The FHWA-Indiana Division office is negotiating the terms of a Section 106 Programmatic Agreement for federal-aid bridge projects in Indiana. The purpose of this programmatic agreement is to establish a historic bridge program in Indiana and expedite the Section 106 review process on most federal-aid bridge projects. Once a programmatic agreement is executed, the National Historic Preservation Act requirements are satisfied by following the process contained in the programmatic agreement, in lieu of the process established by the Section 106 regulations found at 36 CFR Part 800.

As a first step in the negotiations, the FHWA-Indiana Division is circulating the draft Programmatic Agreement to interested parties for comment. The general public may provide comments on the agreement by sending an e-mail to the address below. Additional opportunities for the public to comment will be provided as the agreement is developed. If you would like to submit comments on the draft agreement, please e-mail Matt Fuller at the Federal Highway Administration (Matt.Fuller@fhwa.dot.gov). We hope to receive all comments on the early draft by late March 2003 and be in a position to issue a revised draft agreement in the middle of Spring 2003.

WHEREAS the Federal Highway Administration (FHWA) has determined that funding bridge replacement or rehabilitation projects may have an adverse effect on bridges listed or determined eligible for listing in the National Register of Historic Places and has therefore consulted with the Advisory Council on Historic Preservation (the Council) and the Indiana State Historic Preservation Officer (INSHPO), pursuant to Section 106 of the National Historic Preservation Act (16 U.S.C. 470f), and implementing regulations (36 CFR Part 800); and

WHEREAS the Indiana Department of Transportation (INDOT), has participated in the consultation and has been invited to become a signatory in this Programmatic Agreement (Agreement); and

WHEREAS the Indiana Department of Transportation (INDOT), has completed an inventory of all potentially eligible historic bridges owned by County governments; and

NOW, THEREFORE, the FHWA, the Council, and the INSHPO agree to the following stipulations, which satisfy the FHWA's Section 106 responsibilities for bridge replacement and rehabilitation projects.

FHWA shall ensure the following stipulations are carried out:

1. APPLICABILITY

   This Agreement applies to the following types of Federal-Aid undertakings:

   1. Bridge replacement projects

   2. Bridge rehabilitation projects

   3. Bridge maintenance projects

   4. Bridge relocation projects

   5. Projects containing any or all elements of the above project types

   This agreement outlines procedures that will substitute for the Section 106 process outlined in the Council's regulations, 36 CFR Part 800. The ownership status of the bridge does not affect the applicability of this Agreement. If the expenditure of Federal-Aid funds for the above undertakings has the potential to adversely effect above ground historic properties other than a historical bridge, the undertaking shall be reviewed in accordance with 36 CFR Part 800.

2. PROJECTS EXEMPTED FROM FURTHER SECTION 106 REVIEW

   The following projects are exempt from Section 106 review provided the measures described are satisfied. For each project satisfying the exempt requirements, the National Environmental Policy document (Categorical Exclusion, Environmental Assessment, or Environmental Impact Statement) must clearly identify the applicable stipulation under item (II) in the Agreement and include documentation demonstrating that the required coordination, if any, was satisfactorily completed. Exempt undertakings are as follows:

   1. Projects that rehabilitate an existing bridge that is less than 50-years old shall be exempt from Section 106 review. Archaeology, if necessary, must be completed in consultation with INSHPO.

   2. Projects that replace an existing bridge that is less than 50-years old.

   3. Projects that bypass an existing bridge that is less than 50-years old. Archaeology, if necessary, must be completed in consultation with the INSHPO.

   4. Projects that rehabilitate historic bridges in a manner that is sensitive to the Secretary of the Interior's Standards for the Treatment of Historic Properties (Standards). The applicant will consult with the SHPO to determine if the rehabilitation is sensitive to the Standards. If there is a disagreement between the applicant and the INSHPO, then the dispute resolution stipulation (VI) of this Agreement will be followed to resolve the disagreement.

   5. Projects that are (1) a result of a management plan agreed to by the SHPO either as a part of this Agreement or another management plan and (2) the measures below are satisfied. The entity accepting ownership of the bridge will be responsible for completing and documenting the following measures:
      1. Photographs of the proposed site for relocation are submitted to the INSHPO and the INSHPO concurs with the relocation site.

