On August 10, 2005, the President approved Congress’s reauthorization of the nation’s surface transportation law, extending it through fiscal year 2009. The enactment of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEALU) capped a lengthy and, at times, contentious debate about priorities in surface transportation policy. The most visible disagreements involved funding formulas and high-profile projects, but environmental laws, including protections for historic and cultural resources, were also areas of considerable debate.
Preservation advocates were very active in the transportation reauthorization because there was much at stake for historic preservation [see Dan Costello, “Federal Highway Reauthorization Legislation: What’s at Stake for Historic Preservation,” Forum News 9, no. 4 (March/April 2003)]. Preservationists around the country rallied in response to the imminent threat to historic preservation protections under Section 4(f) and potential threats to Transportation Enhancements funding. The good news is that this advocacy paid off as preservationists were able to preserve important protections and valuable funding programs for historic resources. Here is an overview of how historic preservation interests fared in the reauthorization.
Protection for Historic Resources
Section 4(f) of the Department of Transportation Act of 1966 is the strongest federal law protecting historic places. It requires transportation agencies to safeguard historic resources—as well as public parks, recreation areas, and wildlife refuges—in transportation planning. Specifically, Section 4(f) prohibits the “use” of historic places for transportation projects unless: (1) there is “no prudent and feasible alternative,” and (2) the project includes “all possible planning to minimize harm” to the site.
As Congress geared up for reauthorization, it was clear that road builders and their allies in the administration and in Congress were committed to radically weakening this substantive protection for historic resources. However, preservation advocates were successful in communicating the importance of Section 4(f) to decision-makers on Capitol Hill. This effective lobbying effort laid the groundwork for the National Trust and its preservation partners to reach a consensus agreement with the American Association of State Highway & Transportation Officials (AASHTO) to amend Section 4(f) to streamline historic preservation reviews of transportation projects while, at the same time, maintaining Section 4(f)’s strong protection for historic places. This victory would not have been possible without the support of strong allies in Congress, particularly Sen. George Voinovich (R-OH), Sen. John Warner (R-VA), Sen. James Jeffords (I-VT), Sen. Lincoln Chafee (R-RI), and Rep. James Oberstar (D-MN).
The new provision, supported by the preservation community and adopted by Congress, would permit the satisfaction of Section 4(f) where a project has a de minimis impact on a historic property. The de minimis exemption has a number of safeguards, which were negotiated to limit its scope. For historic properties, the exemption can only be invoked when there is consensus through Section 106 that the project will have “no adverse effect” on historic properties or there are no historic properties affected at all. That determination will be made through the Section 106 process but, as a safeguard, must be based on: (1) involvement by consulting parties in reaching the determination, and (2) written concurrence from the state or tribal preservation officer that historic properties will not be harmed (and written concurrence by the Advisory Council on Historic Preservation if the ACHP is participating).
The new law also directs the Department of Transportation to adopt regulations within one year to clarify the definition of “prudent and feasible alternatives,” consistent with the Supreme Court’s long-standing interpretation in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971). The National Trust will follow this process closely to ensure that the regulations carry out the intent of the legislation.
When Congress enacted ISTEA in 1991, it created a new, flexible funding program to help communities improve the transportation experience by protecting their history, environment, and quality of life. Within the Surface Transportation program, 10 percent of funds are set aside for Transportation Enhancements activities. To be eligible for funding, a project must be related to surface transportation and must be one of the 12 eligible activities. The ones most relevant for preservation projects are:
- Acquisition of scenic easements and scenic or historic sites;
- Scenic or historic highway programs (including the provision of tourist and welcome center facilities);
- Historic preservation;
- Rehabilitation and operation of historic transportation buildings, structures, or facilities (including historic railroad facilities and canals);
- Archeological planning and research;
- Establishment of transportation museums.
The Transportation Enhancements program was again reauthorized in SAFETEA-LU with a positive addition for historic preservationists. Congress clarified under “Acquisition of scenic easements and scenic or historic sites” that the acquisition of historic battlefields is an eligible activity for Transportation Enhancements funds. Preservationists supported this provision and were pleased to see it enacted. The reauthorization of Transportation Enhancements and the clarification of the wide range of historic preservation activities eligible under this program prove that Congress recognizes the community benefits of this program and appreciates the high quality of historic preservation projects that have resulted from this funding.
One area where preservationists did not have success in the reauthorization bill was a proposed expansion to the Historic Bridge Program. Under current law, states intending to demolish a historic bridge must first make the bridge available for donation to states, localities, or responsible private entities who would agree to maintain the bridge and the features that give it its historic significance. The law restricts incentive grants that the states can make to new owners to an amount equal to the cost of demolishing the bridge, and the law also prohibits the use of Transportation Enhancements funds in addition to these demolition funds.
Preservationists supported a new provision that would have increased the grant amount that states could provide to new owners of bridges to up to 200 percent of the cost of demolition, potentially doubling the maximum allowable grant. The new provision would also have lifted the prohibition on the use of Transportation Enhancements funds by projects that have used the incentive grants for bridges. The Senate included this provision in its version of the surface transportation reauthorization bill, but it was not included in the House passed version. Ultimately, the provision was not included in the final bill developed by Senate and House conferees.
Overall, preservation supporters can breath a big sigh of relief with the 2005 reauthorization of federal surface transportation law. But it is important for the preservation community to remain informed about transportation policy developments in order to continue influencing national policies.
Even before preservationists begin gearing up for the next transportation reauthorization, there are transportation policy decisions that they should follow closely. As mentioned before, in response to the mandate in SAFETEA-LU, the Department of Transportation will be issuing guidance on the definition of “prudent and feasible alternatives,” consistent with the standard established in Citizens to Preserve Overton Park. Additionally, the Federal Highway Administration is expected to issue guidance on historic preservation activities that are eligible for Transportation Enhancements funding.
This will be an important process for preservationists to follow to ensure lasting success of this program. The enactment of SAFETEA-LU is one link in a continuous chain of transportation policy development in which preservationists need to be involved.
SURFACE TRANSPORTATION LAW TIMELINE
- 1991—Intermodal Surface Transportation Efficiency Act (ISTEA)
The enactment of ISTEA marked a policy shift from a pure focus on road building to a much broader view of surface transportation options designed to serve local priorities. These included programs that recognized the cultural aspects of our transportation system as well as the importance of transportation decision-making in creating livable communities. Specifically, ISTEA established the National Scenic Byways Program and the Transportation Enhancements program, which provided funding for 10 types of activities including historic preservation, bicycle and pedestrian facilities, and scenic beautification.
- 1998—Transportation Equity Act for the 21st Century (TEA-21)
In 1998 Congress reaffirmed its policy to provide broad surface transportation opportunities to communities in enacting TEA-21. This law reauthorized the Transportation Enhancements program and increased federal resources for enhancements activities by 40 percent. Congress also increased the list of eligible activities from 10 to 12 to include safety and educational activities for pedestrians and bicyclists and the establishment of transportation museums.
- 2005—Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU)
In 2005 Congress reauthorized Transportation Enhancements and clarified that acquisition of historic battlefields is an eligible activity within the existing category of acquisition of scenic easements and scenic or historic sites. SAFETEA-LU also includes consensus language on Section 4(f) that preservation advocates supported.
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Publication Date: May/June 2006