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Sample Programmatic Agreement

Programmatic Agreement
Between
The Federal Highway Administration
The New Jersey Department of Environmental Protection
For the Federal Recreational Trails Program

The Federal Highway Administration, New Jersey Division, hereinafter FHWA, and the New Jersey Department of Environmental Protection, hereinafter NJDEP, have developed this Programmatic Agreement, hereinafter PA, to outline the policy and procedures for environmental processing of certain Class II Categorical Exclusions, hereinafter CE, actions pursuant to the National Environmental Policy Act, hereinafter NEPA, as defined in 23 CFR §771.117 (as amended), which normally are found to have no significant social, economic, or environmental effects.

The FHWA and the NJDEP have additionally developed this PA to outline the policy and procedures to cover State Historic Preservation Office, hereinafter SHPO, Section 106 consultation of the National Historic Preservation Act, hereinafter NHPA, of 1966, and implementing regulations of 36 CFR Part 800 (64 FR 27071-27084).

The FHWA hereby concurs in advance, on a programmatic basis with NJDEP's designation that those types of projects listed in Stipulations 1 and 2 herein, and which satisfy the conditions and criteria in Stipulation 3 herein, will not result in significant environmental impacts, and are therefore categorically excluded from the requirement to prepare an Environmental Assessment (EA) or Environmental Impact Statement (EIS) pursuant to the NEPA as referenced above.

The FHWA also hereby concurs in advance, on a programmatic basis with NJDEP's designation that those types of projects listed in Stipulation 1 herein only, and which satisfy the conditions and criteria in Stipulation 3 herein, will have very limited or no effects on historic properties pursuant to the NHPA as referenced above, and therefore do not require coordination of SHPO consultation pursuant to Section 106 of the NHPA, subject to the following:

  1. Any undertaking which may cause or which has resulted in public controversy relative to historic preservation shall be submitted to the SHPO prior to project execution.

  2. This PA is in effect for Section 106 consultation of the NHPA only, and will not preclude the provisions of the New Jersey Register of Historic Places Act, hereinafter NJRHPA, N.J.S.A. 13:1B-15.128 et seq., Subchapter 7 Section 7:4-7.1 Application procedure for encroachment authorization.

As outlined in this PA, the NJDEP will determine and certify that an activity will not result in significant environmental impacts, and notify FHWA of its findings.

WHEREAS, the NJDEP administers federally funded Recreational Trails Program projects throughout the State of New Jersey as authorized by 23 U.S.C. 206; and

WHEREAS, the activities that are eligible for Federal funding through the NJDEP administered Recreational Trails Program were established in the FHWA April 1, 1999 Guidance and the DEP application requirements; and

WHEREAS, the Division Administrator, FHWA, is the "Agency Official" responsible for compliance with the NEPA and implementing regulations (23 CFR §771.117); and

WHEREAS, the Division Administrator, FHWA, is the "Agency Official" responsible for compliance with Section 106 of the National Historic Preservation Act (NHPA) of 1966, as amended (16 USC 470 et. seq.) and implementing regulations (36 CFR Part 800 as amended); and

WHEREAS, the Recreational Trails Program is designed to provide and maintain recreational trails for both motorized and nonmotorized recreational trails use, including pedestrian uses (hiking, running, wheelchairs), bicycling, in-line skating, equestrian uses, cross-country skiing, snowmobiling, off-road motorcycling, all-terrain vehicle riding, four-wheel driving, or using other off-road motorized vehicles. FHWA has determined that given the nature of the Recreational Trails Program, the fact that these activities are in general keeping with those of the 23 CFR §771.117 (d) and as such considered categorical exclusions; and

WHEREAS, the Recreational Trails Program Legislation (23 U.S.C. 206, Section (h)(2)) exempts the program from the requirements of Section 4(f) of the Department of Transportation Act of 1966 (23 U.S.C. 138; 49 U.S.C. 303); and

WHEREAS, the FHWA has determined that certain Recreational Trails Program projects constitute "undertakings" which may result in limited or no effect in the character or use of historic properties and has included these projects in this PA. Consultation with the SHPO and Advisory Council on Historic Preservation, hereinafter ACHP, pursuant to 36 CFR §800.13 will occur as established in stipulation two (2) and three (3) herein; and

WHEREAS, the Recreational Trails Program is consistent with the statewide and applicable long-range transportation plans and Metropolitan Planning Organizations Transportation Improvement Programs and State Transportation Improvement Programs.

NOW, THEREFORE, the FHWA, and the NJDEP agree to the following stipulations in order to satisfy FHWA's NEPA and Section 106 of the NHPA consultation responsibilities for NJDEP administered recreational trails projects. If the projects meet the stipulations herein, no further documentation to satisfy NEPA and/or Section 106 of the NHPA is necessary.

STIPULATIONS

Stipulation 1

It is understood that by the nature of the activities listed below, there are no noise, air quality, sole source aquifer, historic properties, wetlands, endangered species or right-of-way issues. The following nine activities may be designated as CEs under this agreement pursuant to the NEPA without further approval or documentation, provided they do not cause any impacts listed in Stipulation 3 herein.

It is also understood that by the nature of these activities, the following nine activities will have very little or no effect on cultural resources, and therefore do not require coordination of SHPO consultation pursuant to Section 106 of the NHPA, provided they do not cause any impacts listed in Stipulation 3 herein.

