-2012-21). This report
detailed the survey and 27 miles of lateral canals identified for preservation.
E.
Twenty-Four interpretive signs were designed, manufactured and installed along SRP
canals throughout the Phoenix metropolitan area.
F.
Interpretive programs on the SRP system have been developed and presented at Arizona
Archaeology Expos, archaeology and history conferences, the Arizona Centennial, and a
website was developed explaining Reclamation and SRP history; programs are planned
to continue.
(3.
Reclamation consulted with various valley cities on the history of canals and laterals in
their communities and preservation of those features. Reclamation will continue to
discuss and solicit information from Valley cities regarding interpretive programs and
preservation concerns; programs are planned to continue.
H.
HAER documentation for all SRP main canals has been completed except for the Arizona
Crosscut and Consolidated canals, These will be completed by SRP in the near future.
1.
Reclamation has surveyed and identified archaeological sites and historic properties,
including standing structures along the main canal right-of-ways.
Page 2 of 7
WHEREAS, . the...SHP.O.has..c.oncurre.d..with Reclamation that the..HAER.do.cumentation.and.completed
stipulations under the 2001 PA constitutes adequate mitigation for present and future adverse effects to
the subject properties; and
WHEREAS, the Advisory Council for Historic Preservation (Council), an original signatory, has
declined to participate in the revision of this PA; and
NOW, THEREFORE, Reclamation, the SHPO, and SRP agree that the measures listed above are
adequate mitigation for the main and lateral canals except as specifically identified below.
STIPULATIONS
I.
Education and Preservation Program:
A...
Reclamation and SRP will seek opportunities to develop educational materials that explain and
illustrate the history and significance of the canal system. Costs for public education will be
shared equally by Reclamation and SRP with educational components designed and produced in
consultation with each other. Educational materials may include signage on the main canals,
educational materials for schools, exhibits, brochures and museum partnerships.
B.
Reclamation and SRP will continue to protect preserved laterals that have been determined
worthy of preservation as identified in the lateral inventory report (BOR-PXA0-1CRS-2012-21).
Lateral Canal Survey and Consultation Process:
A.
If an undertaking is planned that may affect an SRP-operated lateral within a local, state, or
nationally designated historic district, SRP shall notify Reclamation as soon as possible.
Reclamation, in consultation with SRP, the SHP°, the involved municipality, and the interested
public, shall comply with 36 CPR Part 800.
B.
If an undertaking is planned that may affect a lateral not identified for preservation or within a
designated historic district, Reclamation will survey that lateral for historic properties and carry
out the following:
When no historic properties are found as a result of Class III cultural resources survey of
an undertaking's area of potential effects, Reclamation shall provide written
documentation of the survey results and its finding that no historic properties are affected
and proceed with the undertaking. Findings will be submitted to the SHP() in an annual
report no later than Jan 15 th of the following year as identified in Stipulation VI. For
undertakings on lands within the boundaries of the SRPMIC, Reclamation shall also
consult with the SRPM1C.
2.
Occasionally, as a result of previous consultation between the SHP° and Reclamation,
historic properties within an undertaking's area of potential effect have been determined
to be eligible for the NRHP. If such eligible properties will be avoided by project
activities, Reclamation shall provide documentation of the survey and avoidance
measures to the SHP° as a part of the annual report. For undertakings within the
boundaries of the SRPMIC, Reclamation shall also consult with the SRPMIC.
Page 3 of 7
3.
Avoidance of direct and indirect effects on historic properties will ordinarily be
understood to require retention of such properties in place and their protection against
intentional and inadvertent damage resulting directly or indirectly from the undertaking.
4.
When historic properties may be adversely affected where Federal authority exists,
Reclamation will consult with the SIIPO, SRPMIC, Native American Tribes, and other
consulting parties pursuant to 36 CFR 800.
5.
Reclamation will continue to consult with interested Native American Tribes
C.
For undertakings affecting laterals not identified in the list prepared jointly by Reclamation and
SRP as outlined in Reclamation report130R-PXA0-20 12-2 I , Reclamation need only consult
regarding historic properties and canal or lateral contributions to designated historic districts.
When circumstances may force the piping of a preserved lateral, the following procedures will be
implemented:
. All proposals to pipe a preserved lateral begin with project design features to maintain those
ditches open and in place. Proposed alternatives will be discussed with the SHPO. If the ditch
still cannot be left open, the following steps will be completed:
A. Reclamation completes a cultural resources survey for the area of potential effect.
13. An initial report is submitted to the SHP0 for review and consultation.
C. Public meetings are held with affected neighborhoods, communities and interested citizens.
D. Mitigation measures are developed in discussion with the SHP0 and the community.
E. The project proponent incurs all costs for survey, public meetings and mitigation as well as
any SRP and Reclamation administrative costs.
Main Canal Consultation Process:
A.
Areas within the SRP system have received local, state, or national designations as historic
districts; other areas may receive this designation in the future, These historic districts may
include areas around SRI) main canals. If an undertaking is planned that may adversely affect an
SRP main canal within a local, state, or nationally designated historic district, Reclamation will
follow the same review process as for laterals outlined under Stipulation II. D.
13.
Reclamation will continue to consult regarding undertakings affecting historic properties
identified on the main canals in accordance with 36 CFR Part 800.
IV.
Consultation with MIMIC and Indian Tribes
Reclamation shall consult with SRPMIC for all undertakings on lands within the boundaries of
the SRPMIC. In addition, for undertakings affecting historic properties of importance to Native
American Tribes, Reclamation shall consult with those Tribes that may attach religious and
cultural significance to such properties.
V.
Post-Review Discoveries of Historic Properties
Page 4 of 7
Should..Reolamation..discover..an.unexpected..cultural resource.after.completion..ofthe.review
process outlined in this PA for which no discovery plan is in place, Reclamation will consult with
the SHP() and affected Tribes to determine eligibility and a treatment plan for the cultural
resource. If Reclamation and the SHP0 are unable to agree on a treatment plan for the discovered
historic property, Reclamation shall consult with the Council pursuant to 36 CFR 800.6(b) (2).
For historic properties discovered within the boundaries of the SRPMIC, Reclamation also will
consult with the SRPMIC.
VI.
Annual Reports
Reclamation shall provide an annual report to the SHPO. This document will list all reports from
the past year when a No Historic Properties Affected determination was made. The report will
include project locations, project numbers, a listing of Register ineligible and eligible sites that
were encountered and other supplementary information such as annual accomplishments and
issues or concerns.
VII.
Amendments to the PA
Any Signatory to this PA may request that it be amended, whereupon the parties will consult in
accordance with 36 CFR 800.14(b) to consider such amendment.
VIII.
Dispute Resolution
A.
Should any Signatory to this PA object in writing to Reclamation regarding the manner in which
the terms of this PA are carried out, or to any documentation or plan prepared in accordance with
and subject to this Agreement, Reclamation shall consult with the objecting party to address the
objection. If resolution is not reached, Reclamation shaft forward documentation relevant to the
objection to the Council, including Reclamation's proposed response to the objection. Within 30
days after receipt of all pertinent documentation, the Council may exercise one of the following
options:
I.
Concur with Reclamation's proposed response to the objection, whereupon Reclamation
may proceed with its action in accordance with the agreed-upon response; or
2.
Provide Reclamation with recommendations, which Reclamation shall take into account
in reaching a final decision regarding its response to the objection. Upon reaching its
final decision, Reclamation will notify the objecting party and the Council of its final
decision and proceed with its action; or
3.
Notify Reclamation that the objection will be referred for comment pursuant to 36 CFR
Sec. 800.7(a) (4). Thereafter, the Council shall comment and Reclamation shall respond
in accordance with 36 CFR Sec. 800.7(c).
B.
Should the Council not exercise one of the foregoing options within 30 days of receipt of all
pertinent documentation, Reclamation may assume that the Council concurs with its proposed
response to the objection, advise the objecting party of that response, and proceed with its action
in a manner consistent with that response.
Page 5 of 7
C.
At any time during the implementation of this Agreement, should an objection be raised hy_a
member of the public, Reclamation shall immediately notify the other signatories in writing of the
objection and take the objection into account. Reclamation shall render a decision regarding the
objection, taking into account the views of the signatories to the Agreement.
XI.
Duration
This Agreement shall remain in effect, unless amended or terminated, ending on December 31,
2030, at which time this Agreement is null and void. Thereafter, Reclamation shall comply with
36 CFR Part 800 which may include development, execution, and implementation of another
Programmatic Agreement or similar document.
X.
Termination
Any Signatory may terminate this Agreement by providing 30 days written notice to the other
signatories provided that the parties consult during that period to seek agreement on amendments
or other actions that would avoid termination.
XI.
Failure to Carry Out Terms of the Agreement
In the event that the terms of this Agreement are not carried out, Reclamation shall comply with
36 CFR Part 800 with regard to individual actions covered by this Agreement or with another
applicable Programmatic Agreement.
U.S. DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION
By:
A/.
Date:
Randy Chal4dIer, Phoenix Area Officer, Area Manager
SALT RIVER PROJECT
By:
ohn Sullivan, Associate General Manager and Chief =1L+Ily
ttource
i
Date: •
4anagement
ARIZONA STATE HISTORIC PRESERVATION OFFICER
By:
3-4414e4 61a14I7n4N
James Garrison
Arizona State Historic Preservation Officer
CONCUR:
Date: j V4M
SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY
Page 6 of 7
Date.
Diane Enos, President
Page 7 of 7
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona
Attachment 2: Acronyms, Abbreviations and Definitions
A. Acronyms and Abbreviations
AAA
Arizona Antiquities Act
ACHP
Advisory Council on Historic Preservation
ADA
Americans with Disability Act
ADOT
Arizona Department of Transportation
ADOT HPT
ADOT Historic Preservation Team (cultural resources staff)
AGFD
Arizona Game & Fish Department
Agreement
Programmatic Agreement (with reference to this Programmatic
Agreement)
APE
Area of Potential Effects
ARPA
Archaeological Resources Protection Act
ARS
Arizona Revised Statues
ASLD
Arizona State Land Department
ASM
Arizona State Museum
ASPT
Arizona State Parks & Trails
BIA WRO
Bureau of Indian Affairs, Western Regional Office
BLM
Bureau of Land Management
CE
Categorical Exclusion
CFR
Code of Federal Regulations
CLG
Certified Local Government
CRP
Cultural Resources Professional
EP
ADOT Environmental Planning
FHWA
Federal Highway Administration
HABS
Historic American Building Survey
HAER
Historic American Engineering Record
HPTP
Historic Properties Treatment Plan
IO
Isolated Occurrence
LPA
Local Public Agency
MOA
Memorandum of Agreement
MOU
Memorandum of Understanding
NAE-SC
No Adverse Effect with Standard Conditions
NAGPRA
Native American Graves Protection and Repatriation Act
National Register National Register of Historic Places
NEPA
National Environmental Policy Act
NHPA
National Historic Preservation Act
NPS
National Park Service
PA
Programmatic Agreement (with reference to Programmatic Agreements
other than this Agreement)
POA
Plan of Action
Program
Federal-aid Highway Program
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Reclamation
Bureau of Reclamation
ROW(s)
Right(s)-of-way
RTP
Recreational Trails Program
Section 106
Section 106 of the National Historic Preservation Act and its
implementing regulations at 36 CFR Part 800
SHPO
State Historic Preservation Officer
SOI
Secretary of the Interior
SRP
Salt River Project
SRP System
Salt River Project System
TCE
Temporary construction easement
TCPs
Traditional cultural properties
THPO
Tribal Historic Preservation Officer
USACE
United States Army Corps of Engineers
USC
United States Code
USFS
United States Forest Service, Southwest Regional Office
B. Definitions
1. Adverse Effect occurs when an undertaking may alter, directly or indirectly, any of the
characteristics that qualify a historic property for inclusion in the National Register of
Historic Places (National Register) in a manner that would diminish the integrity of the
property’s location, design, setting, materials, workmanship, feeling, or association (see
criteria of adverse effect at 36 Code of Federal Regulations [CFR] §800.5(a)(1)).
2. Advisory Council on Historic Preservation (ACHP) is an independent federal agency
established pursuant to section 201 of National Historic Preservation Act (NHPA). Under
Section 106 of the NHPA, the ACHP must be afforded an opportunity to comment on
federal, federally assisted, or federally-licensed undertakings that may affect historic
properties.
3. Archaeological Site generally means any material remains of past human life or activities
in history or prehistory, which are of archaeological interest including, but not be limited
to: pottery, basketry, bottles, weapons, projectiles, tools, structures or portions of
structures, pit houses, rock paintings, rock carvings, intaglios, graves, human skeletal
materials, or any portion or piece of any of the foregoing items that are of human design,
manufacture, possession, or use. Specific archaeological site definitions will follow
appropriate land-managing agency guidelines.
4. Area of Potential Effects (APE) means the geographic area(s) within which an
undertaking may cause changes in the character or use of historic properties, if any such
properties exist. The APE is influenced by the scale and nature of an undertaking and
may be different for different kinds of effects caused by the undertaking (36 CFR
§800.16(d)). The APE must include all areas of direct, indirect, and reasonably
foreseeable cumulative effects including, but not limited to, staging areas, temporary
construction easements (TCEs), access roads, utility corridors, etc.
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5. Buildings function primarily to provide shelter for human activity.
6. Concurring Parties are those interested parties who may be asked to sign an
Memorandum of Agreement (MOA) or Programmatic Agreement (PA) but do not have
the rights to amend or terminate the MOA or PA.
7. Consulting Parties have consultative roles in the Section 106 process and include the
State Historic Preservation Officer (SHPO); Tribal Historic Preservation Officer (THPO)
or THPOs; Indian tribes; land managing agencies, local governments; applicants for
federal assistance, permits, licenses or other approvals; and, any party with a
demonstrated legal or economic relation to the undertaking, or concern with the
undertaking’s effect on historic properties (36 CFR §800.2(c)). Consulting parties may be
invited to be concurring parties or signatories to a MOA or PA.
8. Cultural Resources are prehistoric and historic districts, sites, buildings, structures,
objects, cultural landscapes, sacred sites, and traditional cultural properties. Within the
broad range of cultural resources are those that have recognized significance, which are
called historic properties, as defined below.
9. Cultural Resources Inventory refers to the study of an area to identify the cultural
resources that are, or may be, present. This term is inclusive of Class I, Class II, and
Class III surveys. Class I means a literature/records overview. Class II means a sample
inventory conducted in the field at less than 100% survey coverage. Class III means an
intensive inventory conducted in the field at 100% survey coverage, as defined by SHPO
(See SHPO Survey Report Standards, or its successor document).
10. Effect on an historic property occurs when an undertaking may alter characteristics of the
property that may qualify it for inclusion in the National Register (36 CFR §800.16(i)).
11. Environmental Planner is an employee of ADOT Environmental Planning whose
responsibilities include overseeing environmental review, the development and
completion of environmental documents, and ensuring delivery of projects.
12. Historic Property is any prehistoric or historic district, site, building, structure, or object
included in, or eligible for inclusion in, the National Register. This term includes
artifacts, records, and remains that are related to and located within such properties. The
phrase "eligible for inclusion in the National Register" means properties formally
determined as such by the Secretary of the Interior or by a federal agency in consultation
with SHPO. Properties that have been determined eligible for inclusion are accorded the
same protections as properties listed in the National Register (36 CFR §800.16(l)(1)).
13. National Register of Historic Places (National Register) is the official list of districts,
sites, buildings, structures, and objects significant in American history, architecture,
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archaeology, engineering, and culture maintained by the Keeper of the National Register
on behalf of the Secretary of the Interior (36 CFR Part 60).
14. No Adverse Effect means that the undertaking will not alter any of the characteristics of
an historic property that qualify it as National Register eligible by diminishing its historic
integrity (see 36 CFR §800.5(b)).
15. No Historic Properties Affected means there are no cultural resources in the APE, there
are cultural resources in the APE but none are determined to be National Register
eligible, or there are historic properties in the APE but none will be affected by the
undertaking.
16. Previously Disturbed refers to areas where previous construction, or other activities by
human or natural agents, has physically altered soils within the three-dimensional APE to
the point where there is no potential for an archaeologically significant property to
remain, as determined by an ADOT HPT. These areas include, but are not limited to, the
entire roadway prism, as defined in this Attachment, and depicted in Figure 1 below.
17. Project Manager refers to an ADOT employee who has the responsibility for ensuring
that all project development steps are followed, and for leading and coordinating work
efforts as required for the successful completion of all work tasks to meet the project
objectives. The project manager has responsibility for the project scope, schedule and
budget, and for monitoring project on project activities.
18. Right-of-way (ROW) is the land utilized by a DOT or LPA for the purposes of
transportation, which contains the traveled portion of a roadway and associated facilities,
such as road shoulders, turnouts, medians, and rest areas, as well as the adjacent land
required for routine maintenance of the roadway and associated facilities. A road ROW
may be owned by the DOT or LPA, or it may be an easement that is granted by another
landowner to the DOT or LPA for the operation and maintenance of the roadway. DOT
ROW boundaries are typically demarcated by a fence that is maintained by the DOT.
Portions of the ROW between the roadway prism and the fence may not be previously
disturbed as defined in this Attachment.
19. Roadbed is the graded portion of a highway within top and side slopes, prepared as a
foundation for the pavement structure and shoulders, as depicted in Figure 1.
20. Roadway Prism means the three-dimensional area of a roadway from the top of slope to
the toe of slope that has been previously disturbed by roadway construction and as
depicted in Figure 1. This also includes bridges, drainage culverts, walls, ditches, road
surfaces, road shoulders, and road fills.
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21. Shoulder is the paved or unpaved portion of the roadway contiguous with the travel lanes
for accommodation of stopped vehicles, for emergency use and for lateral support of base
and surface courses, as depicted in Figure 1.
22. Signatories or Signatory are parties who assume obligations under an MOA or PA.
Signatories have the ability to terminate or agree to amend an MOA or PA. The term
includes invited signatories, but does not include others who sign the MOA or PA as
concurring parties.
23. Signatory Tribe means any land holding Tribe of Arizona that has signed this
Agreement as a full signatory, including Tribes with a National Park Service certified
Tribal Historic Preservation Officer (see below) and those not currently certified.
24. Significance is the term used to indicate a cultural resource's eligibility for the National
Register according to the criteria in 36 CFR §60.4.
25. State Historic Preservation Officer (SHPO) is the official appointed or designated by the
Governor pursuant to Section 101(b)(1) of NHPA to administer the State historic
preservation program (36 CFR §800.16(v)).
26. Structures are not designed principally to shelter human activity but to perform other
necessary functions (e.g., bridges, dams, canals, roads, railroads).
27. Subgrade is the roadbed materials beneath the pavement structure.
28. Tribal Lands means all lands within the exterior boundaries of any Indian reservation and
all dependent Indian communities (36 CFR § 800.16(x)). Within the scope of this
Agreement, the NHPA definition is identical to the Native American Graves Protection
and Repatriation Act (NAGPRA) definition, 25 U.S.C. §3001(15).
29. Tribal Historic Preservation Officer (THPO) is an individual designated by an Indian
tribe to administer the tribal historic preservation program, through appointment by the
tribe's chief governing authority or as a tribal ordinance may otherwise provide (NHPA
Section 101(d)(2)(B)). On Tribal lands, a THPO, representing the Tribe, may assume the
duties of the SHPO, in whole or in part, as certified by the National Park Service (36
CFR §800.16(w)).
30. Traditional Cultural Property (TCP), as defined in National Register Bulletin 38, is a
property that is listed in, or is eligible for inclusion in the National Register because of its
association with cultural practices or beliefs of a living community that are: (1) rooted in
that community’s history; and (2) important in maintaining the continuing cultural
identity of the community (see National Park Service Bulletin 38 cited in Stipulation II).
Traditional Cultural Properties are referred to in 36 CFR Part 800 as properties of
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religious and cultural significance, which may be historic properties as defined in 36 CFR
§800.16(1)(l)).
31. Undertaking is a project, activity, or program funded in whole or in part under the direct
or indirect jurisdiction of a federal agency including: (1) those carried out by or on behalf
of the agency; (2) those carried out with federal financial assistance; (3) and, those
requiring a federal permit, license, or approval (36 CFR § 800.16(y)).
Programmatic Agreement for Federal-Aid Transportation Projects in Arizona
April 2020
Figure 1: Illustration of Roadway Prism
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona
Attachment 3: Screened Undertakings Exempted from Further Review
Screened undertakings, limited to those listed in the tables below, are classes of undertakings
that, under certain conditions, will not cause effects to historic properties, and with appropriate
screening, may be determined by an ADOT Historic Preservation Team (ADOT HPT) to be
exempt from further Section 106 review under this Agreement.
A. This Attachment applies when all the general conditions listed below are met, and, any
task-specific conditions are also met. The screening process, which will be conducted by
a ADOT HPT, may include one or more of the following:
1. Literature/records review to determine potential for involvement of historic
properties.
2. Field check of project area.
3. Reviewing detailed project plans.
4. Contacting Tribes, land managing agencies, local historical societies, or other
potential consulting parties who may have information or concerns.
5. Reviewing aerial photographs, historic maps, or as-built records.
6. Reviewing right-of-way, assessment parcel, or ownership data.
B. Based on the outcome of the screening process, the ADOT HPT may determine that
individual undertakings are exempt from further review. When a Program-funded
undertaking is on Tribal or federal land, ADOT will coordinate or consult with the
appropriate Signatory Tribe or agency in accordance with Stipulations V or VI, as
applicable.
C. If the ADOT HPT determines that an undertaking is exempted from further review, the
ADOT HPT will prepare a memo to the ADOT Environmental Planner (EP) for inclusion
in the project file to document completion of the Section 106 process for applicable
classes of screened undertakings and no further review will be necessary. All screened
undertakings will be summarized in a quarterly report, as required in Stipulation XVII.B.
D. If the ADOT HPT determines that the undertaking may affect historic properties,
additional Section 106 review will be required following the steps outlined in
Stipulation VIII of this Agreement.
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ROADWAYS
General Conditions
Specific Conditions
1. The undertaking is limited to the existing right-of-way.
2. The undertaking is limited to areas that have been previously
disturbed, as defined in Attachment 2; or, the undertaking is
limited to areas that have been previously inventoried to
current standards for historic properties with negative results.
3. The undertaking is not located within or adjacent to a historic
property, or a National Register of Historic Places (National
Register) listed historic district, or a National Historic
Landmark, or a traditional cultural property (TCP), except for
historic roads as described in #4 below.
4. The undertaking may be carried out on roads that are historic
properties provided that an ADOT HPT determines the
undertaking will have no effect to the property’s character
defining features.
5. The undertaking has no known public or Tribal controversy
based on historic preservation issues.
General Maintenance and Repairs
Vegetation control, including mowing, burning, cutting and spraying
of noxious weeds.
Routine roadway and roadside maintenance and repair activities
within existing interchanges, medians, and adjacent frontage roads.
Pavement Resurfacing, Restoration, and Replacement
Restore, rehabilitate, and/or resurface existing pavement
including sealcoats, chipseal, milling, grooving, patching, etc.
Does not extend beyond the
existing roadway prism.
Pavement reconstruction, resurfacing, placement of sealcoats
and chipseals, and/or crack filling.
Does not extend beyond the
existing roadway prism.
Roadway rehabilitation and reconstruction that may include
construction of turning lanes, parking lots, auxiliary lanes and
shoulder widening.
Lane Additions and Widening
Widening of existing road including minor changes in road
alignment.
Additions limited to less
than one lane width (12
feet).
Shoulders
Paving or widening existing shoulders.
Adding new shoulders.
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ROADWAYS
Intersection/Interchange Improvements
Intersection improvements including construction of turn and
auxiliary lanes, minor realignment of on/off ramps, channelization,
signage, pavement markings, etc.
Placement of fill material on the side slopes of intersection
crossroads and access for purposes of flattening these slopes to
meet safety criteria.
Roadway Safety
Removal of hazardous waste, traffic accident cleanup, objects on
the roadway.
Emergency repairs to maintain integrity of bridges and roadways.
Storm damage repairs and debris cleanup and removal.
Installation, repair, or replacement of fencing including
highway fencing, wildlife fencing, vandal fencing, etc.
Installation of or repairs to guardrails, median barriers, safety
barriers, guideposts, glare screens, etc.
Installation, removal, replacement of roadway markings such
as painted stripes, raised pavement markers, rumble strips,
sensors, traffic impact attenuators, etc.
Clear zone safety improvements including removal of rock fall and
fixed objects.
Does not include
roadside memorials.
Construction in areas of continuous slides, rock removal within
the exiting rights-of-way, installation of rock fall containment
systems.
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GEOTECHNICAL
TESTING
General Conditions
Specific Conditions
1. The undertaking may be conducted within or outside the
existing right-of-way, as needed;
2. The undertaking is not located within or adjacent to a historic
property, or a National Register listed historic district, or a
National Historic Landmark or a TCP, except for historic
roads. The exempted undertakings may be carried out on or
adjacent to roads that are historic properties provided that an
ADOT HPT determines the exempted undertaking will have no
effect to the property’s character defining features.
3. The undertaking is limited to areas that have been previously
disturbed, as defined in Attachment 2; or, the undertaking is
limited to areas that have been previously inventoried to
current standards for historic properties with negative results.
4. The undertaking has no known public or Tribal controversy
based on historic preservation issues.
Engineering tests, including seismic, geologic, hazardous
materials testing, drill samples, geotechnical boreholes that
involve drilling, boring or trenching.
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SIGNAGE, LIGHTING AND SIGNALIZATION
General
Conditions
Specific Conditions
1. The undertaking is limited to the existing right-of-way.
2. The undertaking is limited to areas that have been
previously disturbed, as defined in Attachment 2, or the
undertaking is limited to areas that have been previously
inventoried to current standards for historic properties with
negative results.
3. The undertaking has no known public or Tribal controversy
based on historic preservation issues.
4. The undertaking may be carried out on roads that are historic
properties provided that an ADOT HPT determines the
undertaking will have no effect to the property’s character
defining features.
Installation, repairs, replacement, and maintenance of highway
signs including directional, safety and operational signs, mile
marker signs, right-of-way markers, dynamic message signs,
etc.
Installation, replacement, upgrade to, or addition of lighting to
roads, highways and intersections.
Installation, repair, or replacement of traffic signalization and
control systems.
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ROADWAY MONITORING AND SURVEILLANCE
General
Conditions
Specific Conditions
1. The undertaking is limited to the existing right-of-way.
2. The undertaking is limited to areas that have been
previously disturbed, as defined in Attachment 2; or, the
undertaking is limited to areas that have been previously
inventoried to current standards for historic properties with
negative results.
3. The undertaking has no known public controversy based
on historic preservation issues.
4. The undertaking may be carried out on roads that are
historic properties provided that an ADOT HPT determines
the undertaking will have no effect to the property’s
character defining features.
Installation of highway monitoring systems including cameras,
radio systems, metering equipment, traffic loop detectors,
Intelligent Transportation Systems (ITS).
EROSION CONTROL
General
Conditions
Specific Conditions
1. The undertaking is limited to the existing right-of-way.
2. The undertaking is limited to areas that have been
previously disturbed, as defined in Attachment 2; or, the
undertaking is limited to areas that have been previously
inventoried to current standards for historic properties with
negative results.
3. The undertaking will not result in indirect effects to historic
properties in other parts of the existing road right-of-way or
areas outside of the existing road right-of-way.
4. The undertaking has no known public or Tribal controversy
based on historic preservation issues.
Erosion control measures including slide and slope corrections,
placement of rip rap, scour control measures, and emergency
erosion control measures.
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LANDSCAPING
General
Conditions
Specific Conditions
1. The undertaking is limited to the existing right-of-way.
2. The undertaking is limited to areas that have been
previously disturbed as defined in Attachment 2; or, the
undertaking is limited to areas that have been previously
inventoried to current standards for historic properties
with negative results.
3. The undertaking will not result in indirect effects to
historic properties in other parts of the existing road
right-of-way or areas outside of the existing road right-
of-way.
4. The undertaking has no known public or Tribal
controversy based on historic preservation issues.
Installation, replacement, maintenance or removal of
landscaping.
CULVERT, DITCHES, AND DRAINAGE SYSTEMS
General
Conditions
Specific Conditions
1. The undertaking is limited to the existing right-of-way.
2. The undertaking is limited to areas that have been
previously disturbed, as defined in Attachment 2; or, the
undertaking is limited to areas that have been previously
inventoried to current standards for historic properties with
negative results; or the undertaking is limited to the active
floodplain.
3. The undertaking has no known public controversy
based on historic preservation issues.
4. The undertaking may be carried out on roads that are
historic properties provided that an ADOT HPT
determines the undertaking will have no effect to the
property’s character defining features.
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Repair, rehabilitation, and replacement of minor drainage
features, including culverts, pipes, intake/outtake features,
drainage ditches and rundowns
Limited to within the
highway right-of-way
where no new ground
disturbance will occur.
Replacement to take place
in the same general
location(s) as existing. This
exemption does not apply to
Civilian Conservation
Corps or Works Project
Improving existing drainage system elements; reestablishment of
existing ditches to original width; stream stabilization and
restoration.
Limited to the active
channel. Access to the
work site to be limited to
areas that have been
previously disturbed, as
defined in Attachment 2, or
previously inventoried to
current standards for
historic properties with
negative results.
BRIDGES
General
Conditions
Specific Conditions
1. The undertaking is limited to the existing right-of-way.
2. The undertaking is limited to areas that have been previously
disturbed, as defined in Attachment 2; or, the undertaking is
limited to areas that have been previously inventoried to
current standards for historic properties with negative results;
or the undertaking is limited to the active channel and or
floodplain.
3. The undertaking has no known public controversy based
on historic preservation issues.
4. The undertakings may be carried out on roads that are
historic properties provided that an ADOT HPT
determines the undertaking will have no effect to the
property’s character defining features.
Replacement, reconstruction, rehabilitation, relocation, and
structural alterations.
Applies only to bridges
that are not National
Register eligible.
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UTILITIES
General
Conditions
Specific Conditions
1. The undertaking is limited to areas that have been previously
disturbed, as defined in Attachment 2; or, the undertaking is
limited to areas that have been previously inventoried to current
standards for historic properties with negative results.
2. The undertaking has no known public or Tribal controversy
based on historic preservation issues.
3. The undertaking may be carried out on roads that are historic
properties provided that an ADOT HPT determines the
undertaking will have no effect to the property’s character
defining features.
Potholing for utilities.
Installation, relocation, replacement, or repair of underground
utilities including conduits, fiber optic cables, pipelines, etc.
RAILROADS
General
Conditions
Specific Conditions
1. The undertaking is limited to the existing road right-of-way.
2. The undertaking will not affect any character defining
features of a larger railroad related historic property or
historic district.
3. The undertaking is limited to areas that have been previously
disturbed, as defined in Attachment 2; or, the undertaking is
limited to areas that have been previously inventoried to
current standards for historic properties with negative results.
4. The undertaking has no known public or Tribal controversy
based on historic preservation issues.
5. The undertaking may be carried out on roads that are
historic properties provided that an ADOT HPT determines
the undertaking will have no effect to the property’s
character defining features.
Installation, removal, replacement, reconstruction, or
alterations to railroad crossings including surfaces, gates,
signals, warning signs, flashing lights, etc.
Maintenance, repair and replacement of railroad tracks, rail beds,
ties, circuitry.
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MISCELLANEOUS
General
Conditions
Specific Conditions
1. The undertaking is not located within or adjacent to a
historic property, or a National Register listed historic
district, or a National Historic Landmark or a TCP, except
for historic roads. The exempted undertakings may be
carried out on or adjacent to roads that are historic properties
provided that an ADOT HPT determines the exempted
undertaking will have no effect to the property’s character
defining features.
2. The undertaking is limited to areas that have been previously
disturbed, as defined in Attachment 2; or, the undertaking is
limited to areas that have been previously inventoried to
current standards for historic properties with negative results.
3. The undertaking has no known public or Tribal
controversy based on historic preservation issues.
General
Development of construction staging and temporary use
areas for stockpiling equipment, gravels, and waste
materials.
Limited to existing ROW
Construction of wetland mitigation areas, wetlands
testing and delineation, wetlands enhancement activities.
Limited to existing ROW
Activities occurring entirely within stream channels, not
including terraces and cutbanks.
Activities that involve less than one square meter of
cumulative ground disturbance.
Limited to existing ROW
Land Acquisition and Disposal
Disposal or transfer of excess properties.
Limited to parcels that do not
contain historic properties.
Right-of-way activities such as hardship acquisition;
advanced acquisition; or acquisition of scenic or
conservation easements.
Limited to parcels that do not
contain historic properties.
Noise Barriers
Installation of noise barriers or retaining walls and
other noise reduction measures.
Limited to existing ROW
ADOT Owned Properties
Construction or improvements to existing rest areas, chain
control, park and ride lots, weigh stations, etc., where no new
right-of-way is acquired.
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Restoration, rehabilitation, reconstruction of building and
structures.
Limited to buildings and
structures that are not
National or State Register
eligible.
Construction of bus transfer structures and information
panels
Curb, gutter, and sidewalk
Installation, replacement, or repair of curbs and gutters;
sidewalk improvements.
Limited to sidewalks that are not
contributors to National or State
Register-eligible properties.
Streetscapes
Streetscape improvements including installation or removal of
benches, boulders, garbage receptacles, signage, lighting,
landscaping, and pavers.
Not within a historic property,
historic district, National Historic
Landmark, or TCP, other than the
Historic State Highway System.
Limited to existing ROW of
facility being improved.
Americans with Disabilities Act (ADA) Compliance
Installation of and improvements to ADA-compliant
features.
Not within a historic property,
historic district, National
Historic Landmark, or TCP,
other than the Historic State
Highway System.
Bicycle, Recreational, Pedestrian Trails
Construction, rehabilitation, and widening of existing
bicycle and pedestrian trails, walkways and amenities.
Transit facilities
Modernization of transit facilities within existing property
boundaries including roadway resurfacing, installation of bus
shelters, pullouts, park and ride facilities, bike racks, benches,
etc.
Not within a historic property,
historic district, National
Historic Landmark, or TCP.
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona
Attachment 4: Defining the Area of Potential Effects (APE)
In accordance with the Stipulation VIII.D.1 of this Agreement, Arizona Department of
Transportation (ADOT) will establish the Area of Potential Effects (APE) for Program-funded
undertakings. When the guidelines below are followed, specific consultation with the State
Historic Preservation Officer (SHPO), and any other consulting parties, to define the APE will
not be necessary, although ADOT may consult with SHPO when needed for particularly large
or complex undertakings, when the undertaking may be controversial in nature, or for other
circumstances. However, when a Program-funded undertaking is on Tribal, federal or state land,
ADOT will consult or coordinate with the appropriate Signatory Tribe or agency in accordance
with Stipulations V or VI, as applicable, in determining the APE. The ADOT Historic
Preservation Team (ADOT HPT) and ADOT Project Manager are jointly responsible for
defining the APE or redefining the APE.
Defining the APE
A. Defining the APE depends on an undertaking’s potential to affect historic properties.
Effects to be considered may include, but are not limited to, physical damage or
destruction of all or part of a property; physical alterations; moving or realigning a
historic property; isolating a property from its setting; visual, audible, or atmospheric
intrusions; shadow effects; vibrations; and change in access or use.
B. An APE delineates the boundaries within which it can be reasonably expected that a
proposed undertaking has the potential to affect historic properties, should any be present.
It may be the right-of-way itself or an area either larger or smaller than the right-of-way,
depending on the scope and design of the undertaking.
C. In defining the APE, ADOT will address direct, indirect, reasonably foreseeable, and
cumulative effects, when warranted. Indirect effects may extend beyond the right-of-way
to encompass visual, audible, or atmospheric intrusions; vibrations from construction
activities; reasonably foreseeable economic impacts that may adversely affect historic
properties; or change in access or use. ADOT will carefully consider defining an indirect
APE, particularly for potential audible and visual effects, taking into account proximity
and use of adjoining properties, the surrounding topography, and other aspects of a
property’s setting
D. For archaeological properties, an APE is typically established based on an undertaking’s
potential for direct effects from ground-disturbing activities. On occasion, archaeological
sites may also have qualities that could be affected indirectly. Buildings, structures,
objects, districts, and sites including traditional cultural properties (TCPs) are more likely
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to be subject to indirect, as well as direct effects. ADOT will consider these factors
in defining the appropriate APE for the undertaking.
E. In defining the APE, ADOT will consider the undertaking’s potential effects on a
historic property as a whole, including the reasonably anticipated or known boundaries
of archaeological sites.
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona
Attachment 5: No Adverse Effect with Standard Conditions
This attachment identifies conditions that when met can be used to make a finding of “No
Adverse Effect with Standard Conditions” in accordance with Stipulation VIII.F.2.a of this
Agreement. When a Program-funded undertaking is on Tribal land, or lands managed by
federal or state agencies, Arizona Department of Transportation (ADOT) will consult with the
appropriate Signatory Tribe or agency in accordance with Stipulations V or VI, as applicable,
in making a finding of No Adverse Effect with Standard Conditions. ADOT may make a
finding of “No Adverse Effect with Standard Conditions” in accordance with Stipulation
VIII.F.2.a, provided that all of the following conditions are met and have been approved by an
ADOT Historic Preservation Team (HPT).
Standard Conditions for Avoiding Archaeological Sites, Buildings, and Structures
The following standard conditions for a finding of No Adverse Effect are designed to protect
archaeological sites, as well as buildings and structures, within the area of potential effects
(APE) from the effects of project activities through avoidance. Avoidance is typically
achieved using one or more of the following measures to protect properties from direct physical
damage: fencing, flagging, or signing, and may involve monitoring, as needed.
ADOT HPT will propose specific avoidance measures and secure the necessary internal
review and commitments to ensure the avoidance measures are practicable and agreed to by
both ADOT staff responsible for design and ADOT District personnel.
ADOT HPT will work with ADOT Environmental Planners and Project Managers, and with
consultants as appropriate, to ensure that:
A. The scope and design of the undertaking are sufficiently developed and detailed to
ensure that the property will be protected from all adverse effects.
B. Adequate information is available to accurately delineate the boundary of the
archaeological site or the building or structure in relation to the anticipated project
impacts and to identify contributing features of the site. This information may be
obtained from literature review, surface survey, historical research, and/or consultation
with Tribes and land managing agencies.
C. Specific avoidance measures are developed and undergo the necessary internal review
to ensure the avoidance measures are practicable and agreed to by both ADOT staff
responsible for design and ADOT District personnel.
D. All protection measures are defined (e.g., signing, staking, fencing, monitoring
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provisions) and included in the final National Environmental Policy Act (NEPA)
document or categorical exclusion, contract provisions, construction plans, and/or
other documents as appropriate.
E. A clear chain of command is established identifying specific tasks, responsibilities and
contact information for each ADOT or LPA staff, consultant, or other party in the
chain.
Archaeological sites that can be protected by the avoidance measures may be considered
eligible for inclusion in the National Register of Historic Places (National Register) for the
purposes of the undertaking without subsurface excavation and/or surface collection.
Buildings and structures may also be considered National Register eligible for the purposes
of the undertaking without evaluation.
Standard Conditions for Undertakings within the Boundaries of
Data-Recovered Archaeological Sites
This standard condition applies to undertakings occurring within a previously data-recovered
archaeological site. To use this standard condition, the ADOT HPT will review the data
recovery report and any associated records, to ensure that:
A. The data recovery was conducted to current standards.
B. The entire portion of the site that is within the project APE has been fully data-
recovered.
C. There must written concurrence from the SHPO and any land manager or permitting
agency with a role in authorizing the undertaking, or Tribe if the archaeological site is
on Tribal land, that the data recovery was adequately completed.
D. Prior to the decision to use this standard condition, the ADOT HPT will coordinate with
the SHPO or appropriate land managing or permitting agency, or consult with a Tribe if
the archaeological site is on Tribal Land, to obtain their concurrence on the use of this
standard condition.
This standard condition cannot be used if human remains were present within the
archaeological site at the time of the data recovery. In addition, this standard condition
cannot be used if there is the potential for human remains within the archaeological site, even
if no human remains were present during the data recovery. The ADOT HPT will assess the
potential for human remains in coordination with the SHPO and appropriate land-managing
agency, and through consultation with a Tribe if the archaeological site is on Tribal land.
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona
Attachment 6: Standard Measures for Resolving Adverse Effects
Arizona Department of Transportation (ADOT) may propose and carry out standard measures
for resolving adverse effects to specific categories of historic properties in accordance with
Stipulation VIII.G.1 of this Agreement. The following standard measures will apply to
archaeological sites, or to historic buildings and structures, as presented below.
A. Standard measures for resolving adverse effects to archaeological sites through data
recovery. ADOT will ensure that a Historic Properties Treatment Plan (HPTP) is
prepared that includes, but is not limited to, the following:
1. Discussion of the National Register of Historic Places (National Register)
significance of the properties.
2. Research design and questions that are directly pertinent to those data sets that
qualify the property for inclusion in the National Register under Criterion D.
3. Results of previous research relevant to the property type.
4. Proposed data needs and proposed methods and techniques to acquire the data,
including any special studies.
5. Field methods and techniques that will cost-effectively address the property’s
structure and content in the context of the defined research questions and the
property’s stratigraphic and geomorphic context.
6. Assumptions about the number and types of features expected and a proposed
sampling strategy.
7. Site-specific maps portraying the proposed data recovery (i.e., proposed trench or
test unit placement).
8. Laboratory processing and analyses, with justification of their relevance to the
property and its research values.
9. Methods and techniques used in artifact, data, and other record management.
10. Provisions for ongoing Tribal consultation, monitoring, and coordination, if
Tribal values or concerns are known or suspected.
11. Provisions for Tribal perspectives in the preparation of research designs, data
recovery plans and reports.
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12. Qualifications of key personnel.
13. Disposition, including curation, of recovered materials and records resulting
from implementation of the data recovery plan.
14. All required permits.
15. Report preparation schedule.
16. A Monitoring and Discovery Plan including provisions and procedures for
evaluating and treating discoveries of unexpected finds during the course of the
project in accordance with Stipulation XIV of this Agreement.
17. Explicit provisions for disseminating research findings to professional peers in a
timely manner.
18. Plan for public involvement and educational or interpretive programs, focusing
particularly on the community or communities that may have interest in the results.
B. Standard measures for resolving adverse effects to historic buildings and structures through
Historic Americans Buildings Survey/Historic American Engineering Record
(HABS/HAER) documentation. Information included in the consultation proposing to
conduct HABS/HAER documentation will include, but is not limited to, the following:
1. A description of each building or structure, its National Register significance, and
its character defining features.
