The exemption would be the fifth in 50 years and is the result of more than a decade of studies and Congressional hearings.
The Advisory Council of Historic Preservation (ACHP) and the Department of Transportation (DOT) have proposed a program comment to exempt effects of transportation-related undertakings within rail rights-of-way (ROW). Rail entities and rail transit agencies will benefit from two approaches outlined in the program comment aimed at streamlining historic preservation reviews whenever a Federal agency is involved. While the streamlining will help to move projects forward faster, it will limit consultation on less important, older rail facilities by historic preservation agencies and organizations.
Exemptions to the National Historic Preservation Act (NHPA) are rare. Since it was enacted in 1966, only four other exemptions have been made for linear resources. This exemption would be the fifth in 50 years and is the result of more than a decade of studies and Congressional hearings. A precedent for this type of action was first set in 2005 when a similar exemption was made for the Interstate Highway System. Congressional hearings in 2008 lead to the passage of the Passenger Rail Investment and Improvement Act (PRIIA). Congressional perception was that current historic preservation laws for improvements to rail infrastructure caused unnecessary delays and administrative burdens. PRIIA mandated the Secretary of Transportation study ways to streamline compliance with federal historic preservation laws for rail infrastructure projects.
The required study was conducted from 2010-2013 under direction of the Federal Railroad Administration (FRA) with ICF serving FRA as its sole consultant. The study made four recommendations including the Section 106 administrative exemption that is now being considered. In December 2015, the Fixing America’s Surface Transportation Act (FAST Act) authorized development of the Section 106 exemption. In 2016, ICF assisted FRA and the Federal Transit Administration (FTA) in developing the initial draft content and outreach to agencies and stakeholders. Also in 2016, ICF was FTA’s consultant to author “Historic Context Report for Transit Rail System Development.” While ICF is not currently working with the FRA or FTA on this exemption, now termed a “program comment,” ICF has been given permission to help impacted agencies and rail carriers better understand the coming changes.
How Can the Rail Industry Prepare?
The proposed program comment impacts rail ROW projects that currently require a Section 106 review to move forward. In the context of this proposed program comment, rail ROW is land and infrastructure developed and/or maintained for rail operations regardless of current ownership. Section 106 of the NHPA requires federal agencies working on projects that impact historic properties (properties that are either listed or eligible to be listed on the National Register of Historic Places) to give the ACHP an opportunity to provide input. While this review process was intended to protect historic sites from harm, it has had the unintended consequence of sometimes delaying urgently needed rail infrastructure improvements.
The draft comment outlines two different ways rail stakeholders can streamline the review process.
- Activities-based approach: This is available to all rail entities and rail transit agencies initiating rail ROW improvement projects. This approach enables agencies to move forward without a Section 106 review for activities that have little to no impact on historic properties. These activities include routine maintenance, safety and operations upgrades, capacity improvements within a rail ROW, and change in transportation use.
- Optional project sponsor-led property based approach: This is only available to those rail entities who choose to participate. The project sponsor is an entity that is either a) eligible to receive federal transportation related financial assistance or b) requires a federal permit, license or approval for an activity in rail ROW.
A project sponsor may develop, through consultation, a list of only the most important historic rail properties in their study area, and may even revisit existing National Register of Historic Places determinations. The rest of the rail ROW would be exempt from further Section 106 review.
As an author of the PRIIA study and rail transit historic context report, ICF is intimately familiar with the requirements of a Section 106 review as well as the implications of the proposed program comment. 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.