Does VDOT have to repair a historic brick retaining wall along U.S. Route 50, and if it does, must it follow federal historic-preservation standards?

Plain-English summary

Delegate Minchew asked about a small but historically significant structure: a brick retaining wall within VDOT's right-of-way along U.S. Route 50 near Aldie, located inside the Aldie Mill Historic District (listed on the Virginia Landmarks Register and the National Register of Historic Places). The wall may originally have been part of an adjacent historic building that is now privately owned. The question: must VDOT repair and maintain the wall? And if so, must the work follow federal historic-preservation standards under Section 106 of the National Historic Preservation Act?

Attorney General Mark R. Herring split the analysis.

(1) VDOT has discretion, not an obligation. The Supreme Court of Virginia held in Ord v. Fugate, 207 Va. 752, 759 (1967), that "the legislature has delegated broad powers to the highway officials of this state and has vested them with wide discretion in the discharge of their duties with respect to the construction, improvement, and maintenance of highways." The AG found nothing in federal or state law, regulations, or VDOT manuals that obligates VDOT to repair this particular wall. Absent a hazard, dangerous condition, or nuisance (none asserted in the question), the decision belongs to VDOT.

(2) If VDOT did decide to repair the wall, Section 106 of the NHPA (now codified at 54 U.S.C. § 306108) would only apply if the work involved a federal agency, federal funding (typically through the Federal Highway Administration), or federal permits. The wall lies within an "historic property" because the Aldie Mill Historic District is on the National Register. But the trigger for Section 106 review is federal involvement in the undertaking, not the historic status of the property itself. If VDOT used only state funds and needed no federal permits, Section 106 would not apply.

(3) When Section 106 does apply, the Section 106 process is the federal agency's responsibility (36 C.F.R. §§ 800.3-800.13). The process requires consultation with stakeholders to identify historic properties, assess effects, and seek ways to avoid or mitigate adverse effects. Once procedural requirements are met, "program decisions rest with the agency implementing the undertaking" (36 C.F.R. § 60.2). So whether the work must follow the Secretary of the Interior's Standards for Rehabilitation would be FHWA's call, not VDOT's. A 2016 Programmatic Agreement among FHWA, the Army Corps, the Virginia State Historic Preservation Officer, VDOT, and others may apply to particular undertakings, but the AG could not determine on the limited facts whether it would cover this wall.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The NHPA is now codified at Title 54 of the U.S. Code; the Section 106 implementing regulations and Programmatic Agreements have been amended periodically since 2016. Anyone evaluating a current question about federal historic-preservation review of state highway work should check current federal and state references.

Background and statutory framework

VDOT has broad statutory authority over highway construction, improvement, and maintenance. Section 33.2-317 (formerly § 33-46) confers wide discretion on highway officials, confirmed by Ord v. Fugate, 207 Va. 752, 759 (1967). VDOT's activities are regulated by Title 33.2 of the Virginia Code, Title 24, Agency 30 of the Virginia Administrative Code, various VDOT manuals, and federal authorities including Titles 23 and 49 of the U.S. Code and Code of Federal Regulations.

The National Historic Preservation Act (now codified at Title 54 of the U.S. Code, with § 306108 carrying what used to be Section 106 of the NHPA) requires federal agencies to "take into account the effect of [federal or federally assisted] undertaking[s] on any historic property" and afford the Advisory Council on Historic Preservation an opportunity to comment. The statute reaches only federal agencies; it does not create direct obligations on state agencies absent federal involvement.

"Historic property" under 54 U.S.C. § 300308 means any prehistoric or historic district, site, building, structure, or object on or eligible for the National Register, including related artifacts and records. The Aldie wall falls within the Aldie Mill Historic District and is therefore inside historic property for NHPA purposes.

"Undertaking" under 54 U.S.C. § 300320 means a project funded, in part or whole, under the direct or indirect jurisdiction of a federal agency, or carried out with federal financial assistance, requiring a federal permit, or subject to delegated state or local regulation. Routine state-funded maintenance is not an undertaking unless one of these federal triggers applies.

The Section 106 process is set out in 36 C.F.R. §§ 800.3 to 800.13. It is a consultative procedure that requires the lead federal agency to identify historic properties potentially affected, assess effects, and seek to avoid, minimize, or mitigate adverse effects. The decision after process completion rests with the implementing agency (36 C.F.R. § 60.2).