2. A discussion of relevant research questions and recording objectives in relation to
the type and significance of the property.
3. The proposed level of HABS/HAER documentation and a justification for
this documentation in relation to the anticipated adverse effects.
4. A description of methods to be used in collecting data needed to achieve the
research and recording objectives.
5. Qualifications of key personnel.
6. A report preparation schedule.
7. A proposal for development of a public benefit document or other appropriate
measures for public presentation.
C. Standards and Guidelines
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1. All archaeological data recovery will be conducted following:
a. Archaeology and Historic Preservation: Secretary of the Interior’s Standards and
Guidelines, September 1983, U.S. Department of the Interior, National Park
Service (48 Federal Register 44716, as updated) or its successor regulation.
b. Arizona Antiquities Act standards, for archaeological investigations on state,
county, and municipal lands in Arizona.
2. All HABS/HAER documentation will be conducted following:
a. The Secretary of the Interior's Standards for Architectural and
Engineering Documentation.
b. Secretary of the Interior’s Standards for the Treatment of Historic Properties,
July 1997, U.S. Department of the Interior, National Park Service (36 Code of
Federal Regulations Part 68) or its successor regulation.
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona
Attachment 7: Protocol for Installing or Replacing Fencing and signage
A. Arizona Department of Transportation (ADOT) shall ensure that the procedures
presented below are followed during installation or replacement of fencing and signage
within the defined limits of eligible or unevaluated archaeological sites located in the area
of potential effects (APE). The following procedures only apply to signage requiring
posthole excavation no larger than 12 inches in diameter.
1. This protocol will serve as a standard monitoring plan for the installation or
replacement of signage and fencing. The primary purpose of the monitoring is to
guide the specific placement of the signage or the fencing to minimize the potential
impacts to archaeological sites by careful and thoughtful placement of ground
disturbing activities, based on surface indications and any other available information
about the site. With the use of Attachment 7, the ADOT Historic Preservation Team
(ADOT HPT) may determine that the fencing or signage installation or replacement
will not adversely affect the archaeological site.
2. No monitor will be required for installation or replacement of fences and signs within
the boundary of sites determined not eligible for listing on the National Register of
Historic Places (NRHP).
3. No monitor will be required for installation or replacement of fences and signs within
portions of National Register eligible sites that have been mitigated by archaeological
data recovery, except for sites where human remains have previously been identified.
4. Vegetation removal must be cut with hand tools at or above ground level.
5. Every effort will be made to reuse existing holes for new posts or to place them as
close as possible to the original post placement so that disturbance to the site may be
limited.
6. No new gates, cattle guards, or other similar fence-related structures will be built
within site boundaries.
7. H-brace and corner braces will be located outside the site boundaries wherever
possible.
8. Rubber tired construction vehicles will be allowed within site boundaries in dry
conditions in areas where they will not damage the site.
B. Qualifications for Archaeological Monitors
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1. The archaeological monitor must meet the Professional Qualifications Standards in
Stipulation IV.
2. Archaeological monitoring will be conducted under appropriate state and federal
archaeological permits based on land jurisdiction.
C. Consultation Process and Project Documentation
1. Attachment 7 will serve as the monitoring and discovery plan that will be
supplemented with a project specific addendum. The project specific addendum will
be sent to SHPO and any land managing or permitting agency or Signatory Tribe with
jurisdiction for a 10 calendar day review.
2. The project specific addendum will contain the following information:
a. APE and land jurisdiction depicted on a USGS 7.5 minute topographic map.
b. Brief description of the project (fence installation, etc.), including any equipment
needed to complete the work.
c. Description of the archaeological site that is within the project APE including: a
brief historic context summary, history of recordation of the site, any
documentation on site eligibility, and whether the site has been previously
subjected to data recovery.
d. Further discussion of the archaeological site to include details regarding specific
type of site (e.g. artifact scatter, habitation site), known artifact types present (e.g.
shell, ceramics), known or suspected features and their location relative to the
undertaking, and whether there are known human remains for the site.
e. Details on the integrity of the site.
f. Map of archaeological site depicting location of the undertaking within the site,
and any features or artifact scatters present within the APE.
3. After completion of the monitoring, the monitor will provide a brief report of the
results of the monitoring. The report will detail the following:
a.
If the site(s) are located on state, county, or municipal lands in Arizona, the
format of the report will follow the rules for implementing the Arizona Antiquity
Act (ARS § 41-841 et seq.)
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b.
Site information and location of monitoring within site.
c.
Dates of monitoring.
d.
Type of activity monitored.
e.
Any new information on the site gained during monitoring (e.g., erosion or other
site integrity issues or new features noted).
f.
Photographs of the new signage or fencing within the site boundaries.
4. Site records shall be updated in AZSITE and/or other relevant databases.
D. Monitoring Procedures
1. Non-burial features
a.
When possible, the monitor shall guide the placement of signs or fence posts
away from defined features or particularly dense artifact scatters visible on the
surface.
b.
Sign or fence post installation may proceed when artifacts are present on the
surface.
c.
Given the minimal impacts anticipated from installation of signage or fencing, if
previously unrecorded non-burial features are encountered, they will not be
excavated.
i.
If new features are identified, they will be documented through mapping,
photographs, and written descriptions.
ii.
If unique or exotic artifacts are identified, they will be analyzed in the field
and documented in a monitoring report. Artifacts will not be collected.
2. Installation and removal of T-posts
a. Installation of a sign on a T-post, or installation of T-posts as fencing
components within the boundaries of an eligible or unevaluated archaeological
site will not require a monitor in cases where a recent (within three years) survey
conducted to current standards has determined that there are no surface features
within the APE for the installation of T-posts.
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b. In cases where existing survey reports do not meet the conditions listed above, a
field check by a CRP with the appropriate expertise within six months prior to
construction may be conducted to determine whether or not surface features are
present in the APE.
c. If surface features are present in the APE, a monitor will be required to guide the
placement of T-posts away from the features.
d. Removal of T-posts that were installed in non-feature contexts may take place
without a monitor present provided that the removal is done with a post-puller or
other tool that results in no additional ground disturbance. If such a tool is not
available, a monitor is required during post removal.
3. If human remains or mortuary items are identified during the installation of signage
or fencing, the monitor shall follow Stipulation XV.
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Programmatic Agreement for Federal-Aid Transportation Projects in Arizona
Attachment 8: Protocol for Recreational Trails Program Undertakings
A. Arizona Department of Transportation (ADOT) will ensure that the Section 106
requirements for Recreational Trails Program (RTP) projects are met as follows.
1. Arizona State Parks & Trails (ASP&T) receives applications for RTP grants in
January of each year. ASP&T reviews grant applications and recommends
projects for funding, beginning in April, with applications being approved and
forwarded to ADOT throughout the calendar year.
2. For those projects that are recommended for funding, ASP&T will forward the
grant packet and all environmental related documents, including any cultural
resources surveys or other cultural resources documentation relating to the
project, to ADOT for review.
3. When ADOT receives the grant packet and environmental documents, ADOT
will work with the applicant to ensure all appropriate documents are present and
sufficient. ADOT will then initiate Section 106 consultation and follow
Stipulation VIII in this Agreement, where applicable.
4. Upon completion of the Section 106 requirements, ADOT will complete the
documentation required under the National Environmental Policy Act (NEPA).
5. ADOT will assist ASP&T in drafting and/or updating their grants manual to
accurately describe the Section 106 review process for these federally funded grants
and will include a timeline from the receipt of the application to the award of the
funding.
B. ADOT, in cooperation with ASP&T, shall ensure that the requirements of this
Agreement are met prior to approving construction for any RTP project.
Programmatic Agreement for Federal-Aid Transportation Projects in Arizona
April 2020
Programmatic Agreement for Federal-Aid Transportation Projects in Arizona
Attachment 9: 326 MOU
“Memorandum of Understanding Between Federal Highway Administration, Arizona Division
and the Arizona Department of Transportation: State Assumption of Responsibility for
Categorical Exclusions” (326 MOU)
23 U.S.C. § 326 CE Assignment MOU
FHWA, Arizona Division and the Arizona Department of Transportation
MEMORANDUM OF UNDERSTANDING
between
Federal Highway Administration, Arizona
Division and the
Arizona Department of Transportation
State Assumption of Responsibility for Categorical Exclusions
THIS MEMORANDUM OF UNDERSTANDING ("MOU") made and entered into 3rd day
of January, 2018, by and between the FEDERAL HIGHWAY ADMINISTRATION,
UNITED STATES DEPARTMENT OF TRANSPORTATION ("FHWA") and the STATE of
Arizona, acting by and through its DEPARTMENT OF TRANSPORTATION ("State"),
hereby provides as follows:
W1TNESSETH:
Whereas, Section 326 of amended Chapter 3 of Title 23, United States Code (23 U.S.C. §
326) allows the Secretary of the United States Department of Transportation ("DOT
Secretary"), to assign, and a State to assume, responsibility for determining whether certain
designated activities are included within classes of action that are categorically excluded
from requirements for environmental assessments or environmental impact statements
pursuant to regulations promulgated by the Council on Environmental Quality under part
1500 of title 40, Code of Federal Regulations ("CFR") (as in effect on October 1, 2003); and
Whereas, if a State assumes such responsibility for making categorical exclusion ("CE")
determinations under the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et
seq. ("NEPA"), the DOT Secretary also may assign and the State may assume all or part of
certain Federal responsibilities for environmental review, consultation, or other related
actions required; and
Whereas, on July 7, 2015 FHWA and the State executed the Programmatic Agreement (PCE
Agreement) Regarding the Determination and Approval of Categorical Exclusion Actions for
Federal —Aid Highway Projects and intend to terminate this agreement upon the execution of
this MOU; and
Whereas, on October 24, 2017, the FHWA published a notice of the availability of the
proposed Section 326 MOU in the Federal Register and provided a thirty (30) day
opportunity for comment in the USDOT Docket Management System FHWA-2017-0044;
and
Whereas, on October 24, 2017, the State published the proposed a notice of availability of
the Section 326 MOU on its website at httpsliwww.azdot.gov/businessienvironrnental-
planning and provided a 30-day opportunity for comment; and
23 U.S.C. § 326 CE Assignment MOU
FHWA, Arizona Division and the Arizona Department of Transportation
Whereas, the State and the FHWA have considered the comments received; and
Whereas, the DOT Secretary, acting by and through FHWA, has determined that specific
designated activities are CEs and that it will assign specific responsibilities with respect to
CEs to the State in accordance with this MOU; and
Whereas, the State wishes to assume such Federal agency responsibilities in accordance
with this MOU and applicable law;
Now, therefore, FHWA and the State agree as follows:
STIPULATIONS
I. CATEGORICAL EXCLUSION RESPONSIBILITIES ASSIGNED TO THE
STATE BY FHWA
A. For the projects covered by this MOU, FHWA hereby assigns, and the State
hereby assumes, subject to the terms and conditions set forth in 23 U.S.C. § 326
and this MOU, the responsibility for determining whether a proposed Federal-
aid action is within a category of action that has been designated as a CE by the
DOT Secretary, as specified in Stipulation 1(B), and meets the definition of a
CE as provided in 40 CFR 1508.4 (as in effect on October 1, 2003) and 23 CFR
771.117. This assignment applies only to projects for which the Arizona
Department of Transportation is the direct recipient of Federal-aid highway
program funding or is the project sponsor or cosponsor for a project requiring
approval by the FHWA-Arizona Division Office. This assignment does not
apply to responsibilities carried out by other modal administrations of the US
Department of Transportation (USDOT) or the Office of the Secretary.
B. This assignment pertains only to the designated activities described in this
Stipulation I(B).
1. The assignment includes the following:
a. Activities listed in 23 CFR 771.117(c);
b. The example activities listed in 23 CFR 771.117(d); and
2. Any activities added through FHWA rulemaking to those listed in 23 CFR
771.117(c) or example activities listed in 23 CFR 771.117(d) after the date
of the execution of this MOU.
C. This MOU transfers to the State all responsibility for processing the CEs
designated in Stipulation I(B) of this MOU, including any necessary CE
approval actions. The State shall process all proposed projects that are CE
candidates (CE projects), and any required reevaluations of CEs under 23 CFR
771.129 for CE projects not completed prior to the date of this MOU, in
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23 U.S.C. § 326 CE Assignment MOU
FHWA, Arizona Division and the Arizona Department of Transportation
accordance with the provisions of this MOU. With respect to matters covered by
and subject to the terms of this MOU, this MOU supersedes any existing
programmatic agreement that is solely between the State and FHWA concerning
CEs in Stipulation I(B).
D.
The State, when acting pursuant to 23 U.S.C. § 326 and this MOU, holds
assigned authority to make environmental decisions and commitments
pertaining to only the individual proposed projects and activities within the
scope of 23 U.S.C. § 326 and this MOU. No action by the State shall bind
FHWA to future action of any kind. No determination or agreement made by
the State with respect to mitigation or other activities shall constitute a
precedent for future determinations, agreements, or actions in the Federal-aid
highway program unless FHWA consents, in writing, to such commitment.
E.
Prior to approving any CE determination the State shall ensure and document
that for any proposed project the design concept, scope, and funding are
consistent with the current State Transportation Improvement Program
(STIP), Transportation Improvement Program (TIP), and Regional
Transportation Plan (RTP) as applicable.
II. OTHER FHWA RESPONSIBILITIES ASSIGNED TO THE STATE AND
RESPONSIBILITIES RESERVED BY FHWA
A.
For projects covered by this MOU, FHWA hereby assigns, and the State hereby
assumes, the following FHWA responsibilities for environmental review,
consultation, or other related actions required under Federal laws and Executive
Orders applicable to CE projects: See Appendix A for a description of the
environmental responsibilities assigned to the State by the FHWA for proposed
projects subject to this MOU. This assignment includes the transfer to the State
of the obligation to fulfill the assigned environmental responsibilities associated
with any proposed projects meeting the criteria in Stipulation I(B) that were
determined to be CEs prior to the effective date of this MOU but the project has
not been completed. Such projects are included in the term "proposed projects"
in this MOU.
B.
The FHWA reserves any responsibility for any environmental review,
consultation, or other related action that is not expressly assigned under this
MOU, including:
1. All government-to-government consultation with Indian tribes as defined in
36 CFR 800.16(m). Notice from the State to an Indian tribe advising the
Indian tribe of a proposed activity is not considered "government-to-
government consultation" within the meaning of this MOU. If the State
adequately resolves any project-specific Indian tribe issues or concerns, then
FHWA's role in the environmental process shall be limited to carrying out
the government-to-government consultation process. FHWA, according to
the terms of this MOU, shall initiate government-to-government
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23 U.S.C. § 326 CE Assignment MOU
FHWA, Arizona Division and the Arizona Department of Transportation
consultation for an assigned project with any Indian tribe who directly
contacts FHWA (via written or oral communication) to make such a request
and identifies one or more highway projects in that request. If FHWA
determines through consultation with an Indian tribe, or an Indian tribe
indicates to FHWA, that the proposed resolution of tribal issues or concerns
by the State is not adequate, then Stipulation III(C) applies. This MOU is
not intended to abrogate, or prevent future entry into, any written agreement
among the State, FHWA, and an Indian tribe under which the tribe agrees to
permit the State to administer government-to-government consultation
activities for FHWA. However, such agreements are administrative in
nature and do not relieve FHWA of its legal responsibility for government-
to-government consultation.
2. Review and approval of individual section 4(f) evaluations until such time
ADOT staff complete Section 4(f) and legal sufficiency training. When such
training has been completed, FHWA shall notify ADOT that the
responsibility for review and approval of individual Section 4(f) evaluations
is assigned. This modification shall not be deemed an amendment under
Stipulation VIII.
C. The State and FHWA will develop and document procedures for carrying out
FHWA responsibilities retained by FHWA under Stipulation II(B), including
how any FHWA decisions will be communicated to the State for inclusion in
the State's decision-making under Stipulations I and 1I(A). The procedures
will ensure that:
I. The State provides to FHWA any inffinnation necessary in order for FHWA
to carry out its consultation, evaluation, or decision-making for Stipulation
II(B) activities;
2. The FHWA provides the State with a documented decision and any related
information used for Stipulation II(B) decisions and needed by the State in
order for the State to evaluate the project and make its decision whether the
project qualifies as a CE; and
3. As part of any request for FHWA authorization for funding or other
action, the State will provide to FHWA evidence that the CE processing
and any other environmental responsibilities assigned under this
agreement have been completed in accordance with this MOU. This
evidence demonstrates that (1) all NEPA review and compliance
requirements have been met, (2) that the CE determination remains valid,
and (3) that the scope of work of the project has not changed and that the
project incorporates all environmental commitments, 23 CFR 771.109(d).
D. The State agrees that its execution of environmental review, reevaluation,
consultation, and other related responsibilities for CEs assigned under this MOU
are subject to the same existing and future procedural and substantive
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23 U.S.C. § 326 CE Assignment MOU
FHWA, Arizona Division and the Arizona Department of Transportation
requirements as if those responsibilities were carried out by FHWA. This
includes, but is not limited to the responsibilities of FHWA under interagency
agreements such as programmatic agreements, memoranda of understanding,
memoranda of agreement, and other similar documents that relate to the
environmental review process for CE projects. If such interagency agreements
are between the State and FHWA only, then the assignment occurs
automatically upon the signing of this MOU for projects covered by this MOU.
If the interagency agreement involves signatories other than FHWA and the
State, then, within six months after the effective date of this MOU, FHWA and
the State will work to obtain any necessary consents or amendments (see
Appendix B). Such actions include:
I. Consulting with the other parties to obtain written consent to the
continuation of the interagency agreement in its existing form, but with the
substitution through assignment of the State for FHWA with respect to
interagency agreement provisions applicable to CE projects;
2. Negotiating with the other parties to amend the interagency agreement as
needed so that the interagency agreement continues but that the State
assumes FHWA's responsibilities with respect to CE projects.
3. If a third party does not agree to the assignment or amendment of the
interagency agreement, then to the extent permitted by applicable law and
regulation, the State must carry out the assigned environmental review,
consultation, or other related activity in accordance with applicable laws and
regulations but without the benefit of the provisions of the interagency
agreement.
E. The State shall carry out the assigned consultation, review and coordination
activities in a timely and proactive manner. The State shall make all reasonable
and good faith efforts to identify and resolve conflicts with Federal agencies,
State and local agencies, Indian tribes as defined in 36 CFR 800.16(m), and the
public during the consultation and review process.
III. ACTIONS, CONDITIONS, OR DETERMINATIONS THAT EXCLUDE
DESIGNATED ACTIVITIES FROM ASSIGNMENT OF
RESPONSIBILITIES
A.
Notwithstanding any other provision of this MOU, any activity that does not
satisfy the criteria for the CE categories described in Stipulation I(B) is
excluded from this assignment. Exclusion also may occur at any time during the
environmental process if the State determines that the project fails to meet the
CE criteria. The provisions of Stipulation IV(C) apply to such cases. These
determinations are subject to FHWA review.
B.
Because the State assumes responsibility for environmental processing of the
CEs designated in this MOU, FHWA no longer will be responsible for
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23 U.S.C. § 326 CE Assignment MOU
FHWA, Arizona Division and the Arizona Department of Transportation
conducting the environmental review, consultation or other related actions
assigned under this MOU (see Stipulation XI). However, in furtherance of its
stewardship and oversight responsibilities, FHWA will evaluate the State's
environmental processing of any project if FHWA has any reason to believe that
the State's performance with respect to the project does not satisfy the terms and
conditions of this MOU. The scope of the evaluation will be commensurate with
the potential problem. If FHWA subsequently determines that the State's
performance does not satisfy the terms and conditions of this MOU, then
FHWA will take action to resolve the problem. Such action may include action
to facilitate the State's compliance with the MOU, or action to exclude the
project from assignment under this MOU. The provisions of Stipulation X(A)-
X(E) apply to such FHWA-initiated exclusion.
C.
If a project-related concern or issue is raised in the coordination of project
review with an Indian tribe, as defined in 36 CFR 800.16(m), and either the
Indian tribe or FHWA determines that the issue or concern will not be
satisfactorily resolved by the State, then FHWA may reassume responsibility
for processing the project or an individual responsibility assumed by the State.
The FHWA shall notify the State that the project will be excluded from this
MOU. The provisions of Stipulation X(A)-X(E) apply to such FHWA-initiated
exclusion.
IV. STATE PERFORMANCE REQUIREMENTS
A. Compliance with governing laws, regulations and MOU. The State shall make
all determinations under this MOU in accordance with 23 CFR 771.117(a) and
(b) and succeeding regulations. All actions by the State in carrying out its
responsibilities under this MOU shall comply with, and be consistent with,
the coordination provisions of Stipulation H and all applicable Federal laws,
regulations, Executive Orders, policies, and formal guidance. The State also
shall comply with State and local laws to the extent applicable.
I Failure to meet the requirements of Stipulation IV(A) is grounds for a
decision by FHWA to terminate this MOU pursuant to Stipulation 1X(A) if
FHWA determines, after good-faith consultation with the State, that there is
an irreconcilable material conflict between a provision of State law,
regulation, policy, or guidance and applicable Federal law, regulation,
policy, or guidance, and FHWA reasonably determines that such conflict is
preventing the State from meeting its Stipulation IV(A) obligations. The
grounds for such decision may include, but are not limited to, the mere
existence of the conflict (i.e., on its face) and/or the effect of the conflict on
the State's decision(s) on proposed CE project(s) (i.e., as applied).
2. Official DOT and FHWA formal guidance and policies relating to
environmental review matters are posted online at FHWA's website or sent
to the State electronically or in hard copy.
3. After the effective date of this MOU, the FHWA will use its best efforts to
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23 U.S.C. § 326 CE Assignment MOU
FHWA, Arizona Division and the Arizona Department of Transportation
ensure that any new or revised FHWA policies and guidance that are final
and applicable to the State's performance under this MOU are
communicated to the State within ten (10) calendar days of issuance.
Delivery may be accomplished by e-mail, mail, by publication in the
Federal Register, or by means of a publicly available online posting
including at the sites noted above. If communicated to the State by e-mail
or mail, such material may be sent either to the party specified in this MOU
to receive notices, or to the Arizona Department of Transportation
Environmental Planning Administrator.
4. In the event that a new or revised FHWA policy or guidance is not made
available to the State as described in the preceding paragraph, and if the
State had no actual knowledge of such policy or guidance, then a failure by
the State to comply with such Federal policy or guidance will not be a basis
for termination under this MOU.
5. The State will work with all other appropriate Federal agencies concerning
the laws, guidance, and policies relating to any Federal laws that such other
agencies administer.
6. In order to minimize the likelihood of a conflict as described in Stipulation
IV(A)(1) above, after the effective date of this MOU the State will use its
best efforts to ensure that any proposed new or revised State laws,
regulations, policies, or guidance that are applicable to the State's
performance under this MOU are communicated to FHWA for review and
comment before they become final. Delivery may be accomplished by e-
mail, mail, or personal delivery. If communicated to FHWA by e-mail or
mail, such material may be sent to the party specified in this MOU to receive
notices for FHWA.
B. Processing projects assigned under the MOU: State identification,
documentation, and review of effects. For projects and other activities assigned
under Stipulations I(A)-(B) that the State determines are included in the classes
of CE assigned to the State under this MOU, the State shall:
I. Institute and maintain the process to identify and review the
environmental effects of the proposed project.
Carry out the other environmental responsibilities that are assigned under
this MOU, as necessary or appropriate for the activity;
3. Document in the project file the CE findings and completion of all
applicable FHWA responsibilities assigned under Stipulations 1 and II;
4. For CE's other than those designated in 23 CFR 771.117(c), carry out a
review of proposed CE determinations, including consideration of the
environmental analysis and project file documentation, prior to the States'
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23 U.S.C. § 326 CE Assignment MOU
FHWA, Arizona Division and the Arizona Department of Transportation
approval of the CE determination. The process shall include, at a minimum,
review of the documentation and proposed determination by a competent
reviewer who is not a preparer of the CE documentation.
5. Document its approval of the determination using, at a minimum, the printed
name, title, and date of the State official approving the determination;
6. Include the following determination statement when documenting the CE
findings:
"The State has determined that this project has no significant impact(s) on
the environment and that there are no unusual circumstances as described in
23 CFR 771.117(b). As such, the project is categorically excluded from the
requirements to prepare an environmental assessment or environmental
impact statement under NEPA. The State has been assigned, and hereby
certifies that it has carried out, the responsibility to make this determination
pursuant to 23 U.S.C. § 326 and a Memorandum of Understanding dated
January 3, 2018, executed between FHWA and the State."
7. Document in the project file the specific categorically excluded activity, the
CE finding, including the determination that the project has no significant
impact(s) on the environment, there are no unusual circumstances (23 CFR
771.117(b)), and completion of all applicable FHWA responsibilities
assigned under Stipulations I and II.
C. Excluded projects and CE activities not assigned: determination and
documentation. For projects that are candidates for CE classification but
that the State determines should be excluded from processing under this
assignment, the State shall:
1. Document the exclusion findings in the project file, including the reason for
the finding;
2. Notify FHWA; and
3. Work with the FHWA, now as the responsible party under NEPA, and
proceed with review and documentation of the project under the appropriate
NEPA procedures.
D. Required State resources, qualifications, expertise, standards, and training. The
State must maintain adequate organizational and staff capability and expertise to
effectively carry out the responsibilities assigned to it under this MOU. This
includes, without limitation:
I. Using appropriate technical and managerial expertise to perform the
functions required under this MOU and applicable laws, regulations,
23 U.S.C. § 326 CE Assignment MOU
FHWA, Arizona Division and the Arizona Department of Transportation
policy, and guidance;
a. Devoting adequate financial and staff resources to carry out the
responsibilities assumed by the State; and
b. Demonstrating, in a consistent manner, the capacity to perform
the State's responsibilities under the MOU and applicable
Federal law.
?. The State agrees that it shall maintain on its staff or through consultant
services all of the environmental and other technical expertise needed to
carry out its responsibilities under this MOU and 23 U.S.C. § 326. Without
limiting the foregoing, when carrying out the requirements of Section 106 of
the National Historic Preservation Act, as amended, the State shall comply
with 36 CFR 800.2(a)(1). All actions that involve the identification,
evaluation, analysis, recording, treatment, monitoring, or disposition of
historic properties, or that involve the reporting or documentation of such
actions in the form of reports, forms, or other records, shall be carried out by
or under the direct supervision of a person or persons who meet the Secretary
of the Interior's Professional Qualifications Standards (published at 48 FR
44738-44739). The State shall ensure that all documentation required under
36 CFR 800.11 is reviewed and approved by a staff member or consultant
who meets the Professional Qualifications Standards.
E.
State quality control.
I. The State agrees to carry out regular quality control activities to ensure that
its CE determinations are made in accordance with applicable law and this
MOU.
2. At a minimum, the State shall monitor its processes relating to project
determinations, environmental analysis, and project file documentation,
and check for errors and omissions. The State shall take corrective
action as needed. The State shall document its quality control activities
and any needed corrective actions taken.
3. If the State implements training to meet the capability requirements of this
MOU or as a corrective action, the State shall be responsible for the training.
The State shall provide notice of formal training to FHWA.
F. MOU performance monitoring and quality assurance. The FHWA and the State
shall cooperate in monitoring performance under this MOU and each party shall
modify its practices as needed to assure quality performance by the State and
FHWA. Monitoring will include consideration of the technical competency and
organizational capacity of the State, as well as the State's performance of its CE
processing functions. Performance considerations will include, without
limitation, the quality and consistency of the State's project determinations,
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23 U.S.C. § 326 CE Assignment MOU
FHWA, Arizona Division and the Arizona Department of Transportation
adequacy and capability of the resources applied by the State, and the quality
and consistency of the State's administration of its responsibilities under this
MOU. In support of the monitoring efforts:
I. The State shall submit to FHWA a list of the CE determinations and Section
4(f) determinations that the State approved during the previous 6 months
(January I through June 30, and July 1 through December 31), within 15
business days after the end of each semi-annual reporting period. Reduction
in reporting frequency, and any revocation of such reduction by FHWA,
shall not be deemed an amendment under Stipulation VIII.
2. State shall submit to the FHWA (via electronic copy) a self-assessment
report summarizing its performance under this MOU at least 30 days prior
to a scheduled monitoring review by FHWA. The report will identify any
areas where improvement is needed and what measures the State is taking to
implement those improvements. The report will include actions taken by the
State as part of its quality control efforts under stipulation IV(E). Following
submission of the report to the FHWA (electronic or in hard copy). The
State shall schedule a follow-up meeting with FHWA at which the parties
will discuss the report, the State's performance of this MOU, and the
FHWA's monitoring activities.
3. The State shall maintain electronic project records and general administrative
records pertaining to its MOU responsibilities and the projects processed
hereunder. The records shall be available for inspection by the FHWA at any
time during normal business hours. The State shall provide the FHWA with
electronic copies of any documents the FHWA may request within five
business days. The State shall retain those records, including all letters and
comments received from governmental agencies, the public, and others about
the performance of activities assigned under this MOU, for a period of no
less than three (3) years after completion of project construction. This 3-year
retention provision does not relieve the State of its project or program
recordkeeping responsibilities under 2 CFR 200.300 or any other applicable
laws, regulations, or policies.
4. The State shall ensure that project records are available to the public
consistent with requirements applicable to Federal agencies under 5 U.S.C.
§ 552 (the Freedom of Information Act (FOIA), as amended in 2002) and
NEPA.
5. The FHWA periodically shall review the State's records and may interview
State staff to evaluate the State's performance under this MOU. FHWA shall
conduct one review within 6 months of the execution of this agreement, and
may be coordinated with the review of the State's report under Stipulation
IV(F)(2). The FHWA anticipates that under normal circumstances, its
evaluation of the State's performance will be based on a modified version of a
typical FHWA CE process review (to view FHWA guidance on how
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23 U.S.C. § 326 CE Assignment MOU
FHWA, Arizona Division and the Arizona Department of Transportation
monitoring should occur visit
http://www.thwa.dot.gov/hep/6004stateassumpt.htm) . Modifications to the
CE process review will include incorporation of measures specific to the
responsibilities assigned to the State pursuant to 23 U.S.C. §326, and will
include performance measurements of compliance and timeliness. However,
the FHWA reserves the right to determine in its sole discretion the frequency,
scope, and procedures used for monitoring activities. The State, by its
execution of this MOU acknowledges that it is familiar with the FHWA CE
Process Review procedures and with the expected modifications that will be
adopted for the purpose of monitoring the State's MOU performance.
6. Nothing in this Stipulation shall prevent FHWA from undertaking other
monitoring actions, including audits, with respect to the State's performance
of the MOU. The FHWA, in its sole discretion, may require the State to
perform such other quality assurance activities, including other types of
monitoring, as may be reasonably required to ensure compliance with this
MOU, 23 U.S.C. § 326, and other applicable Federal laws and regulations.
Such requirement shall not be deemed an amendment under Stipulation
VIII.
7. The State agrees to cooperate with FHWA in all quality assurance activities.
G.
State liability. The State agrees that it is solely responsible and solely liable for
complying with and carrying out this MOU, for the performance of all assigned
responsibilities as provided by applicable law and for any decisions, actions, or
approvals by the State, per 23 U.S.C. § 326(b)(2). The FHWA shall have no
responsibility or liability for the performance of responsibilities assigned to the
State, including without limitation any decision or approval made by the State.
Where the State exercises any assigned authority on a proposed project which
FHWA determined to be a CE prior to the execution of this MOU, the State
assumes sole environmental review responsibility and liability for any
subsequent substantive environmental review action it takes on that project.
H.
Litigation.
1. Nothing in this MOU affects the United States Department of Justice's
(hereinafter "USDOJ") authority to litigate claims, including the authority to
approve a settlement on behalf of the United States if either FHWA or
another agency of the United States is named in such litigation, or if the
United States intervenes. In the event FHWA or any other Federal agency is
named in litigation related to matters under this MOU, or the United States
intervenes in the litigation, the State agrees to coordinate with FHWA and
any USDOJ or Federal agency attorneys in the defense of that action.
1. The State shall defend all claims brought against the State in connection with
its discharge of any responsibility assumed under this MOU. In the event of
litigation, the State shall provide qualified and competent legal counsel,
including outside counsel if necessary. The State shall provide the defense at
23 U.S.C. § 326 CE Assignment MOU
FHWA, Arizona Division and the Arizona Department of Transportation
its own expense, subject to 23 U.S.C. 326(f) concerning Federal-aid
participation in attorney's fees for outside counsel hired by the State. The
State shall be responsible for opposing party's attorney's fees and court costs
if a court awards those costs to an opposing party, or in the event those costs
are part of a settlement agreement.
3. The State will notify the FHWA's Arizona Division Office and USDOrs
Assistant Attorney General for the Environment and Natural Resources
Division, within seven (7) calendar days of the State's Legal Division's
receipt of service of process of any complaint, concerning discharge of any
responsibility assumed under this MOU. The State's notification to the
FHWA and USDOJ shall be made prior to its response to the complaint. In
addition, the State shall notify FHWA's Arizona Division Office within
seven (7) calendar days of receipt of any notice of intent to sue concerning its
discharge of any responsibility assumed under this MOU.
4. The State will provide FHWA's Arizona Division Office and USDOJ copies
of any motions, pleadings briefs, or other such documents filed in any case
concerning its discharge of any responsibility assumed under this MOU. The
State will provide such copies to the FHWA and Dal within seven (7)
calendar days of service of any document, or in the case of any documents
filed by or on behalf of the State, within seven (7) calendar days of the date
of filing.
5. The State will notify the FHWA's Arizona Division Office and USDOJ prior
to settling any lawsuit, in whole or in part, and shall provide the FHWA and
USDOJ with a reasonable amount of time of at least ten (10) calendar days,
to be extended, if feasible based on the context of the lawsuit, up to a
maximum of thirty (30) total calendar days, to review and comment on the
proposed settlement. The State will not execute any settlement agreement
until: (1) FHWA and USDOJ have provided comments on the proposed
settlement; (2) FHWA and USDOJ have indicated that they will not provide
comments on the proposed settlement; or (3) the review period has expired,
whichever occurs first.
6. Within seven (7) calendar days of receipt by the State, the State will provide
notice to FHWA's Arizona Division Office and USDOJ of any court decision
on the merits, judgment, and notice of appeal arising out of or relating to the
responsibilities the State has assumed under this MOU. The State shall notify
FHWA's Arizona Division Office and USDOJ within five (5) days of filing a
notice of appeal of a court decision. The State shall confer with FHWA and
USDOJ regarding the appeal at least forty-five (45) calendar days before
filing an appeal brief in the case.
7. The State hereby consents to intervention by FHWA in any action or
proceeding arising out of, or relating to, the State's discharge of any
responsibility assigned to the State under this MOU.
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23 U.S.C. § 326 CE Assignment MOU
FHWA, Arizona Division and the Arizona Department of Transportation
8. The State's notification to FHWA and USDOJ in subparts IV(H)(3)-(6) shall
be made by electronic mail to FHWA assignmentlit@dot.soy and
NRSDOT.enrd@doj.goy, unless otherwise specified by FHWA and USDOJ.
For copies of motions, pleadings, briefs, and other documents filed in a case,
as identified in subpart IV(H)(4), the State may opt to either send the
materials to the email addresses identified above, send hardcopies to the mail
address below, or add to the distribution list in the court's electronic filing
system (e.g., PACER) the following two email addresses:
FHWA assignment_lit@dot.gov and efile nrs.enrd(ausdoi.gov . FHWA and
_
USDOJ's comments under subparts IV(H)(5)-(6) shall be made by electronic
mail to FHWA.Arizona@dot.gov unless otherwise specified by the State. In
the event that regular mail is determined necessary, mail should be sent by
overnight mail service to:
For USDOJ: Assistant Attorney General for the Environment and Natural
Resources Division at 950 Pennsylvania Avenue, NW, Room 2143,
Washington, DC 20530.
For FHWA: Division Administrator, FHWA Arizona Division, 4000 N.
Central Avenue, Suite 1500, Phoenix, Arizona 85012-3500
For ADOT: Environmental Planning Administrator, Arizona Department
of Transportation, 1611 W. Jackson St., MD EM02, Phoenix, AZ 85007
I.
Federal Register. While the MOU is in effect, if any CE project or program
documents are required to be published in the Federal Register, such as a notice
of final agency action under 23 U.S.C. § 139(1), the State shall transmit such
document to the FHWA's Division Office and the FHWA will publish such
document in the Federal Register on behalf of the State. The State is
responsible for the expenses associated with the publishing of such documents
in the Federal Register, in accordance with guidance issued by the FHWA.
J.
Participation in Resource Agency Reports. The State agrees to provide data and
information requested by the FHWA Office of Project Development and
Environmental Review and resource agencies, with a cc to the FHWA Arizona
Division, for the preparation of national reports to the extent that the
information relates to determinations, findings, and proceedings associated with
projects processed under this MOU. Such reports include but are not limited to:
1. Archeology Report requested by the National Park Service;
2. Endangered Species Act Expenditure Reports requested by the United States
Fish and Wildlife Service and the National Marine Fisheries Service;
3. NEPA Litigation Reports requested by the Council on Environmental
Quality; and
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23 U.S.C. § 326 CE Assignment MOU
FHWA, Arizona Division and the Arizona Department of Transportation
4. Environmental Conflict Resolution reports requested by the Council on
Environmental Quality.
V. STATE CERTIFICATIONS AND ACCEPTANCE OF JURISDICTION
A. The State hereby certifies that it has the necessary legal authority and the
capacity to:
1. Accept the assignment under this MOU;
2. Carry out all of the responsibilities assigned to the State; and
3. Agree to and perform all terms and conditions of the assignment as
contained in this MOU and in 23 U.S.C. § 326.
B. The State consents to and accepts the jurisdiction of the Federal courts for the
compliance, discharge, and enforcement of any responsibility of the USDOT
Secretary that the State assumes under this MOU and 23 U.S.C. § 326. The
State understands and agrees that this consent constitutes a waiver of the State's
immunity under the Eleventh Amendment to the U.S. Constitution for the
limited purposes of addressing the compliance, discharge, and enforcement of
matters arising out of this MOU and carrying out the USDOT Secretary's
responsibilities that that State assumes pursuant to this MOU and 23 U.S.C. §
326. This consent to Federal court jurisdiction shall remain valid after
termination of the MOU, or re-assumption of the USDOT Secretary's
responsibilities by the FHWA, for any act or omission by the State relating to its
compliance, discharge, or enforcement of any responsibility under this MOU or
23 U.S.C. § 326. A valid, binding, and sufficient waiver of the State's sovereign
immunity must be in effect at all times that the State acts under the authority of
this MOU.
As provided by Arizona Revised Statutes (A.R.S.) § 28-334, Arizona waives its
immunity under the Eleventh Amendment of the U.S. Constitution. If this
waiver is withdrawn, then the State's authority to participate in this MOU will
end and this MOU will terminate automatically subject to applicable survival
and transitional provisions of this MOU.
C. In accordance with 23 U.S.C. § 326(e), the State agrees that it shall be deemed
to be a Federal agency for the purposes of the Federal law(s) under which the
State exercises any responsibilities pursuant to this MOU and 23 U.S.C. § 326.
D. The State may not assign or delegate its rights or responsibilities under this
MOU to any other agency, political subdivision, or entity, or to any private
individual or entity. Without limiting the foregoing, the State understands and
agrees that it must retain the environmental decision-making responsibilities
assigned to it under this MOU and may not assign or delegate such decision-
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23 U.S.C. § 326 CE Assignment MOU
FHWA, Arizona Division and the Arizona Department of Transportation
making responsibilities to consultants or others.
E. With respect to the public availability of any document or record under the
terms of this MOU or the State's open records law, A.R.S. § 39-101 et seq., the
State certifies that the laws of the State provide that any decision regarding the
release or public availability of a document or record may be legally challenged
or reviewed in the courts of the State.
F. The State certifies that the persons signing this MOU and providing
certifications are duly authorized to do so and have the legal authority to:
1. Enter into this MOU on behalf of the State;
2. Make the certifications set forth in this MOU; and
3. Bind the State to the terms and conditions contained in this MOU.
G. The State further certifies that, in enacting the Arizona Revised Statutes,
Chapter 2, Article 2, Section 28-334, the State has waived the State's Eleventh
Amendment rights and consented to Federal court jurisdiction with regard to the
compliance, discharge and enforcement of any responsibility of the USDOT
Secretary that the State assumes under this MOU and 23 U.S.0 326.
H. The State's Attorney General, by issuing an opinion letter that is addressed to
the FHWA Administrator and attached to this MOU, has made the requisite
certifications as the State's Chief Legal Officer. A copy of the opinion letter is
attached to this MOU as Appendix C.
VI. PUBLIC NOTICE AND COMMENT
A. The execution of this MOU, and of any amendment or renewal, requires prior
public notice and an opportunity for comment.
B. The State shall publish notice of the availability of this MOU, and any
proposed amendment or renewal, for public review and comment and
information regarding access to the USDOT Docket Management System on its
website.
C. The FHWA Arizona Division Office shall publish in the Federal Register a
notice of availability of this MOU and any proposed amendment or renewal of
this MOU, for public review and a thirty (30) calendar day comment period.
This notice will expressly request comments on any types of activities proposed
for assignment under Stipulation 1(B), will include a statement of the public
availability of supporting documentation for any assignment under Stipulation
1(B), and advise the public about how to learn about FHINA's final decision on
the proposed MOU, including how to obtain a copy of any resulting final MOU.
The FHWA will establish a docket in the USDOT Docket Management System
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23 U.S.C. § 326 CE Assignment MOU
FHWA, Arizona Division and the Arizona Department of Transportation
to receive comments.
D. The State and the FHWA shall consider comments provided by the respondents
to the public notices before finalizing the MOU, or any proposed amendment
or renewal agreement. Upon completion of the decision-making process, the
FHWA shall publish a notice in the Federal Register that announces the
agency's decision and the execution of the MOU. The notice also will inform
the public of the availability in the USDOT Docket Management System of a
brief summary of the results of the decision-making process and a copy of any
final MOU executed by the State and the FHWA, whether initial, amended, or
renewed. The notice also will advise where the final MOU is available on the
State's website.
E.
The State agrees that at all times that this MOU is in effect, the State will post
on its website ( https://wvm.azdot.gov/businessienvironmental-plandrig) a
notice of the availability to the public, upon request, of copies of the State's
biannual reports of CE determinations prepared pursuant to Stipulation
IV(F)(1), the State's performance reports prepared pursuant to Stipulation
1V(F)(2), and the FHWA performance monitoring reports prepared pursuant to
Stipulation IV(F)(5). The FH WA will arrange for the posting of a similar
notice on the FHWA's website or create a link from the FHWA's site to the
State's site.