      2. Archaeological studies, as required, are completed and coordinated for the new site with the INSHPO.

      3. Dismantling and reassembly plans are submitted to the INSHPO for review and concurrence. The rehabilitation should follow the approaches recommended in the Standards.

      4. Fully adequate records of the bridge at its existing location are prepared, in accordance with the Historic American Engineering Record (HAER) standards, or other suitable means developed through consultation with the INSHPO.

      5. A plaque will be erected near the new bridge location near the approaches. The plaque will describe the year the bridge spans were built, the original location of the structures, and the year the bridge spans were relocated. The plaque design will be submitted to INSHPO for review and concurrence.

3. COUNTY-OWNED HISTORIC BRIDGE PROGRAM
   1. Any county within the State of Indiana is eligible to participate in this stipulation of the Agreement, titled the County-Owned Historic Bridge Program (Program). Participation is voluntary. Stipulation III of this Agreement is applicable only to counties who enroll in the Program.

   2. The INSHPO and each county enrolled in the program will negotiate a list of Select Bridges from the inventory of historic bridges in their county. Factors that may be considered in negotiating the list include: historic significance, condition of the bridge, transportation needs, roadway alignment, hydraulic opening, local interest in the bridge, costs to rehabilitate/relocate, tort risk, safety of the traveling public.

   3. The County may elect to limit the number of Select Bridges to 15%, or a total of five (5), of the county's inventory of bridges on or eligible for inclusion in the National Register of Historic Places. The list of Select Bridges may be any combination of concrete, steel, timber, or stone bridges. The ((** ? **)) will update the inventory every 10 years.

   4. The County and the INSHPO will negotiate a management plan for each of the Select Bridges, through consultation. The management plan will include a description of the bridge, the results of the evaluation of the bridge, the documentation available for the bridge, the condition of the bridge, any posted restrictions, ADT, and the preferred treatment approaches. Potential treatment approaches include, in order of preference:
      1. Rehabilitate and maintain for vehicular use with subsequent preventative maintenance as needed.

      2. Rehabilitate the bridge and retrofit the structure, in consultation with the INSHPO, in order to carry an acceptable load, as determined by the county.

      3. Bypass the bridge and rehabilitate it, in consultation with the INSHPO, to serve pedestrian traffic.

      4. Relocate the bridge, in consultation with the INSHPO, within the County to serve vehicular traffic.

      5. Offer the bridge to surrounding counties to serve vehicular traffic.

      6. Offer the bridge to Indiana governmental entities and Indiana non-profit groups to serve pedestrian traffic in an alternate location.

   5. If no immediate alternate re-use is identified, the county will complete the following mitigation measures for Select Bridges:
      1. A plaque will be erected near the new bridge near the approaches. The plaque will include an image of the historic bridge, describe the year the bridge was built, and the year the bridge was removed. The plaque design will be submitted to INSHPO for review and concurrence.

      2. Fully adequate records of the bridge at its existing location are prepared, in accordance with the Historic American Engineering Record (HAER) standards, or other suitable means developed through consultation with the INSHPO.

   6. Counties may apply for Transportation Enhancement (TE) funds through the Indiana Department of Transportation to assist in the preservation (maintenance, rehabilitation, and relocation) of Select Bridges. Of the TE funds available for historic preservation, INDOT agrees to set-aside a fixed percentage of TE funds for historic bridge projects. The fixed percentage will be approximately the historical average of TE-Historic Preservation Funds used in the past on historic bridge rehabilitation projects. INDOT may adjust the percentage at their discretion. Counties enrolled in this program will be given additional weight to their scoring priority within the pool of applications received for proposed historic bridge rehabilitation projects. All TE projects are funded 80% on a reimbursement basis for eligible expenditures. The County would be responsible for the local match on projects they sponsor (i.e. rehabilitation, maintenance).

   7. Select Bridges that are accepted for TE funding will be exempt from Section 106 review per this Agreement provided Stipulations II.c and/or II.d are satisfied.