A 2016 Programmatic Agreement among FHWA, the Army Corps of Engineers (Norfolk District), the Tennessee Valley Authority, the Advisory Council on Historic Preservation, the Virginia State Historic Preservation Officer, and VDOT addresses transportation undertakings subject to Section 106 in Virginia. Programmatic agreements can replace the standard Section 106 procedures for the types of undertakings they cover (36 C.F.R. § 800.6(b)). Whether this PA covers retaining-wall repair was an open question on the facts the AG had.

Common questions

Q: Must VDOT repair a deteriorating historic wall in its right-of-way?
A: The AG concluded no, unless it presents a hazard or there is a specific legal or contractual obligation. Maintenance decisions within VDOT's right-of-way are committed to VDOT's discretion.

Q: Does federal historic-preservation law require VDOT to follow special standards?
A: Only if the work involves federal funds, federal permits, or other federal-agency involvement. Section 106 review attaches to the federal undertaking, not the property's historic status alone.

Q: Who decides what historic-preservation standards must be followed?
A: When Section 106 applies, the implementing federal agency (typically FHWA for highway work) decides whether to require compliance with the Secretary of the Interior's Standards for Rehabilitation.

Q: What if the wall is a hazard to traffic?
A: The opinion did not address that scenario because the requester did not present hazard facts. If the wall created danger, VDOT's general highway-maintenance duties would supply the framework.

Q: Could the locality or a private preservation group require VDOT to fix the wall?
A: The opinion does not address that question. Under the Dillon Rule, localities have only express or necessarily implied powers, and the AG found no Virginia statute creating an obligation on VDOT here.

Q: Does the National Register listing trigger anything by itself?
A: National Register listing makes the property "historic property" for NHPA purposes, but the protective procedures attach to federal undertakings affecting it, not to the listing alone.

Citations and references

Virginia statutes:

• Va. Code Ann. § 33.2-317 (highway officials' authority; formerly § 33-46)
• Va. Code Ann. § 2.2-505 (AG advisory opinion authority)

Federal statutes and regulations:

• 54 U.S.C. § 300308 (definition of historic property)
• 54 U.S.C. § 300320 (definition of undertaking)
• 54 U.S.C. § 306108 (Section 106, formerly NHPA § 106)
• 36 C.F.R. §§ 800.1 to 800.13 (Section 106 implementing regulations)
• 36 C.F.R. § 60.2 (program decisions rest with implementing agency)

Cases:

• Ord v. Fugate, 207 Va. 752 (1967)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2016/16-058-Minchew---VDOT-retaining-wall---issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

November 10, 2016

The Honorable J. Randall Minchew
Member, Virginia House of Delegates
Post Office Box 385
Leesburg, Virginia 20178

Dear Delegate Minchew:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You ask whether the Virginia Department of Transportation ("VDOT") is required to repair and maintain an historic brick retaining wall (the "Structure") located along U.S. Route 50. If repair and maintenance are required, you further ask whether the work must conform with the Secretary of the Interior's Standards for Rehabilitation under Section 106 of the National Historic Preservation Act of 1966 (the "NHPA").

Background

You have related that the Structure is within VDOT's right-of-way in or near the town of Aldie,[1] located within the Aldie Mill Historic District[2] and that it originally may have been part of an adjacent historic building that is now privately owned. You have not indicated that the Structure creates a hazard to the public or a dangerous condition to motorists, or that it is a nuisance.

Applicable Law and Discussion

Absent a statute or regulation to the contrary, any decision about maintenance or repair within a VDOT right-of-way is within VDOT's exclusive administrative powers. The Supreme Court of Virginia has specifically held that, "the legislature has delegated broad powers to the highway officials of this state and has vested them with wide discretion in the discharge of their duties with respect to the construction, improvement, and maintenance of highways."[3] We have discovered nothing in any applicable federal or state laws, regulations, or manuals that specifically obligates VDOT to restore the Structure.[4]

Further, there is nothing contained in the NHPA that obligates VDOT, as a state agency, to repair or maintain the Structure. Section 306108 [formerly Section 106] of the NHPA applies only when a federal agency is involved, directly or indirectly, with an undertaking affecting historic property.[5] The Structure lies within the Aldie Mill Historic District, which makes it part of an "historic property" for purposes of the NHPA.[6] The repair and maintenance of the Structure would be considered an undertaking under the NHPA where such work involves a federal agency, federal funding, or federal permitting.[7] Therefore, if VDOT, in its discretion, were to replace or maintain the Structure, § 306108 [formerly Section 106] of the NHPA would apply only if such repair or maintenance were accomplished with the use of federal funds, in this case funds provided by the Federal Highway Administration (the "FHWA") or required federal permits.