VII. INITIAL TERM AND RENEWAL
A. This MOU shall have a term of three (3) years, beginning on the date of the
last signature.
B. This MOU is renewable for additional terms of three (3) years each if the State
requests renewal and the FHWA determines that the State has satisfactorily
carried out the provisions of this MOU. In considering any renewal of this
MOU, the FHWA will evaluate the effectiveness of the MOU and its overall
impact on the environmental review process. The FHWA may decide not to
renew the MOU if the FHWA determines that the operation of the MOU has
substantial adverse effects on the environmental review process. Such
evaluation may include consideration of any effects from the assumption by
the State of only some, but less than all, of the FHWA's environmental
review, consultation, or other related responsibilities as listed in Stipulation H.
C. At least six (6) months prior to the end of the initial term and of any renewed
term of this MOU, the State and the FHWA shall meet to discuss the results of
the monitoring and consider any amendments to this MOU. This meeting may
be combined with a meeting to discuss performance under the monitoring
provisions in Stipulation IV(F)(2) and (F)(5) of this MOU.
D. If the parties do not renew the MOU, then it shall expire at the end of the term
then in effect. The provisions of Stipulation X(A)(4), and X(C)-(E) shall apply.
-16-
23 U.S.C. § 326 CE Assignment MOU
FHWA, Arizona Division and the Arizona Department of Transportation
VIII. AMENDMENTS
A. Any party to this MOU may request that it be amended, or administratively
modified to reflect non-substantive changes, whereupon the parties shall consult
to consider such an amendment. Public notice and comment is not required for
the parties to wee to a technical non-substantive change.
B. If, after the required public notice and comment, the parties agree to amend the
MOU, then the FHWA and the State may execute an amendment with new
signatures and dates of the signatures. The term of the MOU shall remain
unchanged unless otherwise expressly stated in the amended MOU. Any
amendment that extends the term of the MOU shall be treated as a renewal and
the FHWA must make the determinations required for a renewal under
Stipulation VII.
IX. TERMINATION
A. Termination by the FHWA
1. As provided at 23 U.S.C. 326(d)(1), FHWA may terminate the State's
participation in the Program, in whole or in part, at any time subject to the
procedural requirements in 23 U.S.C. 326 and subpart IX(A)(2) below, if:
a. FHWA determines that the State is not adequately carrying out the
responsibilities assigned to the State under this MOU;
b. FHWA provides to the State a written notification of its determination;
c. FHWA provides the State a period of at least one-hundred twenty (120)
calendar days to take corrective action to comply with this MOU;
d. If requested by the Governor of the State, FHWA provides a detailed
description of each responsibility in need of corrective action regarding
any inadequacy identified by FHWA; and
e. After the notification and after the expiration of the 120-day period
provided under this provision, the State fails to take satisfactory
corrective action as determined by FHWA.
2. Failure to adequately carry out the responsibilities may include, but not be
limited to:
a. Persistent neglect of, or noncompliance with, any Federal laws,
regulations, and policies;
b. Failure to cooperate with FHWA in conducting an audit or any oversight
or monitoring activity;
- 17 -
23 U.S.C. § 326 CE Assignment MOU
FHWA, Arizona Division and the Arizona Department of Transportation
c. Failure to secure or maintain adequate personnel and financial resources
to carry out the responsibilities assumed;
d. Substantial noncompliance with this MOU; or
e. Persistent failure to adequately consult, coordinate, and/or take the
concerns of other Federal agencies, as well as SHP0s/THP0s, into
account in carrying out the responsibilities assumed.
3. If FHWA terminates one or more of the State's responsibilities under this
MOU in accordance with 23 U.S.C. 326, FHWA shall provide written notice
of that termination to the State, and such notice that specify the date on which
the termination becomes effective. Upon that effective date, any
responsibilities identified to be terminated in the notice that have been
assumed by the State of this MOU will transfer to FHWA.
B.
Termination by the State
1. The State may terminate its participation in the Program, in whole or in part,
at any time by providing to FHWA a notice at least ninety (90) calendar days
prior to the date that the State seeks to terminate its participation in this
Program, and subject to such terms and conditions as FHWA may provide.
2. The Arizona Legislature and Governor may, at any time, terminate the
State's authority granted to participate in this Program. In the event, FHWA
and the State will develop a plan to transition the responsibilities that the
State has assumed back to FHWA so as to minimize disruption to projects,
minimize confusion to the public, and minimize burdens to other affected
Federal, State, and local agencies. The plan will be approved by both FHWA
and the State.
3. Any such withdrawal of assignment which FHWA and the State have agreed
to under a transition plan will not be subject to the procedures or limitations
provided for in subpart IX of this MOU and will be valid as agreed to in the
transition plan.
C. Validity of the State Actions
I. Any environmental approvals made by the State pursuant to the
responsibilities the State has assumed under this MOU will remain valid after
termination of the State's participation in the MOU or withdrawal of
assignment by FHWA. As among the USDOT Secretary, FHWA and the
State, the State will remain solely liable and solely responsible for any
environmental approvals it makes pursuant to any of the responsibilities it
has assumed while participating in the Program.
23 U.S.C. § 326 CE Assignment MOU
FHWA, Arizona Division and the Arizona Department of Transportation
X. PROCEDURES FOR TERMINATION AND FHWA-INITIATED PROJECT
EXCLUSIONS
A. Except as provided in Stipulation X(B) below, the process for termination under
Stipulation IX(A)-IX(B), and for exclusion of a project from the M011
assignment by the FHWA under Stipulation III(B)-III(C), is as follows:
I. The party wishing to initiate the termination or exclusion shall provide to
the other party a written notice of intent. The notice should identify the
proposed action and explain the reason(s) for the proposed action.
Following the notice, the parties shall have a thirty (30) calendar-day period
during which the FHWA and the State shall consult on amendments or other
actions that would avoid termination or exclusion. By agreement, the parties
may extend this consultation period, provided that such extension may not
exceed the term of the MOU.
3. Following the consultation period, any termination or exclusion by FHWA
shall be effective as of a date thirty (30) calendar days after the date of
either a post- consultation agreement between the State and FHWA or the
date of the State's receipt of a FHWA notice of final determination of
termination or exclusion. In the event of termination initiated by the State,
the termination shall be effective ninety (90) calendar days after the date
of FHWA's receipt of the State's termination notice. All responsibilities
covered by the termination or exclusion shall revert to the FHWA as of
that effective date.
4. In the event of termination or exclusion, the State and the FHWA agree to
cooperate to make the transfer of responsibilities back to the FHWA
effective in as orderly and administratively efficient manner as possible. The
State will promptly provide FHWA any documents, records and other
project-related material needed for FHWA to proceed with processing any
affected project. Appropriate NEPA procedures, including those under any
applicable programmatic CE agreement, shall apply to the subsequent
processing of projects.
B. The FHWA, in its sole discretion, may exclude a project from this MOU
pursuant to Stipulation III(B)-III(C), without the thirty (30) calendar day
consultation or final notice periods, if the FHWA determines that:
1. The State is not performing in accordance with this assignment; and
2. Extreme conditions exist that justify immediate exclusion or termination and
transfer back to the FHWA of the responsibilities covered by the exclusion
or termination.
23 U.S.C. § 326 CE Assignment MOU
FHWA, Arizona Division and the Arizona Department of Transportation
3. In such cases, the FHWA shall notify the State in writing of its
determination and action, and specify the reason for the action.
C.
The State's liability for its acts and omissions under this MOU, and the
provisions of Stipulation V, shall survive the MOU. This survival clause
includes, without limitation, the provisions of Stipulations IV (G)-IV(H)
relating to liability and litigation.
D.
Exclusion actions, and any decision not to renew, do not require public notice
and comment.
E.
Termination or other action by the FHWA in accordance with the provisions of
this MOU does not limit or otherwise affect the FHWA's ability to seek any
other remedy or to take action under other provisions of applicable law,
including without limitation any appropriate remedies as provided in 23 CFR
1.36.
XI. STATE EXECUTION OF ASSIGNED RESPONSIBILITIES WITHOUT
FHWA INVOLVEMENT
A. The FHWA will not provide any project-level assistance to the State in caffying
out any of the responsibilities assigned under this MOU. "Project-level
assistance" includes advice, consultation, or document review with respect to
the discharge of such responsibility for a particular highway project. However,
"project-level assistance" does not include discussions concerning issues
addressed in prior projects, legal interpretations of any applicable law contained
in titles 23 or 49 of the United States Code, legal interpretations of any FHWA
or USDOT regulation, or interpretations of FHWA or USDOT policies or
guidance. If a need for project-level assistance is identified as a result of the
government-to-government consultation process described in Stipulation
II(B)(1), then the FHWA shall reassume responsibility for the project as
provided in Stipulation III(C).
B. The FHWA will not intervene, broker, act as intermediary, or be otherwise
involved in any issue involving the State's consultation or coordination with
another Federal, State, or local agency with respect to the State's discharge of
any of the responsibilities the State has assumed under this MOU for any
particular highway project. However, the FHWA holds both monitoring and
quality assurance obligations under this MOU and general oversight and
stewardship obligations under the Federal-aid Highway Program. In furtherance
of those obligations, the FHWA may elect to attend meetings between the State
and other Federal agencies. Prior to attending such meetings, the FHWA will
make a reasonable and diligent effort to give the State notice.
In rare or extreme circumstances and based on its observations, the FHWA may
submit comments to the State and the other Federal agency if the FHWA
determines such comment is necessary and in the Federal interest because:
23 U.S.C. § 326 CE Assignment MOU
FHWA, Arizona Division and the Arizona Department of Transportation
1. The FHWA reasonably believes that the State is not in compliance with this
MOU; or
2. The FHWA determines that an issue between the State and the other Federal
agency has broad or unique policy implications for the administration of the
national Federal-aid Highway Program.
XII. NOTICES
Any notice to either party may be given electronically so long as a paper original of the
notice also is delivered to the party. The effective date of the notice shall be the date of
delivery of the paper original. Paper notices shall be delivered as follows:
State of Arizona:
ADOT Director
Arizona Department of Transportation
206 S. 171h Ave
Mail Drop 100A
Phoenix, AZ 85007
Federal Highway Administration:
Division Administrator
4000 North Central Avenue,
Suite 1500
Phoenix, AZ 85012
U.S. Department of Justice:
Office of the Assistant Attorney General
Environment and Natural Resources Division
950 Pennsylvania Avenue, NW
Room 2143
Washington, D.C. 20530
KarlarS. Petty, Division AdministUtor
Arizona Division Office
Final: 23 U.S.C. § 326 CE Assignment MOU
FHWA, Arizona Division and the Arizona Department of Transportation
Execution of this MOU and implementation of its terms by the State formally evidence
that the parties have reviewed this MOU and determined that it complies with the laws,
regulations and policies applicable to the FHWA and the State. Accordingly, this
MOU is approved and is effective upon the date of the last signature below.
FEDERAL HIGHWAY ADMINISTRATION
S171 7 E OF ARIZONA
P
E atlas Flammit, State Engineer and Deputy
Director for Transportation,
Arizona Department of Transportation
ZeA, w
'51 zoie
Date
Final: 23 U.S.C. § 326 CE Assignment MOU
FHWA, Arizona Division and the Arizona Department of
Appendix A
List of FHWA Responsibilities Assigned
Air Quality
Clean Air Act (CAA), 42 U.S.C. §§ 7401-7671q. Including determinations for project-level
conformity if required for the project.
Noise
Noise Control Act of 1972,42 U.S.C. §§ 4901-4918
Compliance with the noise regulations in 23 CFR part 772 (except approval of the State
noise policy in accordance with 23 CFR 772.7)
Wildlife
Section 7 of the Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544, and 1536
Fish and Wildlife Coordination Act, 16 U.S.C. §§ 661-667d
Migratory Bird Treaty Act, 16 U.S.C. §§ 703-712
Historic and Cultural Resources
Section 106 of the National Historic Preservation Act of 1966, as amended, 54 U.S.C.
§ 3 0 6 1 0 8
Archeological Resources Protection Act of 1979, 16 U.S.C. 470aa, et seq.
Section 4(f) of the Department of Transportation Act of 1966, 23 U.S.C. § 138 and 49 U.S.C. § 303;
23 CFR part 77Title 54, Chapter 3125—Preservation of Historical and Archeological Data, 54
U.S.C. §§ 312501-312508
Native American Grave Protection and Repatriation Act (NAGPRA), 25 U.S.C. §§ 3001-
3013; 18 U.S.C. § 1170
Social and Economic Impacts
American Indian Religious Freedom Act, 42 U.S.C. § 1996 1
Farmland Protection Policy Act (FPPA), 7 U.S.C. §§ 4201-
4209
Water Resources and Wetlands
Clean Water Act, 33 U.S.C. §§ 1251-1377.
Safe Drinking Water Act (SDWA), 42 U.S.C. §§ 300f-300j-6
Rivers and Harbors Act of 1899, 33 U.S.C. § 403
Wild and Scenic Rivers Act, 16 U.S.C. §§ 1271-1287
Emergency Wetlands Resources Act, 16 U.S.C. §§ 3921, 3931
Flood Disaster Protection Act, 42 U.S.C. 4001-4128
FHWA wetland and natural habitat mitigation regulations, 23 CFR part 777
Parklands
Section 4(f) of the Department of Transportation Act of 1966, 23 U.S.C. § 138 and 49
U.S.C. 303; and 23 CFR part 774
Land and Water Conservation Fund (LWCF), Pub. L. 88-578, 78 Stat. 897 (known as
-23-
Final: 23 U.S.C. § 326 CE Assignment MOU
FHWA, Arizona Division and the Arizona Department of
Section 6(0)
Hazardous Materials
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42
U.S.C. §§ 9601-9675
Superfund Amendments and Reauthorization Act of 1986 (SARA), 42 U.S.C. §§ 9671 —
9675
Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901-6992k
Land
Landscaping and Scenic Enhancement (Wildflowers), 23 U.S.C. § 319
Executive Orders Relating to Highway Projects
E.O. 11990, Protection of Wetlands
E.O. 11988, Floodplain Management (except approving design standards and determinations
that a significant encroachment is the only practicable alternative under 23 C.F.R. sections
650.113 and 650.115)
E.O. 12898, Federal Actions to Address Environmental Justice in Minority Populations and
Low Income Populations
ED. 11593, Protection and Enhancement of Cultural Resources'
E.O. 13007, Indian Sacred Sites'
ED. 13112, Invasive Species
FHWA-Specific
Planning and Environmental Linkages, 23 U.S.C. § 168, except for those FIIWA
responsibilities associated with 23 U.S.C. §§ 134 and 135
Programmatic Mitigation Plans, 23 U.S.C. § 169 except for those FHWA responsibilities
associated with 23 U.S.C. §§ 134 and 135
Note:
'Under these laws and Executive Orders, FHWA will retain responsibility for conducting
formal government-to-government consultations with federally recognized Indian tribes.
The State will continue to handle routine consultations with the tribes and understands that
a tribe has the right to direct consultation with FHWA upon request. The State may also
assist FHWA with formal consultations, with the consent of a tribe, but FHWA remains
responsible that this consultation occurs.
Final: 23 U.S.C. § 326 CE Assignment MOU
FHWA, Arizona Division and the Arizona Department of
Appendix B
List of ADOT Programmatic Agreements/Memoranda of Understanding
Statewide Agreements
Programmatic Agreement between the Arizona Department of Transportation, Federal
Highway Administration, the Arizona State Historic Preservation Officer, the Bureau of
Indian Affairs, the Bureau of Land Management, the Bureau of Reclamation, the United
States Army Corps of Engineers, the United States Forest Service, the Arizona State Land
Department, Arizona State Parks, the Arizona State Museum, the Gila River Indian
Community, the Hualapai Tribe and the Advisory Council on Historic Preservation.
Signatories: ADOT, FHWA, SHPO, BIA, BLM, BOR, Corps, USFS, ASLD, ASP, ASM,
GRIC, Hualapal, ACHP
Effective Date: December 15, 2015
Memorandum of Agreement between the Arizona Department of Transportation, Federal
Highway Administration, Arizona Division, and the United States Army Corps of Engineers
Los Angeles District Concerning Funding for the Department if the Army Corps Permit
Process on Priority Federal-Aid Highway Projects
Signatories: ADOT, FHWA, CORPS
Effective Date: March 18, 2013
Memorandum of Agreement between the Arizona Department of Transportation, the Federal
Highway Administration, Arizona Division, and the United States Fish and Wildlife Service
Signatories: ADOT, FHWA, USFWS
Effective Date: June 16, 2015
Memorandum of Understanding between the Arizona Department of Transportation, the
Federal Highway Administration, Arizona Division, and the Bureau of Land Management,
Arizona
Signatories: ADOT, FHWA, BLM
Effective Date: September 2, 2008
Memorandum of Understanding Among the Arizona Department of Transportation, the
Federal Highway Administration, Arizona Division, and the USDA Forest Service,
Southwestern Region Regarding the Construction, Operation and Maintenance of Highways
in Arizona Crossing National Forest System Lands
Signatories: ADOT, USFS, FHWA
Effective Date: September 2, 2008
List of related Agreements/Memoranda of Understanding
U.S. Environmental Protection Agency Region IX, U.S. Department of Transportation,
Federal Highway Administration Arizona Division, Memorandum of Understanding, Sole
Source Aquifer Review pursuant to Section 1424 (e) Of the Safe Drinking Water Act
Signatories: FHWA, EPA
Effective Date: November 27, 2002
-25-
Final: 23 U.S.C. § 326 CE Assignment MOU
FHWA, Arizona Division and the Arizona Department of
Appendix C
Arizona Attorney General Letter of Opinion
Dated November 7, 2017
Amu, t3R(WJ( li
Alturoz; tionrat
Office of the Attorney Gem:pal
state or Artion.k
November 7, 2017
Ilrandye Hendrickson
Acting Administrator
Federal Highway Administration
1200 New Jersey Ave., SP
Washington, DC 20390
Subject:
Certification from State Attorney General required by FHWA for assignment of
NEPA and other responsibilities to ADM (23 U.S.C. §§ 326 & 327)
Dear Ms. fiendrickson7
Pursuaut to the authority provided by the Moving Ahead for Progress in the 21' 1 Century Act
or"MAP-2 1 ," and specifically 23 U.S.C. *327 as atnended by MAP-21. the Arizona Ikpartment of
Transportation ("AD01") has advised this Office that it is submitting an application to the Federal
Highway Administration (“FHWA") for reisignment of rizimnsibitities for compliance with the
National Envinnunental Policy Act ("NITA") and other federal environmental laws for federal-aid
highway projects ("NEPA Assignmenr). On September 16, 2014, Fil WA published rules setting
forth the requirements for such applications.' FHWA's rules specify that a state's application for
NEPA Assignment must include certain certifications by the State's Attorney General or other state
official legally empowered by state law to issue legal opinions that bind the state?
ADOI and Fit WA plan to enter into a Menwrandiun of Understanding MOM regarding
the assignment of the federal environmental review responsibilities after a public review of the
application. ADOT and Fin% also plan to enter into a separate MOU for the assignment of
authority to make categorical exclusion determinations under 23 U.S.C. § 326 ("CE Assignment").
the purpose of this letter is to provide the certifications tequimtl by -FIPA'A to accompany ADOT's
application for NEPA Assignment as well as to enter into MOU's for both NEPA Assignment and
CE Assignment
The Attorm., General serves as the chief legal officer of the state? In my official capacity . as
Attorney General of the State of Arizona, I hereby certify the following:
• As stated in A.R.S. § 213-334(C)(1), A.1)01 is legally authorized by state law to assume the
responsibilities of the United Slates Department of 'Imasportation with respect to dirties
79 Fed. Reg, 55,381 (Sept. 10.2014)
7-3 CF.% 773.104(aX6)-(7)
' AILS § 41-192
1r3 w.
admnmull
Amur.: 15%7 2921.1
Ph Ire AN II= :1.02 4
IA' COZ T414951
-26-
165,11511,7
Sincerely,
MareBmovich
Attorney General
Final: 23 U.S.C. § 326 CE Assignment NIOU
FHWA, Arizona Division and the Arizona Department of
November 7, 2017
Page 2 ar2
under NEPA and any other federal environmental law pertaining to review or approval of a
highway project in this state.
• The Legislature enacted A.R.S. § 28-334(C)(2), providing, "[s]overeign immunity from
civil suit in federal court is waived consistent with 23 United States Code §§ 326 and 327
and limited to the compliance, discharge or enforcement of a responsibility assumed by...
TADOT1... under this paragraph." The State's waiver is made consistent with 23 U.S.C,
§ 327, which states: "Dille United States district courts shall have exclusive jurbdiction
over any civil action against a State for failure to carry out any responsibility or the State
under this section."
• The Arizarw Public Records Law (A.R.S. § 39-101 et seq ) is comparable to 5 U.S.C. § 552
(the Freedom ofinformation Act), including providing that any decision regarding the public
availability ora document under state law is reviewable by a court of competent jurisdiction.