Based on the above, FHWA is pre-approving all Recreational Trails projects meeting the pre-defined set of conditions under items 1 through 9 below pursuant to the NEPA and the NHPA:

  1. trail planning and design work (as part of the administrative allotment);
  2. purchase of trail maintenance equipment, materials, and supplies (i.e., mowers, tractors, shovels, hammers, etc.);
  3. renovation/restoration of trail and access;
  4. regrading of trail and/or parking;
  5. striping/restriping;
  6. debris removal;
  7. educational materials;
  8. connector trails within boundaries of existing property;
  9. "in-kind" repair of signs, kiosks, markers, bridges, fences, guardrails, retaining walls and berms.

Stipulation 2

It is understood that by the nature of these activities, there are no noise, air quality, sole source aquifer, wetlands, endangered species or right-of-way issues. The following eight activities may also be designated as CEs under this agreement pursuant to the NEPA without further approval or documentation, provided they do not cause any impacts listed in Stipulation 3 herein.

It is understood, however, that if any of the following eight activities listed below occurs in/on/or next to a historic property, coordination with the SHPO for Section 106 consultation of the NHPA must occur prior to authorization.

The FHWA, therefore, is pre-approving all Recreational Tails Program projects meeting the pre-defined set of conditions under items 1 through 8 below pursuant to NEPA requirements only:

  1. bridge rehabilitation/replacement;
  2. signage, kiosks, and markers replacement/installation;
  3. upgrading the trail and or parking lot from dirt to stone/woodchips, or stone/woodchips to asphalt/concrete;
  4. fencing, guardrails, retaining walls, berms replacement/installation;
  5. drainage;
  6. landscaping;
  7. Compliance under the Americans with Disabilities Act (ADA) including the following:
    1. ramps;
    2. railing;
    3. re-surfacing (to asphalt or boardwalk);
    4. parking and trail access;
    5. signage;
    6. port-a-potties;
  8. permanent installation of ancillary facilities including the following:
    1. port-a-potties;
    2. bike racks;
    3. lighting;
    4. benches;
    5. trash receptacles;
    6. course design features (jumps, water hazards, par course equipment, picnic benches).

Stipulation 3

A proposed project must be individually approved by FHWA pursuant to the NEPA and the NHPA when a project requires/involves any of the following eight items:

  1. acquisition of property;
  2. new trail on new alignment;
  3. adverse-effect finding from SHPO;
  4. environmental permits;
  5. new bridge construction;
  6. endangered species;
  7. hazardous materials;
  8. air quality conformity impacts.

If any one of the items above applies, the NJDEP and the applicant must submit a CE or other environmental document, as appropriate, to FHWA for individual approval, and/or coordinate with the SHPO for Section 106 consultation of the NHPA.

ADMINISTRATIVE CONDITIONS

  1. Applicability. This agreement applies to all recreational trail projects that are administered through the NJDEP and funded by the FHWA.

  2. Disputes. It is the intent of the FHWA to become actively involved in the resolution of disagreements pertinent to findings of Section 106 eligibility and effects should they arise.

  3. Professional Qualifications. All historic preservation work carried out pursuant to this agreement will be performed by or under the direct supervision of a person or persons meeting the Secretary of the Interior's Qualifications Standards, 48 FR 44738-9, for the discipline(s) required to complete the necessary work.

  4. Monitoring. The FHWA may monitor any activities carried out pursuant to this agreement. NJDEP will cooperate with the FHWA in carrying out these monitoring and review responsibilities.

  5. Amendments. Any party to this agreement may request that it be amended.

  6. Termination. Any party to this agreement may terminate it by providing 30 days written notice to the other parties, provided that the parties will consult during the period prior to the termination to seek agreements on amendments or other actions that would avoid termination.

  7. Default. In the event that the FHWA or NJDEP cannot carry out the terms of this agreement, the FHWA will comply with 23 CFR §771.

  8. Regulatory Revisions. In the event that revised regulations are promulgated, it is the intent of the signatories of this agreement to continue to allow NJDEP and/or its consultants to independently conduct the work required in the equivalent provisions of the new regulations on behalf of the FHWA and to consult to amend this agreement accordingly.

  9. Reevaluation. The FHWA and NJDEP will from time to time reevaluate the attached list of undertakings for possible new inclusions and/or deletions.

  10. Unusual Circumstances. Any action which normally would be classified as a CE but could involve unusual circumstances will require the Administration, in cooperation with the applicant to conduct appropriate environmental studies to determine if the CE classification is proper CFR 771.117(b). Such unusual circumstances include:

    1. Significant environmental impacts;
    2. Substantial controversy on environmental grounds;
    3. Significant impact on properties protected by section 4(f) of the DOT Act or Section 106 of the NHPA
    4. Inconsistencies with any Federal, State, or law, requirement or administrative determination relating to the environmental aspects of the action.

FEDERAL HIGHWAY ADMINISTRATION

_________________________________________
Dennis L. Merida, P.E.
Division Administrator

_______
Date

 

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION

_________________________________________
James Hall
Assistant Commissioner
Natural and Historic Resources
Deputy State Historic Preservation Officer

_______
Date



Updated: 02/12/2014
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