The "Section 106 process"[8] is the procedure used to outline how federal agencies comply with the requirements of § 306108 [formerly Section 106] of the NHPA.

The [S]ection 106 process seeks to accommodate historic preservation concerns with the needs of Federal undertakings through consultation among the agency official and other parties with an interest in the effects of the undertaking on historic properties, commencing at the early stages of project planning. The goal of consultation is to identify historic properties potentially affected by the undertaking, assess its effects and seek ways to avoid, minimize or mitigate any adverse effects on historic properties.[9]

Once a federal agency has complied with the procedural requirements of the Section 106 process, it can proceed with any course of action it believes to be appropriate with respect to the undertaking.[10] Such course of action may or may not include a FHWA requirement that VDOT's work conform with the Secretary of the Interior's Standards for Rehabilitation.[11]

Conclusion

For the foregoing reasons, it is my opinion that, under the facts you have presented, VDOT is not required to repair and maintain the Structure, and any decision about this matter is within VDOT's sole administrative discretion. It is my further opinion that if VDOT makes a discretionary decision in the future to repair the Structure, and federal funds or federal permits are involved, any decisions to require compliance with federal requirements for historic preservation must be made by the FHWA.

With kindest regards, I am

Sincerely yours,

Mark R. Herring
Attorney General

[1] Based on the facts presented, it is unclear whether the Structure is entirely within the VDOT right-of-way and whether the Structure is owned by VDOT.

[2] The Aldie Mill Historic District was included on the Virginia Landmarks Register on June 2, 1970, and the National Register of Historic Places on September 15, 1970. See http://www.dhr.virginia.gov/registers/RegisterMasterList.pdf.

[3] Ord v. Fugate, 207 Va. 752, 759 (1967) (citing VA. CODE ANN. § 33-46, now replaced by § 33.2-317 (2014)).

[4] VDOT's activities with respect to the construction, maintenance, and repair of its highways are regulated by Title 33.2 of the Code of Virginia; Title 24, Agency 30 of the Virginia Administrative Code; various VDOT manuals; Titles 23 and 49 of the United States Code; and Titles 23 and 49 of the Code of Federal Regulations.

[5] "The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, shall take into account the effect of the undertaking on any historic property. The head of the Federal agency shall afford the [Advisory] Council [on Historic Preservation] a reasonable opportunity to comment with regard to the undertaking." 54 U.S.C. § 306108.

[6] "[T]he term "historic property" means any prehistoric or historic district, site, building, structure, or object included on, or eligible for inclusion on, the National Register, including artifacts, records, and material remains relating to the district, site, building, structure, or object." 54 U.S.C. § 300308.

[7] "[T]he term "undertaking" means 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 Federal agency; (2) those carried out with Federal financial assistance; (3) those requiring a Federal permit, license, or approval; and (4) those subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency. 54 U.S.C. § 300320.

[8] 36 C.F.R. §§ 800.3-800.13 (2015).

[9] 36 C.F.R. § 800.1 (2015).

[10] 36 C.F.R. § 60.2 (2015). "While Advisory Council comments must be taken into account and integrated into the decision making process, program decisions rest with the agency implementing the undertaking." Id. It should be noted that a Programmatic Agreement Among the Federal Highway Administration, the U.S. Army Corps of Engineers, Norfolk District, the Tennessee Valley Authority, the Advisory Council on Historic Preservation, the Virginia State Historic Preservation Officer, and the Virginia Department of Transportation Regarding Transportation Undertakings Subject to Section 106 of the National Historic Preservation Act of 1966, was entered into in August 2016. The Section 106 process allows a federal agency to enter into a memorandum of agreement with its consulting parties, and a memorandum of agreement created in accordance with the procedures of the Section 106 process will govern the particular undertaking and all of its parts. See 36 C.F.R. § 800.6(b) (2015). Without more information we are unable to determine at this time whether this Programmatic Agreement would apply to the repair and maintenance of the Structure.

[11] The Secretary of the Interior's Standards for Rehabilitation have been used by Federal agencies to guide them in carrying out their historic preservation responsibilities. See W. BROWN MORTON III ET AL., THE SECRETARY OF THE INTERIOR'S STANDARDS FOR REHABILITATION & ILLUSTRATED GUIDELINES FOR REHABILITATING HISTORIC BUILDINGS, at v (U.S. Department of the Interior, National Park Service Heritage Preservation Services 1997).