- 27 -
Programmatic Agreement for Federal-Aid Transportation Projects in Arizona
April 2020
Programmatic Agreement for Federal-Aid Transportation Projects in Arizona
Attachment 10: 327 MOU
“Memorandum of Understanding Between the Federal Highway Administration and the Arizona
Department of Transportation Concerning the State of Arizona’s Participation in the Surface
Transportation Project Delivery Program Pursuant to 23 U.S.C. 327” (327 MOU)
MEMORANDUM OF UNDERSTANDING BETWEEN
THE FEDERAL HIGHWAY ADMINISTRATION AND THE
ARIZONA DEPARTMENT OF TRANSPORTATION CONCERNING THE
STATE OF ARIZONA'S PARTICIPATION IN THE SURFACE TRANSPORTATION PROJECT
DELIVERY PROGRAM PURSUANT TO 23 U.S.C. 327
THIS MEMORANDUM OF UNDERSTANDING (MOU) entered into by and between the
FEDERAL HIGHWAY ADMINISTRATION (FHWA), an administration in the UNITED STATES
DEPARTMENT OF TRANSPORTATION (DOT), and the STATE OF ARIZONA, acting by and
through its ARIZONA DEPARTMENT OF TRANSPORTATION (ADOT), hereby provides as follows:
WITNESSETH
Whereas, Section 327 of Title 23 of the United States Code (U.S.C.) establishes the Surface
Transportation Project Delivery Program (Program) that allows the Secretary of the United States
Department of Transportation (DOT Secretary) to assign and States to assume the DOT Secretary's
responsibilities under the National Environmental Policy Act of 1969, 42 U.S.C. 4321, et seq.
(NEPA), and all or part of the DOT Secretary's responsibilities for environmental review,
consultation, or other actions required by Federal environmental law with respect to highway, public
transportation, railroad, and multimodal projects within the State; and
Whereas, 23 U.S.C. 327(b)(2) requires a State to submit an application in order to
participate in the Program; and
Whereas, on June 29, 2018, prior to submittal of its application to FHWA, ADOT published
notice of, and solicited public comment on, its draft application to participate in the Program as
required by 23 U.S.C. 327(b)(3), and addressed the comments received as appropriate; and
Whereas, Arizona Revised Statutes (A.R.S.) § 28-334(C) authorizes ADOT to participate in
the Program; and
Whereas, on November 16, 2018, the State of Arizona acting by and through ADOT,
submitted an application to FHWA with respect to highway projects in the State of Arizona ; and
Whereas, on February 11, 2019, FHWA published a notice in the Federal Register providing
an opportunity for comment on its preliminary decision to approve ADOT's application and solicited
the views of other appropriate Federal agencies concerning ADOTs application as required by 23
U.S.C. 327(b)(5); and
Whereas, the DOT Secretary, acting by and through FHWA pursuant to 49 CFR 1.85(a)(3),
has determined that ADOT's application meets the requirements of 23 U.S.C. 327 with respect to
the Federal environmental laws and highway projects identified in this MOU.
Now, therefore, FHWA and ADOT agree as follows:
PART 1. PURPOSE OF MEMORANDUM OF UNDERSTANDING
1.1
Purpose
1.1.1 This MOU officially approves ADOTs application to participate in the Program and is the
written agreement required by 23 U.S.C. 327(a)(2)(A) and (c) under which the DOT
Secretary may assign, and ADOT may assume, the responsibilities of the DOT Secretary
for Federal environmental laws with respect to one or more highway projects within the State
of Arizona.
1.1.2 FHWA's decision to execute this MOU is based upon the information, representations, and
commitments contained in ADOT's November 16, 2018, application. As such, this MOU
incorporates the application. To the extent there is any conflict between this MOU and the
application, this MOU shall control.
1.1.3 This MOU shall be effective upon the date of the final signature (Effective Date).
1.1.4 This MOU does not supersede the existing MOU between FHWA and ADOT under which
FHWA assigned its responsibilities to ADOT, pursuant to 23 U.S.C. 326, for determining
whether certain projects qualify for Categorical Exclusions ("CE") and assigned certain other
responsibilities for those projects ("Section 326 MOU"). The FHWA and ADOT initially
executed the Section 326 MOU on January 3, 2018.
1.1.5 Pursuant to 23 U.S.C. 327(c)(3)(B) and 327(c)(3)(C), and subpart 4.3 of this MOU, third
parties may challenge ADOT's action in carrying out environmental review responsibilities
assigned under this MOU. Otherwise, this MOU is not intended to, and does not, create
any new right or benefit, substantive or procedural, enforceable at law or in equity by any
third party against the State of Arizona, its departments, agencies, or entities, its officers,
employees, or agents. This MOU is not intended to, and does not, create any new right or
benefit, substantive or procedural, enforceable at law or in equity by any third party against
the United States, its departments, agencies, or entities, its officers, employees, or agents.
PART 2. [RESERVED]
PART 3. ASSIGNMENTS AND ASSUMPTIONS OF RESPONSIBILITY
3.1
Assignments and Assumptions of NEPA Responsibilities
3.1.1 Pursuant to 23 U.S.C. 327(a)(2)(A), on the Effective Date of this MOU, FHWA assigns, and
ADOT assumes, subject to the terms and conditions set forth in 23 U.S.C. 327 and this
MOU, all of the DOT Secretary's responsibilities for compliance with the National
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321, et seq., with respect to the
highway projects specified under subpart 3.3. This includes statutory provisions,
regulations, policies, and guidance related to the implementation of NEPA for Federal-aid
highway projects such as 23 U.S.C. 139, 40 CFR parts 1500-1508, DOT Order 5610.1C,
and 23 CFR part 771, as applicable.
3.1.2 On the cover page of each Environmental Assessment (EA), Finding of No Significant
Impact (FONSI), Environmental Impact Statement (EIS), and Record of Decision (ROD)
prepared under the authority granted by this MOU, and for memoranda corresponding to
any CE determination it makes, ADOT shall insert the following language in a way that is
conspicuous to the reader:
2
The environmental review, consultation, and other actions required by
applicable Federal environmental laws for this project are being, or
have been, carried out by ADOT pursuant to 23 U.S.C. 327 and a MOU
dated 04/16/2019 and executed by FHWA and ADOT.
3.1.3 ADOT shall disclose to the public, Tribes and agencies, as part of Agency outreach and
public involvement procedures, including any Notice of Intent or scoping meeting notice, the
disclosure in subpart 3.1.2 above.
3.2
Assignments and Assumptions of Responsibilities to Comply with Federal
Environmental Laws Other Than NEPA
3.2.1 Pursuant to 23 U.S.C. 327(a)(2)(B), on the Effective Date of this MOU, FHWA assigns and
ADOT assumes, subject to the terms and conditions set forth in this MOU, all of the DOT
Secretary's responsibilities under NEPA for environmental review, reevaluation,
consultation, or other action pertaining to the review or approval of highway projects
specified under subpart 3.3 of this MOU, required under the following Federal environmental
laws:
Air Quality
•
Clean Air Act, 42 U.S.C. 7401-7671q, with the exception of project level
conformity determinations
Executive Orders (E.0.) Relating to Highway Projects
•
E.O. 11988, Floodplain Management (except approving design standards and
determinations that a significant encroachment is the only practicable alternative
under 23 CFR parts 650.113 and 650.115)
•
E.O. 11990, Protection of Wetlands
•
E.O. 12898, Federal Actions to Address Environmental Justice in Minority
Populations and Low income Populations
•
ED, 13112, Invasive Species, as amended by E.O. 13751, Safeguarding the
Nation from the Impacts of Invasive Species
•
E.O. 13807 Establishing Discipline and Accountability in the Environmental
Review and Permitting Process for Infrastructure
FHWA-Specific
•
Efficient Project Reviews for Environmental Decision Making, 23 U.S.C. 139
•
Environmental Impact and Related Procedures, 23 CFR part 771
•
Planning and Environmental Linkages, 23 U.S.C. 168, with the exception of those
FHWA responsibilities associated with 23 U.S.C. 134 and 135
•
Programmatic Mitigation Plans, 23 U.S.C. 169, with the exception of those FHWA
responsibilities associated with 23 U.S.C. 134 and 135
Hazardous Materials Manaaement
•
Comprehensive Environmental Response, Compensation, and Liability Act, 42
U.S.C. 9601-9675
3
•
Resource Conservation and Recovery Act, 42 U.S.C. 6901-6992k
•
Superfund Amendments and Reauthorization Act, 42 U S C. 9671-9675
Historic and Cultural Resources
•
Archeological and Historic Preservation Act of 1974, as amended, 54 U.S.C.
312501-312508
•
Archeological Resources Protection Act of 1979, 16 U.S.C. 470(aa)—(mm)
•
Native American Grave Protection and Repatriation Act, 25 U.S.C. 3001-3013;
18 U.S.C. 1170
•
Section 106 of the National Historic Preservation Act of 1966, as amended, 54
U.S.C. 306101 et seq.
•
23 U.S.C. 138 and Section 4(f) of the Department of Transportation Act of 1966,
49 U.S.C. 303 and implementing regulations at 23 CFR part 774
Noise
•
Compliance with the noise regulations in 23 CFR part 772
•
Noise Control Act of 1972, 42 U.S.C. 4901-4918
Parklands and Other Special Land Uses
•
Land and Water Conservation Fund Act, 54 U.S.0 200302-200310
•
Section 4(f) of the Department of Transportation Act of 1966, 23 U.S.C. 138, 49
U.S.C. 303 and implementing regulations at 23 CFR part 774
Social and Economic Impacts
•
American Indian Religious Freedom Act, 42 U.S.C. 1996
•
Farmland Protection Policy Act (FPPA), 7 U.S.C. 4201-4209
Water Resources and Wetlands
•
Clean Water Act, 33 U.S.C. 1251-1387 (Sections 319 and 401, 402,404 and 408)
•
Emergency Wetlands Resources Act, 16 U.S.C. 3901 and 3921
•
FHWA wetland and natural habitat mitigation regulations, 23 CFR part 777
•
Flood Disaster Protection Act, 42 U.S.C. 4001-4130
•
Rivers and Harbors Act of 1899, 33 U.S.C. 403
•
Safe Drinking Water Act, 42 U.S.C. 300f-300j-26
•
Wetlands Mitigation, 23 U.S.C. 119(g) and 133(b)(14)
•
Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287
Wildlife
•
Fish and Wildlife Coordination Act, 16 U.S.C. 661-667d
4
•
Migratory Bird Treaty Act, 16 U.S.C. 703-712
•
Bald and Golden Eagle Protection Act (16 U.S C. 668-668d)
•
Section 7 of the Endangered Species Act of 1973, 16 U.S.C. 1531-1544
3.2.2 In accordance with 23 U.S.C. 327(a)(2)(D), any FHWA environmental review responsibility
not explicitly listed above and assumed by ADOT shall remain the responsibility of FHWA
unless the responsibility is added by written agreement of the parties through the
amendment process established in Part 14 of this MOU and pursuant to 23 CFR 773.113(b).
This provision shall not be interpreted to abrogate ADOTs responsibilities to comply with
the requirements of any Federal environmental laws that apply directly to ADOT
independent of FHWA's involvement (through Federal assistance or approval).
3.2.3 The DOT Secretary's responsibilities for government-to-government consultation with
Indian tribes, as defined in 36 CFR 800.16(m), are not assigned to or assumed by ADOT
under this MOU. The FHWA remains responsible for government-to-government
consultation, including initiation of government-to-government consultation consistent with
E.O. 13175 - Consultation and Coordination with Indian Tribal Governments, unless
otherwise agreed as described below. A notice from ADOT to an Indian tribe advising the
tribe of a proposed activity is not considered "government-to-government consultation"
within the meaning of this MOU. If a project-related concern or issue is raised in a
government-to-government consultation process with an Indian tribe, as defined in 36 CFR
800.16(m), and is related to NEPA or another Federal law for which ADOT has assumed
responsibilities under this MOU, and either the Indian tribe or FHWA determines that the
issue or concern will not be satisfactorily resolved by ADOT, then FHWA may withdraw the
assignment of all or part of the responsibilities for processing the project. In this case, the
provisions of subpart 9.1 of this MOU concerning FHWA initiated withdrawal of an assigned
project or part of an assigned project will apply.
This MOU is not intended to abrogate, or prevent future entry into, an agreement among
ADOT, FHWA, and a Tribe under which the Tribe agrees to allow ADOT to consult for
highway projects in Arizona. However, such agreements are administrative in nature and
do not relieve FHWA of its legal responsibility for government-to-government consultation.
3.2.4 Nothing in this MOU shall be construed to permit ADOT's assumption of the DOT
Secretary's responsibilities for conformity determinations required by Section 176 of the
Clean Air Act (42 U.S.C. 7506) or any responsibility under 23 U.S.C. 134 or 135, or under
49 U.S.C. 5303 or 5304.
3.2.5 The assignment under this part does not alter the scope and terms of Section 326 MOU
signed on January 3, 2018, between ADOT and FHWA. As applicable ADOT will conduct
all environmental reviews authorized under the terms of that MOU.
3.2.6 Included in each consultation letter that is submitted with any biological evaluation or
assessment, historic properties or cultural resources report, Section 4(f) evaluation, or
other analyses prepared under the authority granted by this MOU, ADOT shall insert the
following language in a way that is conspicuous to the reader or include in a project record:
The environmental review, consultation, and other actions required by
applicable Federal environmental laws for this project are being, or have
been, carried out by ADOT pursuant to 23 U.S.C. 327 and a MOU dated
04/16/2019 and executed by FHWA and ADOT.
5
3.2.7 ADOT shall disclose to the public, Tribes and agencies, as part of Agency outreach and
public involvement procedures, the disclosure in subpart 3.2.6 of this MOU.
3.2.8 ADOT will continue to adhere to the original terms of Biological Opinions, Memoranda of
Agreement, Programmatic Agreements, other agreements with terms, and conditions, and
any other commitments that were the result of the environmental review process and
consultations prior to the execution of this MOU as long as these terms are not amended
or revised. Any revisions or amendments to these agreements made after the Effective
Date of this MOU would be ADOT's responsibility. ADOT agrees to assume FHWA's
environmental review role and responsibilities as identified in existing interagency
agreements among ADOT, FHWA, and other Federal or State agencies, and/or negotiate
new agreements, if needed. ADOT agrees to assume FHWA's responsibilities of ongoing
consultations as of the Effective Date of this MOU.
3.2.9 ADOT will not make any determination that an action constitutes a constructive use of a
publicly owned park, public recreation area, wildlife refuge, waterfowl refuge, or historic
site under 49 U.S.C. 303 / 23 U.S.C. 138 [Section 4(f)] without first consulting with FHWA
and obtaining FHWA's approval of such determination.
3.3
Highway Projects
3.3.1
Except as provided in subpart 3.3.2 of this MOU or otherwise specified in this subpart,
the assignments and assumptions of the DOT Secretary's responsibilities under
subparts 3.1 and 3.2 of this MOU shall apply to the environmental review, consultation,
or any other action pertaining to the environmental review or approval of the following
classes of highway projects located within the State of Arizona. The definition of
"highway project" is found at 23 CFR 773.103, and for purposes of this MOU, "highway
project" includes eligible preventative maintenance activities. ADOT shall conduct any
reevaluation required by 23 CFR 771.129 for projects for which construction is not
completed prior to the date of this MOU in accordance with the provisions of this MOU.
Prior to approving any CE determination, finding of no signifant impact FONSI, final EIS,
or final EIS/ROD, ADOT shall ensure and document that for any proposed project the
design concept, scope, and funding are consistent with the current Transportation
Improvement Program (TIP), Regional Transportation Plan (RTP), or Metropolitan
Transportation Plan (MTP), as applicable.
A. All Class I, or EIS projects, that are funded by FHWA or require FHWA approvals.
This assignment does not include the environmental review associated with the
development and approval of the Draft EIS, Final EIS, and ROD for the following
projects:
a. South Mountain Freeway
b. Interstate 11(1-11) Corridor Tier 1 EIS, Nogales to Wickenburg
c. Sonoran Corridor Tier 1 Environmental Impact Statement
B. All Class II, or CE projects, that are funded by FHWA or require FHWA approvals,
and that do not qualify for assignment of responsibilities pursuant to ADOT's
Section 326 MOU.
C. All Class Ill, or EA projects, that are funded by FHWA or require FHWA approvals. This
assignment does not include the environmental review associated with the
development and approval of the EA and FONSI for the following project:
a. State Route 303; 1-10 to SR 30
D. Projects funded by other Federal agencies [or projects without any Federal funding]
that also require FHWA approvals. For these projects, ADOT would not assume the
NEPA responsibilities of other Federal agencies. However, ADOT may use or adopt
6
another Federal agency's NEPA analysis or documents consistent with 40 CFR parts
1500-1508, current law, and DOT and FHWA regulations, policies, and guidance.
E. Except the South Mountain Freeway, projects excluded under this section will be
retained by FHWA until the expiration of the statute of limitations period with respect
to projects for which a limitation of claims notice will be issued under 23 U.S.C. 139(1),
or until the completion of the NEPA process with respect to projects for which such
notice will not be issued. ADOT agrees to be responsible for any re-evaluations
needed under 23 CFR 771.129 or other environmental reviews needed for such
projects thereafter. FHWA will retain responsibility for the South Mountain Freeway
EIS until the project is complete.
3.3.2 The following are specifically excluded from the list in subpart 3.3.1 of highway projects:
A. Any Federal Lands Highway projects authorized under 23 U.S.C. 202, 203, 204, and
FAST Act Section 1123, unless such projects will be designed and constructed by
ADOT.
B. Any project that crosses or is adjacent to international boundaries. For purposes of
this MOU, a project is considered "adjacent to international boundaries" if it requires
the issuance of a new or the modification of an existing, Presidential Permit by the U.S.
Department of State.
C. Any highway project that crosses State boundaries.
D. Projects advanced by direct recipients of Federal-aid Highway funds other than ADOT,
including but not limited to:
1. Transportation Investment Generating Economic Recovery (TIGER) and
Better Utilizing Investments to Leverage Development (BUILD) discretionary
grants and other competitive grant programs; and
2. Transportation Infrastructure Finance and Innovation Act (TIFIA) Credit
Program.
3.4
Limitations
3.4.1 As provided at 23 U.S.C. 327(e), ADOT shall be solely responsible and solely liable for
carrying out, in lieu of and without further approval by FHWA, all of the responsibilities it
has assumed under this MOU.
3.4.2 As provided at 23 U.S.C. 327(a)(2)(D), any highway project or responsibility of the DOT
Secretary that is not explicitly assumed by ADOT under subpart 3.3.1 of this MOU remains
the responsibility of the DOT Secretary.
PART 4. CERTIFICATIONS AND ACCEPTANCE OF JURISDICTION
4.1 Certifications
4.1.1 ADOT hereby makes the following certifications:
A. ADOT has the legal authority to accept all the assumptions of responsibility identified
in this MOU;
B. ADOT has the legal authority to take all actions necessary to carry out all of the
responsibilities it has assumed under this MOU;
C. ADOT has the legal authority to execute this MOU;
D. The State of Arizona has laws in effect that are comparable to the Freedom of
Information Act (FOIA) at 5 U.S.C. 552, and those laws are found in the Arizona Public
Records Law (A.R.S. § 39-101 et seq); and
7
E. The Arizona Public Records Law provides that any decision regarding the public
availability of a document under that Act is reviewable by an Arizona court of competent
jurisdiction.
4.2
State Commitment of Resources
4.2.1 As required by 23 U.S.C. 327(c)(3)(D), ADOT will maintain the financial resources
necessary to carry out the responsibilities it is assuming. ADOT asserts, and FHWA
agrees, that the summary of financial resources contained in ADOT's application, dated
November 16, 2018, appears to be adequate for this purpose. Should FHWA determine,
after consultation with ADOT, that ADOT's financial resources are inadequate to carry
out the DOT Secretary's responsibilities, ADOT will take appropriate action to obtain the
additional financial resources needed to carry out these responsibilities. If ADOT is
unable to obtain the necessary additional financial resources, ADOT shall inform FHWA,
and this MOU will be amended to assign only the responsibilities that are commensurate
with ADOT's financial resources.
4.2.2 Similarly, ADOT has and will maintain adequate organizational and staff capability,
including competent and qualified consultants where necessary or desirable, to
effectively carry out the responsibilities it has assumed under this MOU. This includes,
without limitation:
A. Using appropriate environmental, technical, legal, and managerial expertise;
B. Devoting adequate staff resources; and
C. Demonstrating, in a consistent manner, the capacity to perform ADOT's assumed
responsibilities under this MOU and applicable Federal laws.
Should FHWA determine, after consultation with ADOT, that ADOT's organizational and
staff capability is inadequate to carry out the DOT Secretary's responsibilities, ADOT will
take appropriate action to obtain adequate organizational and staff capability to carry out
these responsibilities. If ADOT is unable to obtain adequate organizational and staff
capability, ADOT shall inform FHWA, and the MOU will be amended to assign only the
responsibilities that are commensurate with ADOT's available organizational and staff
capability. Should ADOT choose to meet these requirements, in whole or in part, with
consultant services, including outside counsel, ADOT shall maintain on its staff an
adequate number of trained and qualified personnel, including counsel provided by the
State of Arizona Office of Attorney General, to oversee the consulting work.
4.2.3 When carrying out the requirements of Section 106 of the National Historic Preservation
Act (NHPA), as amended, ADOT staff (including consultants) shall comply with 36 CFR
800.2(a)(1). All actions that involve identification, evaluation, analysis, recording,
treatment, monitoring, or disposition of historic properties, or that involve the reporting
or documentation (including 36 CFR 800.11) of such actions in the form of reports,
forms, or other records, shall be carried out by or under the direct supervision of a
person or persons who meet the Secretary of the Interior's Professional Qualifications
Standards (36 CFR part 61, Appendix A). ADOT shall ensure that all documentation
required under 36 CFR 800.11 is reviewed and approved by a staff member or
consultant who meets the Professional Qualifications Standards.
