Forum Bulletin

Transportation Reauthorization Enacted into Law 

07-12-2012 00:00


After nearly three years of extensions, negotiations, drama and suspense, Congress finally reauthorized long overdue transportation programs on June 29, 2012. The National Trust for Historic Preservation, Preservation Action (PA), the National Conference of State Historic Preservation Officers (NCSHPO) and other preservation advocates have long been engaged in transportation advocacy efforts. The past two months, however, our efforts were especially focused as the House and Senate pushed to resolve a problematic Senate bill with a House bill that combined a simple extension of existing law with a very bad “environmental streamlining” title that included major threats to historic preservation. 

As the conference moved to resolution, the National Trust was intensely focused on striking two provisions from the House passed bill: section 607 which would have eviscerated the strongest federal preservation law, section 4(f) of the Transportation Act, and section 610, which would have for the first time permitted the disposal of historic properties without going through the traditional preservation review process.  In the end, both provisions were dropped in the final bill. 

The final bill reauthorizes transportation programs for 27 months at the cost of $120 billion and includes dramatic restructuring of transportation programs and processes as we know them. What led to this agreement, what caused the dramatic changes, and what implications does this have for historic preservation? 

The previous transportation law (SAFETEA-LU) officially expired in September 2009.  It has operated on a series of 9 temporary extensions ever since. A series of political complications, including a general lack of money and a push by some to radically restructure transportation programs, led to an unprecedented series of delays to develop the now enacted reauthorization. 

Preservationists knew that programs and protections would be threatened during the reauthorization process. The warning signs were all there – attacks on historic preservation review, including section 4(f) during previous reauthorizations, proposals for environmental, and as recently as last fall, repeated efforts to dismantle the popular Transportation Enhancements (TE) program, specifically targeting the historic preservation eligibilities. We knew we needed to be prepared for an all-out battle to protect historic preservation interests. However, the lack of anything similar to the legislative process we have all been used to was a significant challenge to effective action. 

Serious movement on reauthorization began last November 7, when Senate Environment and Public Works (EPW) Chairman Senator Barbara Boxer (D-CA) introduced S.1813 (MAP-21) a bi-partisan bill she had crafted with EPW Ranking Member Senator James Inhofe (R-OK). The bill reduced spending, consolidated programs, and focused on safety and reinvestment in aging infrastructure. It also left preservationists and environmentalists disappointed with changes to TE programs and multiple revisions to environmental review processes. This was just the beginning…

House Transportation & Infrastructure Committee Chairman John Mica (R-FL) introduced H.R. 7 on January 31, 2012, without any Democratic support. It was reported out of Committee on February 13, but it did not have enough support to be brought to the House floor for a vote. Secretary of Transportation Ray LaHood described the bill as the worst transportation bill in history. For preservationists, the bill was disastrous, and included undermining Section 4(f), harmful categorical exemptions for preservation review, eliminations of historic preservation for eligibility for TE funding, and substitution of state laws for preservation and environmental review. 

In April, House leadership unveiled and the House passed H.R. 4348, a bill that extended the (then) existing authorization, included a number of bad provisions from H.R. 7 and formed the substance for conference discussions with the Senate. The two most egregious attacks on historic preservation in H.R. 4338 were Section 607, which would have repealed the strong protective mandate for historic resources under Section 4(f) by authorizing a memorandum of agreement under Section 106 of the National Historic Preservation Act (NHPA) to satisfy Section 4(f), and Section 610. - which allowed for the disposal of historic properties without going through the preservation review process. 

The historic preservation community spent much of May and June defending historic preservation protections. The National Trust, along with PA and the NCSHPO  collaborated on a letter signed by more than 100 national, state and local organizations to bill conferees outlining concerns with the bill. Our groups engaged in numerous meetings with conferees and Congressional champions of historic preservation.  As the conference progressed, the National Trust also collaborated with National Parks Conservation Association and the Civil War Trust on a letter regarding House bill sections 607 and 610. We also had ongoing discussions with senior administration officials. Advocates throughout the country, including numerous statewide and local partners and Advisors, contacted their Members of Congress, providing critical information for case studies on how section 4(f) had protected local historic places [Fort Worth | Wisconsin], and spread the word to affiliated networks that urgent action needed to happen. 

Thanks to these efforts, we achieved our principal priority of ensuring that section 4(f) survived unchanged and section 610 was dropped. We were also pleased that the most significant provision for NCSHPO, a proposal for substitution of state law for federal reviews, including the NHPA, was significantly changed to require a study of state processes to see where duplication may be eliminated. Unfortunately, a set of other “streamlining” provisions, some of which were in the Senate bill, survived, including: allowing for categorical exclusions of projects located in an existing right of way, exemption of environmental review for advanced acquisition of property on anticipated transportation projects, and certain exclusions for environmental review during emergencies and natural disasters. 

The final conference report also substantially changed the TE program. One of the most significant changes is the elimination of the 10% mandatory set-aside for TE programs. This is largely due to the sharply constrained budget environment we are in, but it also reflects the need to develop a much broader political constituency to encourage Members of Congress to support these programs. Although historic preservation projects remain an eligible activity for funding, there are major changes that will transform the program. To begin with, TE will no longer exist as a separate program, but instead is part of a consolidated program called ‘Transportation Alternatives’.  The new eligible categories for funding include: 1) on road and off-road trail facilities, 2) safe routes for non-drivers, 3) abandoned railway corridors, 4) turnouts, overlooks, and viewing areas, 5) community improvement activities, and 6) environmental mitigation. Historic preservation is specifically mentioned under ‘community improvement activities,’ however, it will be imperative to clarify the specific activities to be included under this category as the Administration develops guidance for the new program. Transportation Alternatives will be competing with other programs including Recreational trails, Safe Routes to School, and the planning, design and construction of roadways in the right of way of former Interstate system routes for a smaller pot of money. Fortunately, an amendment offered by  Senators Ben  Cardin (D_MD) and Thad Cochran (R-MS) giving more local control for spending decisions remained intact in the final bill. Unfortunately, states may ‘opt-out’ of a portion of the funds and direct the dollars to go towards other transportation priorities. 

Our work to protect historic preservation in transportation policy is far from over. Given the short 27 month authorization of the new measure, we must begin now to act to ensure section 4(f) and other preservation programs survive the next reauthorization. Moving forward, a critical priority for the National Trust will be to work with our national, state and local preservation partners  to illustrate how section 4(f) has improved transportation planning, promoted economic development, and protected historic resources of great significance to local communities. In addition, the preservation community will need to identify the best ways to implement the newly authorized Transportation Alternatives and other programs. This will be the subject of a Forum Focus white paper this fall. We look forward to collaborating with our partners on these initiatives.

#congress #ForumBulletin #Section4f

Author(s):Tom Cassidy