Fort McHenry, a National Monument and Historic Shrine in Baltimore, was once threatened by a highway project. However, the Section 4(f) review process ultimately led highway officials to drop the elevated bridge idea and instead build a tunnel under Baltimore Harbor – a project that came in on time and under budget. | Credit: 1flatworld via flickr creative commons

On Friday, December 4, President Obama signed into law the Fixing America’s Surface Transportation (FAST) Act, which will fund and authorize the nation’s transportation programs and policy for the next five years. The preservation community had to fight hard to defend protections for historic resources while also trying to add new avenues of funding for the protection of historic resources.

The final legislation is very much a mixed bag. The bill included a significant attack on section 4(f) that we had fought since it was first proposed in the Obama Administration’s GROW AMERICA proposal for transportation policy in the summer of 2014. Yet the bill also includes language—also included in the Administration’s GROW AMERICA Act—providing a significant expansion of funding that can be used to survey and map historic resources early in the transportation planning process, which the National Trust worked hard and successfully to secure. In addition, the bill includes several changes to railroad policy and a couple of common-sense tweaks to current protections for historic resources that should have little to no impact on the preservation community.

The Bad News: Section 4(f) Streamlining

The section 4(f) streamlining provision originally proposed by the Obama Administration and seized upon by Congressional Republicans as a bipartisan streamlining measure was included as section 1301 of the FAST Act. Under the provision, if the Department of Transportation (DOT) obtains concurrence from the Department of the Interior (DOI), the Advisory Council on Historic Preservation (ACHP) and the applicable state and/or tribal historic preservation officers, in a finding that avoiding the use of a historic property is not “feasible and prudent,” the provision would then eliminate the substantive section 4(f) mandate to use “all possible planning to minimize harm,” including the requirement to adopt the least harmful alternative that is feasible but does not completely avoid the use of a historic property. Unfortunately, this provision will not solve the problems complained of by DOT and will unnecessarily complicate the transportation project review process.

If there is a silver lining to this bad provision, it is this: this new optional process is so cumbersome that it will probably be rarely, if ever, used. Several DOTs have indicated this process will be less efficient than the long-established current section 4(f) practice. And if it is used, the preservation community will have the voices of the ACHP, DOI and the SHPO or THPO to defend historic resources and oppose a bad transportation project. We also expect executive branch guidance being developed by ACHP, Council on Environmental Quality (CEQ), and DOI to attempt to clarify that the substitution of section 106 for section the 4(f) minimization of harm standard should not be used unless the agencies (including the SHPO) actually agree that the 106 agreement substantively represents "all possible planning to minimize harm."

The Good News: Funding

We are hopeful that the new authorization for a significant expansion of funding available for mapping, survey and other transportation planning activities can be a game changer for the preservation community. This has been a legislative priority for the National Trust throughout this reauthorization process and we worked consistently, and successfully, to have it included in the final bill. As the preservation community knows well, the end of Transportation Enhancements three years ago meant the loss of a significant funding stream for transportation-related activities, including planning and survey of historic resources.

The key new planning provision (section 1312 of the FAST Act) authorizes the use of ALL Federal Transportation program funds (not just planning dollars) to assist Federal and state agencies, and Indian tribes to participate in the environmental review process for transportation programs and projects. Eligible activities under this authority include transportation planning, environmental review, capacity building by adding dedicated staff and personnel training, information gathering and mapping, and development of programmatic agreements. This provision should enable state, local and tribal preservation stakeholders to engage early and fully in transportation planning and project review. The provision requires DOT to issue guidance for its implementation within 180 days of enactment, and the National Trust will be actively engaged in working to shape this guidance.

Historic Railroad Resources

The bill includes two rather technical provisions relevant to preservation of historic railroad resources—one relating to section 4(f) and one relating to section 106.

Section 11502 of the FAST Act will revise the definition of "use" under section 4(f) to clarify that “improvements to, or the maintenance, rehabilitation, or operation of” a historic railroad line or property should not be considered a prohibited "use" that must be avoided at all costs under section 4(f). In general we support this approach, as it focuses on the safety and ongoing operation of existing rail lines (replacing damaged rail ties, for example) that are currently in use, and the literal terms of section 4(f) (i.e., prohibiting that use) don't make sense as applied to that kind of historic transportation equipment. Historic stations are an exception from this 4(f) exemption. The key word of concern to us in section 11502 is the reference to "improvements" to railroad properties, because it could be interpreted by railroads and agencies that demolition and replacement of a historic bridge is an "improvement." For this reason, we attempted, but were unsuccessful in including bridges and tunnels as exempted from the whole provision. We will however work to ensure regulations and other guidance construe the term "improvements" to be limited in a way that would not include demolition and replacement.

The other provision relating to railroads is Section 11504, which directs the DOT to work with ACHP to develop an administrative exemption from Section 106, analogous to the exemption developed for the Interstate highway system, where a list of especially significant elements was developed, which then became exempt-from-the-exemption. The ACHP has already begun working with Federal Railroad Administration (FRA) and Federal Transit Administration (FTA) on this issue, and the National Trust and National Council of State Historic Preservation Officers (NCSHPO) are also included in those deliberations.

Other preservation-related provisions in the bill include:

• A section 4(f) exemption for common post-1945 concrete or steel bridges and culverts. A programmatic exemption currently exempts these resources from individual review normally required under section 106, so this provision should have no impact on the preservation community.

• A provision directing the Secretary of Transportation to examine ways to modernize, simplify and improve the implementation of the National Environmental Policy Act (NEPA) and report findings back to Congress. The National Trust supports ways to improve the NEPA process, especially if it recognizes the importance of searchable databases and GIS mapping tools, and provided that the nation’s preservation laws remain intact.

Looking back at our work on this legislation, it was an uphill battle beginning when the Obama Administration first put forward in its GROW AMERICA Act the 4(f) streamlining proposal that ultimately become section 1301 of the FAST Act. This ill-conceived and flawed proposal was seized upon by House and Senate Committee Chairmen as an example of an Administration proposed bi-partisan approach to environmental streamlining.  In addition, the fact that there were never hearings or any real public deliberation on these issues by the relevant Committees, which would have provided a political forum to debate the issue, made the task of defeating the proposal nearly impossible.

Fortunately, we were able to fend off a more egregious attack on section 4(f) by a simple substitution of a section 106 agreement for section 4(f) protections, as well as a significant attack on the NEPA and section 106 process that would have required “substantial deference” by participating agencies to the recommendations and decisions of the transportation agency, and discouraging the consideration of comments regarding the “range of alternatives.”

We are hopeful that our success in securing a potential new funding stream for preservation-related transportation planning, including survey and mapping, will be seized upon by the preservation community.  More work remains as this bill is implemented.  We should also expect further attacks on 4(f) in five years when this authorization expires. In the meantime, the National Trust will continue to educate decision makers about section 4(f) and preservation-related transportation matters,We also hope to catalyze greater engagement by the broader preservation community in raising the profile of the importance of transportation planning as an integral part of our preservation agenda.

Adam Jones is the associate director for Government Relations and Policy, at the National Trust for Historic Preservation.