4.2.4 As part of its commitment of resources, ADOT will continue to develop, implement and
update its manuals and procedures which are not subject to FHWA review or approval,
to support appropriate environmental analysis and decision-making under NEPA and
associated laws and regulations. ADOT recognizes it is solely responsible for the
8
manuals and procedures for compliance with responsibilities assigned in this MOU and
for establishing policy and guidance to implement its program.
4.3
Federal Court Jurisdiction
4.3.1 As required under 23 U.S.C. 327(c)(3)(B), and authorized by Arizona Statute § 28-
334(C), ADOT hereby expressly consents, on behalf of the State of Arizona, to accept
the jurisdiction of the Federal courts in cases that involve the compliance, discharge,
and enforcement of any responsibility of the DOT Secretary assumed by ADOT under
Part 3 of this MOU. The consent to Federal court jurisdiction shall remain valid after
termination of this MOU, or FHWA's withdrawal of assignment of the DOT Secretary's
responsibilities, for any decision or approval made by ADOT pursuant to an assumption
of responsibility under this MOU. ADOT understands and agrees that, in accordance
with 23 U.S.C. 327(d)(1), the United States district court shall have exclusive jurisdiction
over any civil action against the State of Arizona alleging a failure to carry out any
responsibility assumed under this MOU, which constitutes a limited waiver of the State
of Arizona's immunity under the Eleventh Amendment to the U.S. Constitution.
PART 6. APPLICABILITY OF FEDERAL LAW
6.1
Procedural and Substantive Requirements
5.1.1 As provided at 23 U.S.C. 327(a)(2)(C), in assuming the DOT Secretary's responsibilities
under this MOU, ADOT shall be subject to the same procedural and substantive
requirements that apply to the DOT Secretary in carrying out these responsibilities.
Such procedural and substantive requirements include, but are not limited to, Federal
statutes and regulations; Executive Orders issued by the President of the United States;
DOT Orders; Council on Environmental Quality (CEQ) Regulations for Implementing the
Procedural Provisions of NEPA (40 CFR parts 1500-1508); FHWA Orders, guidance,
and policy issued by CEO, Office of Management and Budget (OMB), DOT, or FHWA
(e.g., Guidance Establishing Metrics for the Permitting and Environmental Review of
Infrastructure Projects); and any applicable Federal court decisions, and, subject to
subpart 5.1.4 of this MOU, interagency agreements, and other similar documents that
relate to the environmental review process, (e.g., 2015 Red Book - Synchronizing
Environmental Reviews for Transportation and Other Infrastructure Projects). Official
DOT and FHWA guidance and policies relating to environmental review are posted on
FHWA's Website, contained in the FHWA Environmental Guidebook, published in the
Federal Register, or sent to ADOT electronically or in hard copy.
ADOT has reviewed the 2014 MOA between the U.S. Coast Guard (USCG) and FHWA
and understands that by accepting FHWA's NEPA responsibilities, it also agrees to
perform FHWA's obligations set forth in the MOU between DOT and USCG and the MOA
between FHWA and USCG.
5.1.2 The FHWA will use its best efforts to ensure that any new or revised Federal policy or
guidance, which are final and applicable to FHWA's responsibilities under NEPA and other
laws that are assumed by ADOT under this MOU, are communicated to ADOT within 10
business days of issuance. Delivery may be accomplished by e-mail, Web posting (with
e-mail or mail to ADOT notifying of Web posting), mail, or publication in the Federal
Register (with e-mail or mail to ADOT notifying of publication). If communicated to ADOT
by e-mail or mail, such material will be sent to ADOT's Environmental Planning
Administrator. When FHWA is considering changes to the Program or changes that may
or will impact ADOT's assumed responsibilities or resources, FHWA shall seek input from
ADOT. In the event a new or revised FHWA policy or guidance is not made available to
9
ADOT as described in this subpart, and if ADOT had no knowledge of such policy or
guidance, then a failure by ADOT to comply with such Federal policy or guidance will not
be a basis for termination of this MOU or a negative audit finding under this MOU.
5.1.3 ADOT will coordinate with Federal resource agencies concerning applicable laws, formal
guidance, and policies that such other Federal agencies are responsible for administering
with respect to ADOT's highway projects and the assumption of responsibilities under this
MOU.
Within six (6) months of the Effective Date of this MOU, ADOT will work with FHWA and
the resource agencies to modify existing interagency agreements. Such actions may
include:
A. Obtaining written consent to the continuation of an interagency agreement in its
existing form, but with the substitution of ADOT for FHWA; or
B. Amending an interagency agreement as needed so that the interagency agreement
continues but that ADOT assumes FHWA's responsibilities.
If an affected agency does not agree to modify an interagency agreement then, to the
extent permitted by applicable law and regulation, ADOT will carry out the assumed
environmental review, consultation, or other related activity in accordance with applicable
laws and regulations but without the benefit of the provisions of the interagency agreement.
5.1.4 ADOT may enter into an interagency agreement with a Federal, State, Tribal, or local
agency regarding appropriate processes and procedures to carry out the project-specific
responsibilities assumed under this MOU. Although FHWA is not required to be a
signatory, such an interagency agreement must conform with all provisions of this MOU,
especially subpart 5.2.1.
5.1.5 Upon termination of this MOU, ADOT and FHWA shall contact the Federal resource
agency to determine whether any interagency agreement should be amended or reinstated
as appropriate.
5.2
Rulemaking
5.2.1 As provided under 23 U.S.C. 327(f), nothing in this MOU allows ADOT to assume any
rulemaking authority of the DOT Secretary. in addition, ADOT may not establish policy
and guidance on behalf of the DOT Secretary or FHWA for highway projects covered in
this MOU. ADOT's authority to establish State regulations, policy, and guidance
concerning the State environmental review of State highway projects shall not supersede
applicable Federal environmental review regulations, formal policy, or guidance
established by or applicable to the DOT Secretary or FHWA.
5.2.2 Nothing in this MOU prevents ADOT from commenting on any Federal Register notice for
any matter, including Notices of Proposed Rulemaking and other public notices.
5.3
Effect of Assumption
5.3.1 For purposes of carrying out the responsibilities assumed under this MOU, and subject
to the limitations contained in 23 U.S.C. 327 and this MOU, ADOT shall be deemed to
be acting as FHWA with respect to the environmental review, consultation, and other
related actions required under those responsibilities.
5.4
Other Federal Agencies
10
5.4.1 As provided under 23 U.S.C. 327(a)(2)(E), nothing in this MOU preempts or interferes
with any power, jurisdiction, responsibility, or authority of any Federal agency other
than DOT (including FHWA), under applicable statutes and regulations with respect to
a highway project.
PART 6. LITIGATION
6.1
Responsibility and Liability
6.1.1 As provided in 23 U.S.C. 327(e), ADOT will be solely liable and solely responsible for
carrying out the responsibilities assumed under this MOU, in lieu of and without further
approval of the DOT Secretary. The FHWA and DOT will have no responsibility or liability
for the performance of the responsibilities assumed by ADOT, including any decision or
approval made by ADOT while participating in the Program.
6.2
Litigation
6.2.1
Nothing in this MOU affects the U.S. Department of Justice's (DOJ) authority to litigate
claims, including the authority to approve a settlement on behalf of the United States, if
either FHWA or another agency of the United States is named in such litigation or if the
United States intervenes pursuant to 23 U.S.C. 327(d)(3). In the event FHWA or any other
Federal agency is named in litigation related to matters under this MOU or the United
States intervenes in the litigation, ADOT will coordinate with FHWA and any DOJ or
Federal agency attorneys in the defense of that action.
6.2.2 ADOT shall defend all claims brought in connection with its discharge of any responsibility
assumed under this MOU. In the event of litigation, ADOT will provide qualified and
competent legal counsel, including outside counsel if necessary. ADOT will provide the
defense at its own expense, subject to 23 U.S.C. 327(a)(2)(G) concerning Federal-aid
participation in attorney's fees for ADOT's counsel. ADOT will be responsible for opposing
party's attorney's fees and court costs if a court awards those costs to an opposing party,
or in the event those costs are part of a settlement agreement, subject to allocation of
responsibility between ADOT and any co-defendant Federal agency.
6.2.3 ADOT will notify the FHWA's Arizona Division Office and DOJ's Assistant Attorney General
for the Environment and Natural Resources Division, within seven (7) calendar days of
ADOT's receipt of service of process of any complaint, concerning its discharge of any
responsibility assumed under this MOU. ADOT's notification to FHWA and DOJ shall be
made prior to its response to the complaint. In addition, ADOT shall notify the FHWA's
Arizona Division Office within seven (7) calendar days of receipt of any notice of intent to
sue concerning its discharge of any responsibility assumed under this MOU.
6.2.4 ADOT will provide the FHWA's Arizona Division Office and DOJ copies of any motions,
pleadings, briefs, and other such documents filed in any case concerning its discharge of
any responsibility assumed under this MOU. ADOT will provide such copies to the FHWA
and DOJ within seven (7) calendar days of receipt of service of any document or, in the
case of any documents filed by or on behalf of ADOT, within seven (7) calendar days of
the date of filing.
6.2.5 ADOT will notify the FHWA's Arizona Division Office and DOJ prior to settling any lawsuit,
in whole or in part, and shall provide the FHWA and DOJ with a reasonable amount of time
of at least ten (10) calendar days, to be extended, if feasible based on the context of the
lawsuit, up to a maximum of thirty (30) total calendar days, to review and comment on the
proposed settlement. ADOT will not execute any settlement agreement until: (1) FHWA
and DOJ have provided comments on the proposed settlement; (2) indicated that they will
11
not provide comments on the proposed settlement; or (3) the review period has expired,
whichever occurs first.
6.2.6 Within seven (7) calendar days of receipt by ADOT, ADOT will provide notice to FHWA's
Arizona Division Office and DOJ of any court decision on the merits, judgment, and notice
of appeal arising out of or relating to the responsibilities ADOT has assumed under this
MOU. ADOT shall notify FHWA's Arizona Division Office and DOJ within five (5) calendar
days of filing a notice of appeal of a court decision. ADOT shall confer with FHWA and
DOJ regarding the appeal at least forty-five (45) calendar days before filing its initial brief
on the merits of the appeal.
6.2.7 ADOT's notifications to FHWA and DOJ in subparts 6.2.3, 6.2.4, 6.2.5, and 6.2.6 shall be
made by electronic mail to FHWA_assignmentlit©dot.gov , and
NRSDOT.enrd@usdoj.gov, unless otherwise specified by FHWA and DOJ. For copies of
motions, pleadings, briefs, and other documents filed in a case, as identified in subpart
6.2.4, ADOT may opt to either send the materials to the email addresses identified above,
send hardcopies to the mail address below, or add to the distribution list in the court's
electronic filing system (e.g., PACER) the following two email addresses:
FHWkassignment_lit@dot.gov and efile_nrs.enrd©usdoj.gov . The FHWA and DOJ's
comments under subpart 6.2.5 and 6.2.6 shall be made by electronic mail to
NEPA_Assignment©azdot.gov unless otherwise specified by ADOT. In the event that
regular mail is determined necessary, mail should be sent by overnight mail service to:
For DOJ:
Assistant Attorney General for the Environment and Natural Resources
Division at 950 Pennsylvania Avenue, NW, Room 2143, Washington, DC, 20530.
For FHWA: Division Administrator, Federal Highway Administration — Arizona Division
4000 N. Central Avenue, Suite 1500 Phoenix, Arizona 85012-3500.
For ADOT: Environmental Planning Administrator, Arizona Department of Transportation,
1611 West Jackson St. MD EM04, Phoenix AZ 8507
6.3
Conflict Resolution
6.3.1 In discharging any of the DOT Secretary's responsibilities under this MOU, ADOT
agrees to comply with any applicable requirements of DOT and FHWA statute,
regulation, guidance, or policy regarding conflict resolution. This includes compliance
with the DOT Secretary's responsibilities for issue resolution under 23 U.S.C. 139(h)
with the exception of the DOT Secretary's responsibilities under 23 U.S.C. 139(h)(7)
regarding financial penalties.
6.3.2 ADOT agrees to follow 40 CFR part 1504 in the event of pre-decision referrals to CEQ
for Federal actions determined to be environmentally unsatisfactory. ADOT also agrees
to coordinate and work with CEQ on matters brought to CEQ with regards to the
environmental review responsibilities for Federal highway projects ADOT has assumed
under this MOU.
PART 7. INVOLVEMENT WITH OTHER AGENCIES
7.1
Coordination
1 2
7.1.1 ADOT agrees to seek early and appropriate coordination with all applicable Federal,
State, and local agencies in carrying out any of the responsibilities for highway projects
assumed under this MOU.
7.2
Processes and Procedures
7.2.1 ADOT will ensure that it has appropriate processes and procedures in place that provide
for proactive and timely consultation, coordination, and communication with applicable
Federal agencies in order to carry out the responsibilities assumed under this MOU,
including the submission of all EISs together with comments and responses to the
Environmental Protection Agency (EPA) as required by 40 CFR 1506.9 and for EPA's
review as required by section 309 of the Clean Air Act, 42 U.S.C. 7609. These
processes and procedures shall be documented. Documentation may be a formally
executed interagency agreement or other format as appropriate.
PART 8. INVOLVEMENT WITH FHWA
8.1
Generally
8.1.1 Except as specifically provided otherwise in this MOU, FHWA will not provide project-
level assistance to ADOT in carrying out the responsibilities it has assumed under this
MOU. Project-level assistance includes advice, consultation, or review of draft
documents. However, project-level assistance does not include: process or program-
level assistance as described in subpart 8.1.5 of this MOU, including discussions
concerning issues addressed in prior projects, interpretations of applicable law
contained in Title 23 U.S.C. or Title 49 U.S.C., interpretations of any FHWA or DOT
regulation, or interpretations of FHWA or DOT policies or guidance.
8.1.2 The FHWA will not intervene, broker, act as intermediary, or otherwise be involved in
any issue involving ADOT's consultation or coordination with other Federal resource
agencies with respect to ADOT's discharge of any of the responsibilities assumed under
this MOU for any particular highway project. However, FHWA may attend meetings
between ADOT and other Federal agencies. Further, FHWA may submit comments to
ADOT and the other Federal agency in the following extraordinary circumstances:
A.
FHWA reasonably believes that ADOT is not in compliance with this MOU;
B.
FHWA determines that an issue between ADOT and the other Federal agency
concerns an emerging national policy issue under consideration by the DOT.
The FHWA will notify both ADOT and the relevant Federal agency prior to attending any
meetings between ADOT and such other Federal agency.
8.1.3 Other Federal agencies may raise concerns regarding compliance with this MOU by
ADOT and may communicate these concerns to FHWA. The FHWA will review the
concerns and any information provided to FHWA by such other Federal agency. If
FHWA determines the concern has merit, FHWA shall inform ADOT Environmental
Planning Administrator. ADOT will review the concerns and any information provided
to FHWA, and work with the other Federal agency to resolve the concern. If the concern
remains unresolved, FHWA will notify ADOT and will work with both ADOT and the other
Federal agency to resolve the issue and, if necessary, take appropriate action to ensure
compliance with this MOU.
1]
8.1.4 At ADOT's request, FHWA may assist ADOT in evaluating its environmental program
and developing or modifying any of its processes or procedures to carry out the
responsibilities it has assumed under this MOU, including, but not limited to, emerging
national policy issues and those processes and procedures concerning ADOT's
consultation, coordination, and communication with other Federal agencies.
8.1.5 Communications between ADOT and FHWA regarding the administration of the
responsibilities assigned and assumed under this MOU, and other process and
program-level communications described in subparts 8.1.2 and 8.1.5 of this MOU, are
normally considered intra-agency communications for the purpose of deliberative
process privileges under the Freedom of Information. ADOT and FHWA shall promptly
notify each other of requests for public records regarding the administration of the
Program in Arizona.
8.1.6 For active projects where ADOT is assuming responsibilities from FHWA under this
MOU, FHWA shall allow ADOT access to its project files and arrange for copies to be
provided upon request by ADOT.
8.1.7 ADOT's obligations and responsibilities under 23 CFR 1.5 are not altered in any way by
executing this MOU.
8.2
MOU Monitoring and Oversight
8.2.1 FHWA will provide necessary and appropriate monitoring and oversight of ADOT's
compliance with this MOU. The FHWA's monitoring and oversight activities in years
one through four of this MOU's term will primarily consist of an annual audit as provided
at 23 U.S.C. 327(g) and Part 11 of this MOU, and evaluating attainment of the
performance measures listed in Part 10 of this MOU. After the fourth year of ADOT's
participation in the Program, FHWA will monitor ADOT's compliance with the MOU
including the provision by ADOT of financial resources to carry out the MOU as provided
at 23 U.S.C. 327(h). The FHWA's monitoring and oversight may also include submitting
requests for information to ADOT and other relevant Federal agencies, verifying ADOT's
financial and personnel resources dedicated to carrying out the responsibilities
assumed, and reviewing documents and other information.
8.2.2 Pursuant to 23 U.S.C. 327(c)(4), ADOT is responsible for providing FHWA any
information FHWA reasonably considers necessary to ensure that ADOT is adequately
carrying out the responsibilities assigned. When requesting information subject to
section 327(c)(4), FHWA will provide the request to ADOT in writing, and the request
will identify with reasonable specificity the information required. FHWA will also indicate
in the request a deadline for the information to be provided. ADOT will, in good faith,
work to ensure the information requested is provided by the deadline. ADOT's response
to an information request under this paragraph will include, where appropriate, making
relevant employees and consultants available at their work location (including via an in-
person meeting, teleconference, videoconference or other electronic means as may be
available).
8.2.3 ADOT shall make project files and general administrative files pertaining to the
discharge of the responsibilities it has assumed under this MOU reasonably available
for inspection by FHWA at the files' locations upon reasonable notice, which is not less
than five business days. These files shall include, but are not limited to, letters and
comments received from governmental agencies, the public, and others with respect to
ADOT's discharge of the responsibilities assumed under this MOU,
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8.2.4 In carrying out the responsibilities assumed under this MOU, ADOT agrees to carry out
regular quality control and quality assurance (QA/QC) reviews to ensure that the
assumed responsibilities are being conducted in accordance with applicable law and
this MOU. At a minimum, ADOT's QA/QC process will include the review and monitoring
of its processes and performance relating to project decisions, completion of
environmental analysis, project file documentation, checking for errors and omissions,
and legal sufficiency reviews, and taking appropriate corrective action as needed. Within
three (3) months of the Effective Date of this MOU, ADOT shall finalize a QA/QC process
that satisfies the requirements in this subpart. In developing and implementing the
QA/QC process, ADOT shall consult with the FHWA Arizona Division Office. ADOT
agrees to cooperate with FHWA to consider recommendations FHWA may have made
with respect to its QA/QC process.
8.2.5 ADOT shall perform annual self-assessments of its QA/QC process and performance to
determine if its process is working as intended. If any process areas are identified as
needing improvement, ADOT will take appropriate and timely corrective actions to
address such areas. At least one month prior to the date of a scheduled FHWA audit
ADOT will transmit a summary of its most recent self-assessment to FHWA Arizona
Division Office. The summary will include a description of the scope of the self-
assessment conducted and the areas reviewed, a description of the process followed in
conducting the self-assessment, a list of the areas identified as needing improvement,
any corrective actions that have been or will be implemented, a statement from ADOT's
Environmental Planning Administrator concerning whether the processes are ensuring
that the responsibilities ADOT has assumed under this MOU are being carried out in
accordance with this MOU and all applicable Federal laws and policies, and a summary
of ADOT's progress toward attaining the performance measures listed in Part 10 of this
MOU.
8.2.6 Upon the Effective Date of this MOU, ADOT will maintain a list of NEPA approvals and
decisions (CE, EA, FONSI, DEIS, FEIS, FEIS/ROD, ROD) and Section 4(f) approvals it
makes under this MOU. ADOT will provide an updated list to FHWA Arizona Division
every six (6) months (January 1 through June 30, and July 1 through December 31).
8.3
Records Retention
8.3.1
ADOT will retain project files, and files pertaining to the discharge of its responsibilities
under this MOU in accordance with 2 CFR 200.333.
.
8.3.2 State public records are maintained pursuant to state law and published retention
schedules. For the following record types, ADOT will ensure that the applicable retention
schedules reflect the following minimum retention periods and records are maintained in
the following manner:
A.
FHWA-ADOT Environment Correspondence Files: Correspondence between
FHWA and ADOT relative to the interpretation, administration, and execution of
this MOU and the environmental aspects of the Federal-aid Highway Program, as
established in 8.1.2 and 8.1.5, shall be maintained by ADOT for a period of six (6)
years after the resolution of the particular issue or after the guidance has been
superseded. After six (6) years ADOT will follow the State records
retention/disposition schedule for these records.
B.
