If your federal agency is planning rail infrastructure improvements, you may be subject to review under Section 106 of the National Historic Preservation Act – in which case, a couple of new pathways could be in your future.
In August, the Advisory Council of Historic Preservation (ACHP) issued a program comment that facilitates rail rights-of-way (ROW) projects that currently require a federal review to move forward. The program comment’s definition of ‘Project Sponsor’ is quite broad in identifying public or private entities who are eligible to receive federal financial assistance versus requiring a federal permit, license, or approval to carry out a proposed activity in rail ROW.
Rail entities and rail transit agencies will benefit from two approaches aimed at streamlining historic preservation reviews under Section 106, helping to move projects forward faster and limit consultation on lower-priority rail facilities by historic preservation agencies and organizations.
The Activities-Based Approach
The Activities-Based Approach is effective immediately, and is available to any federal agency with Section 106 responsibilities. It would exempt typical activities to maintain, improve, or upgrade rail transit properties in the ROW from the requirements of Section 106.
- Applicable even if the properties are more than 50 years of age or already determined eligible for the National Register
- Immediately effective as of August 17, 2018, the date the ACHP issued the final program comment
- The activities are listed in Appendix A of the program comment, but generally are related to routine maintenance and repair of railroad facilities within the ROW
The Property-Based Approach
The Property-Based Approach should be available on May 17, 2019, but it will only be available to project sponsors who opt in with a U.S. Department of Transportation (USDOT) operating agency (Federal Railroad Administration, Federal Transit Administration, or Federal Highway Administration).
It would allow a project sponsor to designate a short list of significant historic rail properties that would remain subject to Section 106.
- Project sponsors may opt to collaborate with a USDOT operating administration (FRA, FTA, or FHWA)
- All other rail transit properties in the ROW would be exempt from Section 106
- A project sponsor would be able to draft the list on the date implementing guidance is published (approximately May 17, 2019)
- A Project Sponsor’s list involves review by the State Historic Preservation Officer and FRA, FTA, or FHWA before becoming final
- Effective 12 months after the project sponsor submits the list to FRA, FTA or FHWA
How Can Rail Industry and Rail Transit Agencies Prepare?
Your current rail ROW project now depends on having an intimate familiarity with the requirements of a Section 106 review, as well as the implications and nuances of the new program comment.
I’ve learned the ins and outs of Section 106, helping author the FRA congressional study that led to the Fixing America’s Surface Transportation Act (FAST Act) requirement for the program comment. In 1995, ICF prepared similar lists of properties with national or exceptional importance on the Interstate Highway System in a precedent Section 106 exemption.
Do you have questions or insights about the ways the new measure could impact your current rail ROW projects as well as what this will mean for your regulatory compliance? Tell us what you think on Facebook, Twitter, or LinkedIn.