   8. For Federal-Aid Undertakings, non-Select County Bridges will be exempt from further Section 106 review under this Agreement. Avoidance alternatives during NEPA evaluation and Section 4(f) must still be considered (ie, Do Nothing, bypass, and rehabilitation). Non-Select bridges will be posted to INDOT's bridge marketing website when NEPA early coordination is initiated. Non-Select Bridges will continue to be marketed throughout project development and will be available up to the bid letting date for the replacement project. Any Indiana public agency or Indiana not-for-profit group stepping forward to accept ownership and liability of Non-Select Bridges will be eligible for TE funds, up to 80% reimbursed, for the relocation and rehabilitation of the structure. The relocated and rehabilitated Non-Select Bridges must be open to the general public. If no entity steps forward, Non-Select Bridges may be demolished provided there are no feasible and prudent alternative to avoid the use of the bridge and the following stipulations are implemented by the county:
      1. Fully adequate records of the bridge at its existing location are prepared, in accordance with the Historic American Engineering Record (HAER) standards, or other suitable means developed through consultation with the INSHPO.

      2. A plaque will be erected adjacent to the new bridge near the approaches. The plaque will include an image of the historic bridge, describe the year it was built, and the year it was removed. The plaque design will be submitted to INSHPO for review and concurrence.

4. INTENTIONALLY LEFT BLANK

5. POST REVIEW DISCOVERY

   In the event that one or more historic properties--other than an historic bridge-- are discovered or that unanticipated effects on historic properties for any project qualifying under this Agreement, the FHWA shall follow the procedure specified in 36 C.F.R. 800.

6. DISPUTE RESOLUTION

   Disagreement and misunderstanding about how this Agreement is or is not being implemented shall be resolved in the following manner:

   1. If the Indiana SHPO or any invited signatory to this Agreement should object in writing to the FHWA regarding any action carried out or proposed with respect to the to any project qualifying under this Agreement or implementation of this Agreement, then the FHWA shall consult with the objecting party to resolve this objection. If after such consultation the FHWA determines that the objection cannot be resolved through consultation, then the FHWA shall forward all documentation relevant to the objection to the Council, including the FHWA's proposed response to the objection. Within 45 days after receipt of all pertinent documentation, the Council shall exercise one of the following options:
      1. Provide the FHWA with a staff-level recommendation, which the FHWA shall take into account in reaching a final decision regarding its response to the objection; or
      2. Notify the FHWA that the objection will be referred for formal comment pursuant to 36 C.F.R. 800, and proceed to refer the objection and comment. The FHWA shall take into account the Council's comments in reaching a final decision regarding its response to the objection.

   2. The FHWA shall take into account any Council comment or recommendations provided in accordance with this stipulation with reference only to the subject of the objection. The FHWA's responsibility to carry out all actions under the Agreement that is not the subject of the objection shall remain unchanged.

7. AMMENDMENT

   Any signatory to this Agreement may request that it be amended, whereupon the parties shall consult to consider the proposed amendment. 36 C.F.R. 800 shall govern the execution of any such amendment.

8. TERMINATION

   Any party to this Agreement may terminate it by providing thirty days notice to the other signatories, provided that the parties will consult during the period prior to termination to seek agreement on amendments or other actions that would avoid termination. In the event of termination, the FHWA will comply with 36 CFR 800 with regard to individual undertakings covered by this Agreement.

9. EFFECT ON EXISTING AGREEMENTS

   The measures contained in this Agreement do not supercede provisions or stipulations contained in previously executed Memoranda of Agreement regarding the rehabilitation or replacement of historic bridges in Indiana.

10. FAILURE TO COMPLY WITH AGREEMENT

    In the event the FHWA does not carry out the terms of this Agreement, the FHWA will comply with 36 CFR 800 with regard to individual undertakings covered by this Agreement.

SIGNATORIES (required):

ADVISORY COUNCIL ON HISTORIC PRESERVATION

Signed by:________________________________ Date: ____________________________

FEDERAL HIGHWAY ADMINISTRATION

Signed by:________________________________ Date: ____________________________

Name and Title: John R. Baxter, P.E., Division Administrator

INDIANA STATE HISTORIC PRESERVATION OFFICER

Signed by:________________________________ Date: ____________________________

Name and Title: John R. Goss, State Historic Preservation Officer

INVITED SIGNATORY

INDIANA DEPARTMENT OF TRANSPORTATION

Signed by:________________________________ Date: ____________________________

Name and Title: J. Bryan Nicol, Commissioner