National Environmental Policy Act (NEPA) and Related Documents: For a
period of 8 years after approval of the final construction voucher ADOT shall
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maintain Final NEPA Documents (Draft EISs, Final EISs, Supplemental EISs,
RODs, EAs, FONSIs, CE documentation and determinations), supporting
materials documentation supporting the Sec. 139 environmental review process
(e.g., coordination plans that include project schedules, evidence of opportunities
for public/agency input in the purpose and need and alternatives], scoping
documents, public and agency comments; meeting minutes; Notices of Intent
(NOI's), Public Involvement Plans, public meeting summaries, public hearing
certifications and transcripts, mitigation reports/tracking, technical reports;
correspondence; studies and reports; references; errata sheets; and reevaluation
documents); NEPA Reference Documents (written statements and supporting
documents needed for reference); and official documents and correspondence
related to reviews under other environmental requirements (e.g., ESA, CWA,
Section 4(f), Section 106). After 8 years ADOT will follow the State records
retention/disposition schedule for these records, except that ADOT will
permanently store the above referenced records for Significant Transportation
Projects as they are defined in Order No. 1224.1B.
C.
Environmental Impact Statements - Other Agencies: Files containing reviews
and comments furnished by ADOT to other Federal agencies following reviews of
an EIS for which another Federal agency is the lead agency shall be maintained
by ADOT for a period of 5 years. After 5 years, ADOT may destroy these files
when no longer needed.
D.
Noise Barriers: ADOT agrees to maintain the necessary information to comply
with 23 CFR 772.13(f) regarding noise abatement measures reporting. ADOT
shall maintain this information for a period of 4 years after the end of the Federal
fiscal year in which the project file is closed.
8.3.3 In the case of a conflict between FHWA Records Disposition Manual, FHWA Order
1324.1B, ADOT Records Management Policy, Retention and Disposal Schedule, ADOT
will work to update the State retention schedule such that the more stringent retention
requirements are met.
8.4
Federal Register
8.4.1 For any documents that are required to be published in the Federal Register, such as
the NOI under 23 CFR 771.123(a) and Notice of Final Agency Action under 23 U.S.C.
139(1)(2), ADOT shall transmit such document to FHWA's Arizona Division Office, with
a request for publication in the Federal Register on behalf of ADOT. The FHWA's
Arizona Division Office will promptly submit such document to be published in the
Federal Register on behalf of ADOT. If requested, ADOT shall reimburse FHWA for
costs associated with publishing such documents in the Federal Register (excluding
FHWA's overhead).
8.5
Participation in Resource Agency Reports
8.5.1 ADOT agrees to provide data and information requested by FHWA and resource
agencies for the preparation of national reports to the extent that the information relates
to determinations, findings, and proceedings associated with projects processed under
this MOU. Such reports include but are not limited to:
A. Information on the completion of and duration to complete all NEPA classes of action
(EIS, EA, CE);
B. Archeology Reports requested by the National Park Service;
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C. Endangered Species Act Expenditure Reports requested by the U.S.
Fish & Wildlife Service and National Marine Fisheries Service;
D. Project schedules and other project information for nationwide infrastructure
transparency initiatives;
E. Project status and information for EAs and EISs for use on the searchable Website
maintained under section 41003(b) of the FAST Act [Fixing America's Surface
Transportation Act, 42 U.S.C. 4370m-2(b) and 23 U.S.C. 139(o)] (Federal Permitting
Dashboard) to be submitted in accordance with current and any future reporting
standard issued by DOT pursuant to such provisions;
F. NEPA Litigation Reports requested by CEQ;
G. Environmental Conflict Resolution reports requested by the Office of Management
and Budget and CEQ; and
H. Noise abatement measure reporting.
8.6
Conformity Determinations
8.6.1
Pursuant to 23 U.S.C. 327(a)(2)(B)(iv)(II), for any project requiring a project-level
conformity determination under the Clean Air Act and its implementing regulations,
FHWA's Arizona Division Office will document the project level conformity determination
within a reasonable timeframe. The FHWA's Arizona Division Office will restrict its
review to only that data, analyses, applicable comments and responses, and other
relevant documentation that enable FHWA to make the project-level conformity
determination.
8.7
Certification of NEPA Compliance
8.7.1 For projects funded by FHWA, ADOT shall ensure that a certification is included with each
NEPA approval specifying that ADOT has fully carried out all responsibilities assumed
under this MOU in accordance with this MOU and all applicable Federal laws, regulations,
Executive Orders, and policies. ADOT shall ensure that this certification is made prior to
the execution of any future Federal-aid approval or action. ADOT shall include the
certification in its request for authority to proceed to final design, right-of-way acquisition,
or construction. ADOT agrees to provide FHWA access to NEPA approvals and
certifications.
8.8
Enforcement
8.8.1 Should FHWA determine that ADOT is not in compliance with this MOU, then FHWA
shall take appropriate action to ensure ADOT's compliance, including appropriate
remedies provided at 23 CFR 1.36 for violations of or failure to comply with Federal
law or regulations at 23 CFR with respect to a project, withdrawing assignment of any
responsibilities that have been assumed as provided in Part 9 of this MOU, or
terminating ADOT's participation in the NEPA Assignment Program as provided in Part
13 of this MOU.
PART 9. WITHDRAWAL OF ASSIGNED RESPONSIBILITIES
9.1
FHWA-Initiated Withdrawal of Assigned Projects
9.1.1 The FHWA may, at any time, withdraw the assignment of all or part of the DOT
Secretary's responsibilities that have been assumed by ADOT under this MOU for any
highway project or highway projects upon FHWA's determination that
17
A. With respect to such project or projects, ADOT is not in compliance with a material
term of this MOU or applicable Federal laws or policies, and ADOT has not taken
sufficient corrective action to the satisfaction of FHWA;
B. The highway project or highway projects involve significant or unique national policy
interests for which ADOT's assumption of the DOT Secretary's responsibilities would
be inappropriate; or
C. ADOT cannot satisfactorily resolve an issue or concern raised in government-to-
government consultation process, as provided in subpart 3.2.3.
9.1.2 Upon the FHWA's determination to withdraw assignment of the DOT Secretary's
responsibilities under subpart 9.1.1, FHWA will informally notify ADOT of FHWA's
determination. After informally notifying ADOT of its determination, FHWA will provide
ADOT written notice of its determination including the reasons for its determination.
Upon receipt of this notice, ADOT may submit any comments that would resolve the
compliance concern or objections to FHWA within 30 calendar days, unless FHWA
agrees to an extended period of time. Upon receipt of ADOT's comments or objections,
FHWA will make a final determination within 30 calendar days, unless extended by FHWA
for cause, and notify ADOT of its decision. In making its determination, FHWA will consider
ADOT's comments or objections, the effect the withdrawal of assignment will have on the
Program, the amount of disruption to the project concerned, the effect on other projects,
confusion the withdrawal of assignment may cause to the public, the potential burden to
other Federal agencies, and the overall public interest.
9.1.3 The FHWA shall withdraw assignment of the responsibilities ADOT has assumed for
any highway project when the preferred alternative that is identified in the CEs, EA, or
FEIS is a highway project or part of a program that is specifically excluded in subpart
3.3.2. In such case, subpart 9.1.2 of this MOU shall not apply.
9.2
ADOT-Initiated Withdrawal of Assignment of Projects
9.2.1 ADOT may, at any time, provide FHWA with notice of its intent to withdraw a highway
project assumed under this MOU.
9.2.2 Upon ADOT's decision to request FHWA withdraw the assignment of the DOT Secretary's
responsibilities under subpart 9.2.1, ADOT shall informally notify FHWA of its desire for
FHWA to withdraw assignment of its responsibilities. After informally notifying FHWA of its
desire, ADOT will provide FHWA written notice of its desire, including the reasons for
wanting FHWA to withdraw assignment of the responsibilities. Upon receipt of this notice,
FHWA will have 30 calendar days, unless extended by FHWA for cause, to determine
whether it will withdraw assignment of the responsibilities requested. In making its
determination, FHWA will consider the reasons ADOT desires FHWA to withdraw
assignment of the responsibilities, the effect the withdrawal of assignment will have on the
Program, amount of disruption to the project concerned, the effect on other projects,
confusion the withdrawal of assignment may cause to the public, the potential burden to
other Federal agencies, and the overall public interest.
PART 10. PERFORMANCE MEASURES
10.1
General
10.1.1 Both FHWA and ADOT have determined it is desirable to mutually establish a set of
performance measures to consider ADOT's administration of the responsibilities
assumed under this MOU.
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10.1.2 ADOT's attainment of the performance measures indicated in this part of the MOU will
be considered by FHWA during audits, as required by 23 U.S.C. 327(g).
10.1.3 ADOT shall collect and maintain all necessary and appropriate data related to the
attainment of performance measures. In collecting this data, ADOT shall monitor its
progress toward meeting the performance measures and include its progress in the self-
assessment summary described in subpart 8.2.5 of this MOU.
10.2 Performance Measures
10.2.1 The performance measures applicable to ADOT in carrying out the responsibilities it has
assumed under this MOU are as follows:
A. Compliance with NEPA. FHWA NEPA regulations. and other Federal environmental
statutes and regulations:
i.
Maintain documented compliance with procedures and processes set forth
in this MOU for the environmental responsibilities assumed under the
Program.
Maintain documented compliance with requirements of all applicable
Federal statutes and regulations for which responsibility is assumed (e.g.,
Section 106 of the NHPA, Section 7 of the ESA, etc.).
B. QNQC for NEPA decisions:
i.
Maintain and apply internal quality control and assurance measures and
processes, including a record of:
a.Legal sufficiency determinations made by counsel; this shall
include the legal sufficiency reviews of Notices of Intent and
Notices of Final Agency Action as required by law, policy, or
guidance;
b.Compliance with FHWA's and ADOT's environmental document
content standards and procedures, including those related to
QA/QC; and,
c. Completeness and adequacy of documentation of project records
for projects done under the Program.
C.
Relationships with agencies and the general public:
i.
Maintain communication among ADOT, Federal and State resource
agencies, and the public from the effective date of assumption of
responsibilities under this MOU.
ii.
Maintain effective responsiveness to substantive comments received from
the public, agencies, and interest groups on NEPA documents and
environmental concerns.
iii.
Maintain effective NEPA conflict resolution processes whenever
appropriate.
D. Increased efficiency and timeliness in completion of the NEPA process:
i.
Compare time of completion of environmental document approvals before
and after assumption of responsibilities under this MOU.
ii.
Report actual time to completion for key interagency consultations (e.g.,
Section 7 biological opinions, Section 106 resolution of adverse effects)
PART 11. AUDITS
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11.1
General
11.1.1 As required at 23 U.S.C. 327(g), FHWA will conduct audits of ADOT's discharge of the
responsibilities it has assumed under this MOU. During the first four (4) years, audits
will be the primary mechanism used by FHWA to oversee ADOT's compliance with this
MOU, ensure compliance with applicable Federal laws and policies, evaluate ADOT's
progress toward achieving the performance measures identified in Part 10, and collect
information needed for the DOT Secretary's annual report to Congress.
Pursuant to 23 U.S.C. 327(g)(3), each audit carried out under this MOU shall be carried
out by an audit team, consisting of members designated by FHWA in consultation with
ADOT. Such consultation shall include a reasonable opportunity for ADOT to review and
provide comments on the proposed members of the audit team.
11.1.2 Pursuant to 23 U.S.C. 327(c)(4), ADOT is responsible for providing FHWA any information
FHWA reasonably considers necessary to ensure that ADOT is adequately carrying out
the responsibilities assigned. ADOT will make documents and records available for review
by FHWA in conducting audits and shall provide FHWA with copies of any such documents
and records as may be requested by FHWA pursuant to the process identified in subpart
8.2.3. In general, all documents and records will be made available to FHWA at their
normal place of repository. However, ADOT will work with FHWA to provide documents
through e-mail, CD-ROM or mail to the extent it does not create an undue burden.
11.1.3 ADOT agrees to cooperate with FHWA in conducting audits, including providing access
to all necessary information, making all employees available to answer questions
(including consultants hired for the purpose of carrying out the DOT Secretary's
responsibilities), and providing all requested information (including making employees
available) to FHWA in a timely manner. Employees will be made available either in-
person at their normal place of business or by telephone, at the discretion of FHWA.
11.1.4 ADOT and FHWA Arizona Division Office will each designate an audit coordinator who
will be responsible for coordinating audit schedules, requests for information, and
arranging audit meetings.
11.1.5 Such FHWA audits will include, but not be limited to, consideration of ADOT's technical
competency and organizational capacity, adequacy of the financial resources committed
by ADOT to administer the responsibilities assumed, quality control and quality
assurance process, attainment of performance measures, compliance with this MOU's
requirements, and compliance with applicable Federal laws and policies in administering
the responsibilities assumed..
11.2
Scheduling
11.2.1 As provided at 23 U.S.C. 327(g), FHWA will conduct an annual audit during each of the
first (4) four years after the Effective Date. After the fourth year of ADOT's participation
in the Program, FHWA will monitor ADOT's compliance with the MOU, including the
provision by ADOT of financial resources to carry out the MOU, but will not conduct
additional audits under this Part. In the event the frequency of the audits is modified by
amendments to 23 U.S.C. 327(g), the frequency established by the statutory
amendments will control and apply to this subpart.
11.2.2 For each annual audit, the designated audit coordinators for FHWA and ADOT will work
to establish a general audit schedule within 180 calendar days of the Effective Date or
anniversary date of this MOU. The general audit schedule will include the dates that
20
FHWA will conduct the audit. To the maximum extent practicable, the general audit
schedule will identify all employees (including consultants) and documents and other
records that ADOT will make available, as requested by FHWA in support of the audit.
With respect to documents and other records, FHWA agrees to be as specific as
possible, although a general description of the types of documents will be acceptable.
The general schedule will include the time period for completing an annual audit from
initiation to completion (including public comment and responses to those comments),
which shall not exceed 180 calendar days, unless modified by amendments to 23 U.S.C.
327(g).
11.2.3 ADOT's audit coordinator shall make reasonable efforts to ensure all identified
employees (including consultants) are available to FHWA during the specified dates on
the general audit schedule. ADOT will also ensure necessary documents and records
are made reasonably available to FHWA as needed during the general audit schedule.
11.2.4 After the general audit schedule is established, the audit coordinators shall work to
establish specific audit schedules at least two (2) weeks prior to the scheduled audit.
The specific audit schedule shall include the dates, times, and place for which FHWA
will talk to ADOT's employees (including consultants) and review of documents and
records.
11.2.5 To the maximum extent practicable, the specific audit schedule will identify all
employees (including consultants) and documents and other records that ADOT will
make available to FHWA during the audit. Should FHWA determine that it needs access
to an employee, document or other record that is not identified in the specific audit
schedule, ADOT will make reasonable efforts to produce such employee, document or
other record on the specified dates.
11.3 Other Agency Involvement
11.3.1 The FHWA may invite other Federal or State agencies or Tribes as deemed appropriate
to assist FHWA in conducting an audit under this MOU by sitting in on interviews,
reviewing documents obtained by FHWA, and making recommendations to FHWA. The
FHWA's audit coordinator will advise ADOT's audit coordinator of FHWA's intent to
include other Federal or State agencies and the proposed role of such agencies in the
audit team. If FHWA invites another Federal or State agency to participate in the audit
team, the agency will be placed on the general and specific audit schedules. ADOT will
have a reasonable opportunity to review and comment on any proposed additional
member of the audit team.
11.4 Audit Report and Findings
11.4.1 Upon completing each audit, FHWA will transmit to ADOT a draft of the audit report and
allow ADOT a period of 14 calendar days within which to submit written comments to
FHWA. The FHWA will grant any reasonable request by ADOT to extend its deadline
to respond in writing to a draft audit report not to exceed a total review period of 30 calendar
days. The FHWA will review the comments provided by ADOT and revise the draft audit
report as may be appropriate. ADOT and FHWA may also meet and discuss the draft
report and ADOT's comments. If ADOT anticipates an additional meeting will be
beneficial, ADOT will notify FHWA audit coordinator prior to providing its written
comments so that such meeting may be timely scheduled. The FHWA will then prepare
the draft audit report for public comment.
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11.4.2 As required by 23 U.S.C. 327(g)(2). FHWA will make the draft audit report available for
public comment. In carrying out this requirement, FHWA will, after receipt and
incorporation of ADOT comments as provided in subpart 11.4.1, publish the audit report
in the Federal Register and allow a comment period of 30 calendar days. The FHWA
will then address and respond to the public comments by incorporating the comments
and response into the final audit report. The final audit report will be published in the
Federal Register not later than 60 calendar days after the comment period closes.
PART 12. TRAINING
12.1
ADOT may request and, subject to FHWA's resource availability, FHWA will provide
training with respect to the responsibilities being assigned to ADOT under this MOU.
Such training may be provided to ADOT by either FHWA or another Federal agency or
other parties, as appropriate. ADOT may also conduct its own training for staff and
consultants.
12.2
ADOT will continue to implement training necessary to meet its environmental
obligations. Prior to or within six (6) months of the effective date of the MOU, ADOT
will update its training program to reflect the responsibilities assumed under the
Program and this MOU. FHWA will remain available to provide assistance in the
assessment of training needs and development of training program elements;
however, ADOT will be solely responsible for the development and implementation of
its training program.
PART 13. TERM, TERMINATION AND RENEWAL
13.1 Term
13.1.1 This MOU has a term of five (5) years from the Effective Date.
13.2 Termination by FHWA
13.2.1 As provided by 23 U.S.C. 327(j)(1), FHWA may terminate ADOT's participation in the
Program, in whole or in part, at any time subject to the procedural requirements in 23
U.S.C. 327 and subpart 13.2.2 of this MOU. Termination may be based on ADOT's
failure to adequately carry out its responsibilities under this MOU including, but not
limited to:
A. persistent neglect of, or noncompliance with Federal laws, regulations, and policies;
B. failure to address deficiencies identified during the audit or monitoring process;
C. failure to secure or maintain adequate personnel and/or financial resources to carry
out the responsibilities assumed;
D. intentional non-compliance with this MOU; or
E. persistent failure to adequately consult, coordinate, or account for the concerns of
appropriate Federal, State, Tribal, and local agencies with oversight, consulting, or
coordination responsibilities under Federal environmental laws and regulations.
22
13.2.2 If FHWA determines that ADOT is not adequately carrying out the responsibilities
assigned to ADOT, then FHWA may:
A
provide ADOT written notification of its non-compliance determination detailing
a description of each responsibility in need of corrective action regarding an
inadequacy identified; and
B.
provide ADOT a period of not less than 120 calendar days to take such
corrective action as the FHWA determines is necessary to comply with this
MOU
13.2.3 If ADOT, after notification and the 120 calendar day period, fails to take satisfactory
corrective action, as determined by FHWA, subject to administrative/judicial review,
FHWA shall provide notice to ADOT of its determination of termination. Any
responsibilities identified to be terminated in the notice that have been assumed by
ADOT under this MOU shall transfer to FHWA.
13.3 Termination by ADOT
13.3.1 ADOT may terminate its participation in the Program, in whole or in part, at any time
by providing FHWA notice of its intent at least 90 calendar days prior to the date that
ADOT seeks to terminate and subject to such terms and conditions as FHWA may
provide In that event, FHWA and ADOT may develop a plan to transition the
responsibilities that ADOT has assumed back to FHWA so as to minimize disruption
to projects, minimize confusion to the public, and minimize burdens to other affected
Federal, State, and local agencies.
13.3.2 Any termination of assignment agreed to under a transition plan shall not be subject
to the procedures or limitations provided for in Part 9 of this MOU and shall be valid
as agreed to in the transition plan.
13.4
Validity of ADOT Actions
13.4.1 Any environmental approvals made by ADOT pursuant to the responsibilities ADOT has
assumed under this MOU shall remain valid after termination of ADOT's participation in the
Program or withdrawal of assignment by FHWA. ADOT shall remain solely liable and solely
responsible for any environmental approvals it makes pursuant to any of the responsibilities
it has assumed while participating in the Program.
13.5 Renewal
13.5.1 This MOU is renewable in accordance with 23 U.S.C. 327 and implementing
regulations, in effect at the time of the renewal. ADOT and FHWA agree to initiate the
renewal process at least 12 months prior to the expiration of this MOU.
PART 14. AMENDMENTS
14.1
Generally
14.1.1 All parts of this MOU may be amended at any time upon mutual agreement by both
FHWA and ADOT, pursuant to 23 CFR 773.113(4
14.2 Additional Projects, Classes of Projects and Environmental Review
Responsibilities
23
14.2.1 The FHWA may assign, and ADOT may assume, responsibility for additional projects
and additional environmental review responsibilities beyond those identified in Part 3
of this MOU, by executing an amendment to this MOU.
14.2.2 If ADO'T decides to request amendment of this MOU to add or withdraw responsibility
for projects or classes of projects, or environmental review responsibilities beyond
those identified in Part 3 of this MOU, such request shall be treated as an amendment
to ADOT's original application that was submitted to FHWA pursuant to 23 U.S.C.
327(b) and 23 CFR 773.113(b). In developing the application supplement, ADOT shall
identify the projects, classes of projects, and environmental review responsibilities it
wishes to assume or withdraw and make any appropriate adjustments to the
information contained in ADOT's original application, including verification of
personnel and financial resources.
24
andye L litindrickson
Deputy Administrator
Federal Highway Administration
IN WITNESS THEREOF, the parties hereto have caused this MOU to be duly executed in
duplicate as of the date of the last signature written below.
STATE OF ARIZONA
6t,
i1
Jo S. Halikowski
D ctor
A zona Department of Transportation
Dated:
FEDERAL HIGHWAY ADMINISTRATION
Dated
7/6 /2-9 1 6/
25