Laws & Regulations
It is PENNDOT's policy to develop timely transportation plans, programs and projects that seek to balance social, economic and environmental concerns. While seeking improved access, mobility and efficient movement of people and goods, PENNDOT also seeks to implement projects that improve the quality of life in Pennsylvania. Pennsylvania's historic towns, buildings, farms and bridges define Pennsylvania and, to many, are essential elements to a good quality of life. To the degree possible, PENNDOT seeks to protect Pennsylvania's historic heritage and especially to avoid effects to those historic properties listed in, or eligible for listing in, the National Register of Historic Places (NRHP). This obligation is codified in state and federal laws and regulations, the most significant of which are outlined in Chapter I of PennDOT's Cultural Resources Handbook (Publication 689), which also describes the principles, techniques and procedures for consideration of cultural resources in the development of our bridge and highway improvement projects.
National Historic Preservation Act of 1966 (16 USC 470), amended 1992
Section 106 of the National Historic Preservation Act of 1966 (NHPA) requires federal agencies to take into account the effects of their undertakings on historic properties, and to afford the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment. The process for fulfilling Section 106 is outlined in 36 CFR 800, the regulations issued by the ACHP. These regulations require the federal agency to consult with the State Historic Preservation Office (SHPO), which, in the Commonwealth of Pennsylvania, is the Pennsylvania Historical and Museum Commission (PHMC).
PennDOT receives funding from the Federal Highway Administration (FHWA), which must comply with Section 106 for all bridge and highway projects they fund in Pennsylvania. The FHWA has, in turn, delegated much of the process for implementing the Section 106 regulations to PennDOT through a Programmatic Agreement (PA) executed on March 18, 2010. As a result, Section 106 compliance is a key component of highway projects that PennDOT is involved in throughout the Commonwealth. These include traditional highway development and improvement projects, as well as projects receiving funds under the Transportation Alternatives set-aside program.
Section 110 of the NHPA specifies the obligations of federal agencies with historic properties under their jurisdiction or control. Section 110 also provides particular protection for National Historic Landmarks. Section 110 indicates that, "Prior to the approval of any Federal undertaking which may directly and adversely affect any National Historic Landmark, the head of the responsible Federal agency shall, to the maximum extent possible, undertake such planning and actions as may be necessary to minimize harm to such landmark, and shall afford the ACHP a reasonable opportunity to comment on the undertaking."
Section 4(f) of the U.S. Department of Transportation Act of 1966 (49 USC 303)
Section 4(f) of the U.S. Department of Transportation (USDOT) Act of 1966 offers protection for historic properties and publicly-owned parks, recreation areas, and wildlife or waterfowl refuges. However, unlike Section 106, Section 4(f) applies only to USDOT agencies, including FHWA. Section 4(f) states that the Secretary of Transportation can only approve a transportation program or project requiring the use of publicly-owned parks, recreation areas, and wildlife or waterfowl refuges and historic properties eligible for, or listed on the NRHP, if:
- There is no feasible and prudent alternative to using that property and the program or project includes all possible planning to minimize harm to the park, recreation area, refuge, or historic property resulting from the use; or
- The use, including any measures to minimize harm (such as any avoidance, minimization, or enhancement measures) would have a de minimis impact on the property.
PennDOT's Section 4(f) Handbook (Publication 349) provides greater detail on Section 4(f) and important differences between determining "effects", under Section 106, and "use" under Section 4(f).
National Environmental Policy Act of 1969 (NEPA)
NEPA requires federal agencies to identify and consider the significant environmental, cultural, and socioeconomic impacts of projects. Cultural resources are one of the resources evaluated during the NEPA process. NEPA establishes three categories of environmental review actions:
- Categorical Exclusions (CE)
- Environmental Assessments (EA)
- Environmental Impact Statements (EIS)
NEPA requires that the public and resource agencies be provided with the opportunity to comment on the identified environmental impacts of the project for EA and EIS level projects. Please refer to PennDOT's Design Manual 1B (Publication 10B) and the Environmental Policy page for more information on how PennDOT implements NEPA.
State History Code (Act 70, Title 37 PA Consolidated Statutes)
Section 507 of Act 70 requires PennDOT to "cooperate fully with the commission in the preservation, protection and investigation of archaeological resources" by notifying the Commission before undertaking any Commonwealth or Commonwealth-assisted permitted or contracted projects that may affect archaeological sites.
Section 508 of the Act requires PennDOT to consult the Commission, namely the PHMC, and seek their advice on possible alternatives to demolishing, altering, or transferring any property under its ownership or control that is, or may be, of historical, architectural, or archaeological significance. Section 508 also requires PennDOT to "initiate measures and procedures to provide for the maintenance by means of preservation, rehabilitation, or restoration of historic resources under their control or ownership that are listed on or are eligible for the Pennsylvania Register of Historic Places." The Pennsylvania register is synonymous with the listing of resources eligible for listing on the NRHP. Section 508 requires PennDOT to "instituted procedures and policies to assure that their plans, programs, codes, regulations, and activities contribute to the preservation and enhancement of all historic resources in this Commonwealth."
Section 510 requires PennDOT to consult the Commission "on the design and proposed location of any project, building, or other undertaking financed in whole or in part by the Commonwealth funds which may affect the preservation and development of a district, site, or building listed in or eligible for the Pennsylvania Register of Historic Places."
PennDOT has signed a Memorandum of Understanding (MOU) with the PHMC for review of projects under the State History Code, executed on October 12, 2011. The review process in the MOU is similar to that in the Section 106 PA.
Federal regulations and laws require federal agencies (like FHWA) to consult with federally-recognized Native American tribes and nations on projects or policies that may affect culturally sensitive or important places, objects or archaeological sites. There are currently 15 federally recognized tribes and nations with ties to Pennsylvania. Below you will find further information on the consultation process: