Preservationists will be in for a fight during the next Congress, as the House and Senate prepare to reauthorize a surface transportation policy bill. Within that bill will be several provisions that specifically address environmental and historic preservation concerns. Here’s what’s at stake, and what you can do.

Special Protection for Historic Places

In the Department of Transportation Act of 1966, Congress created a special protection for historic places, responding to the frightful losses that resulted from the excesses of the Interstate System. It’s called Section 4(f) and directs transportation agencies to give the protection of historic properties (as well as public parks, recreation areas, and wildlife refuges) paramount consideration in transportation planning. Transportation projects that required the use of these protected sites may not be approved unless (1) there is no feasible and prudent alternative to using the site and (2) the project includes all possible planning to minimize harm.

Road builders and their transportation agency allies are committed to weakening this substantive, effective protection for historic places when Congress reauthorizes the federal-aid highway program this year.

In 1998, when the highway program was last reauthorized, an eleventh-hour, stealthy effort to delete historic sites from the protection of Section 4(f) was thwarted by historic preservation’s great champion, the late Senator John Chafee of Rhode Island.

Last year the chairman of the House’s Transportation and Infrastructure Committee, Don Young of Alaska, introduced and held hearings on H.R.5455, a bill that would have greatly weakened historic preservation protections —especially those established by Section 4(f)—and other environmental reviews for road projects.

Politicians are angry and frustrated because road projects take too long to build. Politicians are buying into the myth, promulgated by road builders, that reviews designed to protect the environment and historic places cause big delays. Yet the Federal Highway Administration’s own study confirms that there are multiple causes of delays and ranks environmental reviews far down on its list.

A report provided by the United States General Accounting Office (GAO) to Congress in September 2002 found that the much touted “studies” that road builders cite to justify a desire for weakening environmental and historic preservation reviews are based on anecdotal information and officials’ memories, because no federal or state baseline information exists on how long highway projects really take to build. The GAO also reported that many states have already undertaken initiatives to improve completion time of highway construction projects, including finding ways to reduce the time required to obtain environmental and historic reviews.

The National Trust strongly opposes any legislative provision that will weaken the substantive protection afforded historic places by Section 4(f) and other environmental laws. The Trust applauds efforts by states to improve and streamline their environmental and historic reviews and encourages all states to do the same.

There is no need to change the existing rules when what’s really needed is a commitment to follow the rules correctly the first time they are applied. The best reviews are those that are done right the first time—they carefully examine landscapes and identify potential problems long before lines are drawn on maps, and they seek comments and involvement from citizens early in the planning process. These are the keys to sound environmental reviews and the only guaranteed path to speedy and economical completion of road projects.

A Problem of Interpretation

In discussions with state transportation agencies that are leaders in respecting historic places, the National Trust has learned that another problem arises from the Federal Highway Administration’s approach to Section 4(f). The agency often takes the position that 4(f) means avoid historic places at all costs, which leads to some unfortunate alternatives involving the pointless loss of businesses and homes in the effort to avoid the historic site. Yet, the message of the law is clear—don’t use the historic property unless there is “no prudent and feasible alternative.” And state transportation agencies and historic preservation advocates frequently reach an acceptable compromise that minimizes harm to the historic resource and still allows the project to go forward. But federal officials often veto such compromises because of the agency’s “avoid at all costs” approach.

The fault lies not with the law but with its implementation. If need be, Congress can craft the details of an administrative remedy and order the Federal Highway Administration to adopt it—without tampering with the strong and still much-needed protection that Section 4(f) affords historic places. The National Trust is prepared to suggest language for such an amendment.

Transportation Enhancements Program

The idea that a small portion of highway money ought to be spent enhancing the community benefits of transportation investments grew out of the work of the Coalition for Livable Communities and became law in the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA). Its successor—the Transportation Equity Act for the 21st Century (TEA-21)—is now up for reauthorization.

Today, state transportation agencies are required to set aside a small amount of federal highway allocations for enhancements such as bike and pedestrian trails; landscaping and other scenic improvements; historic preservation; archeology; and restoration of historic transportation facilities, scenic and historic roads, and bridges. Congress intended that this should lead to a whole new way of planning highway projects.

Transportation Enhancement Activities (TEAs) have become the major source of direct federal financial support for transportation-related historic preservation work. Many of the 3,500 or so preservation projects aided by the enhancements program would never have been completed without this program.

The program is very popular among citizens, local government officials, and many state transportation agencies. Still, its future is not assured and the continued eligibility of historic preservation as part of the program will require vigorous advocacy.

Furthermore, the National Transportation Enhancements Clearinghouse data dealing with historic preservation enhancements suggest that many states are doing well with renovation of historic transportation facilities, such as railroad depots, but are not making substantial use of the other historic preservation activities. Indeed many states that claim a lack of funds for protecting and enhancing historic resources fail to make full use of this funding source. To clarify the broad potential of this program, the National Trust is proposing an amendment to the reauthorization that would deem projects associated with heritage areas, historic byways and trails, the Underground Railroad, and other transportation-related episodes in American history as eligible historic preservation activities under the program.

A New Historic Bridge Program

The Historic Bridge Program (Section 144(o) of Title 23) states that it is “in the national interest to encourage the rehabilitation, reuse, and preservation of bridges significant in American history, architecture, engineering, and culture.” But the provisions of the existing program are woefully inadequate and cannot contribute meaningfully to saving more historic bridges. While there have been some spectacular restorations, evidence suggests that more than half of the historic bridges inventoried by the states and found to be eligible for listing in the National Register have already been destroyed.

Many significant historic bridges are so structurally deficient that they can no longer carry vehicles, and Section 144(o) encourages state transportation agencies to find new owners who will maintain those structures as bicycle and pedestrian facilities. The incentives, however, that states can offer new owners are inadequate and must be strengthened. The National Trust’s proposed amendments to the Historic Bridge Program would increase the payment states can make to new owners from 100 percent of estimated demolition costs to 200 percent. As an added incentive, it would also remove the provision in existing law that prohibits the use of transportation enhancement funds in addition to demolition funds.

States are presently required to inventory their historic bridges, and these inventories should be expanded to include management and preservation plans. The Federal Highway Administration can help state agencies and others by distributing “best practices” information and sponsoring a competitive demonstration program. There should also be a separate funding source or combination of sources for the maintenance, repair, and rehabilitation of historic bridges.

National Scenic Byways

The National Scenic Byways program (which includes historic byways) may well be the single most popular and cost-effective program to come out of ISTEA, and it should be reauthorized in its present form with additional funding. Scenic America has been taking the lead on this reauthorization issue and the National Trust is urging preservationists to support this position as well.

Flexibility in Highway Design, Context Sensitive Design, and Thinking Beyond the Pavement

This provision in federal law encourages state transportation agencies to take into account the natural and built landscape where roads are designed to go. These considerations enable states to design projects that promote mobility and safety, maintain harmony with the community, and preserve an area’s environmental, scenic, aesthetic, historic, and natural resource values. These new design ideas are being tested successfully in pilot projects in several states. The National Trust is asking Congress to make context-sensitive design mandatory for all National Highway System projects.

Scenic and Historic Values

Section 109 of the Federal-aid Highway Act created standards and design criteria for road construction. ISTEA included a strong provision in 1991 promoting the importance of scenic and historic values. It was quietly amended in 1998 in a way that compromised the original language. The National Trust is asking Congress to restore that language to reflect the sound goals for modern road planning and design that Congress enacted in ISTEA.

Join the Advocacy Campaign

To find out how you can become a preservation partner and join in the advocacy effort to make surface transportation preservation- friendly, contact the National Trust’s Public Policy Department at (202) 588-6255, e-mail us at policy@nthp.org, or visit our website at www.capwiz.com/nthp.

Publication Date: March/April 2003