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Report to Congress REPORT TO CONGRESS STREAMLINING COMPLIANCE WITH SECTION 4(F) OF THE DEPARTMENT OF TRANSPORTATION ACT AND SECTION 106 OF THE NATIONAL HISTORIC PRESERVATION ACT FOR FEDERALLY FUNDED RAILROAD INFRASTRUCTURE REPAIR AND IMPROVEMENT PROJECTS M ANDATED BY: The Passenger Rail Investment and Improvement Act of 2008 (P.L. 110–432) Section 407 March, 2013 This page intentionally left blank. Executive Summary The Passenger Rail Investment and Improvement Act of 2008 (P.L. 110-432) (“PRIIA”) mandated that the U.S. Department of Transportation (U.S. DOT) conduct a study on ways to streamline compliance with the requirements of section 303 of title 49 U.S.C. (Section 4(f)) and Section 106 of the National Historic Preservation Act (16 U.S.C. § 470f) for federally funded railroad infrastructure repair and improvement projects. Congress also directed the Secretary to submit to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science and Transportation of the Senate, a report on the results of the study making recommendations consistent with railroad safety and the policies and purposes of Section 106 of the NHPA. The Federal Railroad Administration (FRA) conducted a study assessing the current state of historic preservation for railroad projects and potential for streamlining compliance for those projects in partnership with other U.S. DOT agencies and historic preservation agencies, including Advisory Council on Historic Preservation (ACHP) and the National Conference of State Historic Preservation Officers (NCSHPO) and the National Trust for Historic Preservation (NTHP). The Study drew upon the experiences shared by these agencies and other stakeholders, and on best practices and data extrapolated from case studies. The study found that there is currently no consistent approach on how to address the National Register of Historic Places (NRHP) eligibility of railroad corridors and how to treat the individual resources along the corridor once designated historic. This stems in part from a multitude of entities conducting NRHP assessments, including State Historic Preservation Officers (SHPOs), federal agencies, consultants and railroad operators, and in part from the lack of specific guidance for the classification of railroad resources. This variety of approaches can lead to inconsistent standards, procedures and project delay. Section 4(f) of title 49 protects publicly owned public parks, recreation areas, and wildlife and waterfowl refuges, as well as significant historic sites from use by U.S. DOT funded projects. Evaluation of potentially historic rail corridors can often involve Section 4(f) analysis, as contributing railroad elements may warrant 4(f) consideration. In this context, streamlining mechanisms addressing Section 4(f) compliance processes for railroad resources could benefit parties engaging in Section 106 analysis and provide significant benefits to project sponsors seeking to improve railroad infrastructure. Informed by this study, FRA recommends pursuit of one or more of three promising administrative measures for streamlining section 106. In addition, FRA offers options for consideration that would involve legislative measures to streamline compliance with Section 4(f), based on the Study’s comparative analysis and considering implementation effectiveness. Within this report are examples of streamlining administrative measures: a Draft Section 106 Nationwide Programmatic Agreement including exempted categories of undertakings and standard treatments, a Draft Amendment to the Railroads Title of the United States Code, and a Draft ACHP Section 106 Administrative Exemption. The report also offers options for Legislative Exemptions. March, 2013 i Federal Railroad Administration Executive Summary Section 106 Administrative Measures Section 106 regulations provide a series of regulatory mechanisms described as Program Alternatives at 36 CFR 800.14 that offer promising streamlining solutions for federally funded railroad infrastructure repair and improvement projects, including: Exempted Categories of Undertakings (800.14(c)); Programmatic Agreements (800.14(b)); and Standard Treatments (800.14(d)). The streamlining solutions available through these Program Alternatives can be incorporated into the content of agreements and exemptions to implement the Section 106 administrative measures recommended in this study. The following three Section 106 administrative recommendations can best achieve railroad safety and improvement, while meeting the intent of historic preservation laws through streamlining measures. 1. Exempted Categories of Undertakings. These offer an efficient opportunity to exempt specific programs or categories of undertakings from Section 106 review, which would streamline the approval of many minor activities and maintenance associated with railroad properties. One potentially useful exempted category would be undertakings that involve maintenance or replacement of railroad infrastructure materials in-kind, even if they are located in a railroad right-of-way that is over 50 years of age. Exempted categories could also be identical to existing Categorical Exclusions, enabling coincidental compliance with Section 106 and the National Environmental Policy Act in those cases where the undertaking is also categorically excluded under the agencies’ NEPA Procedures. This recommendation addresses the need to streamline the maintenance and repair of railroads for safety and technological improvements because they would no longer be subject to Section 106 review. 2. NRHP Eligibility and Level of Significance. The study finds that guidance should be prepared to make the evaluation of NRHP eligibility of railroad properties consistent across the entire nation and to ensure that the most significant railroad properties are identified and protected under preservation law. This guidance is necessary to reduce the number of railroad corridors and other railroad properties found eligible for the NRHP that do not represent an important historic context, do not have strong associations with important historic events or persons, or do not possess integrity from an accurately researched period of significance. Two options for implementing this guidance are provided: work with the staff of the NRHP section of the National Park Service to develop an authoritative NRHP Bulletin or use a section 106 Nationwide Programmatic Agreement to develop NRHP eligibility guidance. 3. Section 106 Exemption for Railroad Properties. A section 106 administrative exemption for railroads would ensure that the most significant element of railroads are identified and protected under preservation law, but all others would be exempt. Pursuant to 36 CFR 800.14(c), the ACHP would publish the section 106 exemption in the Federal Register. A precedent was set in 2005 by ACHP's section 106 exemption for the Interstate Highway System. In that precedent, the section 106 administrative exemption was coupled with a Section 4(f) legislative exemption enacted under SAFETEA-LU. Section 4(f) Legislative Exemption A legislative option for effective streamlining would be achieved by modifying the definitions of “use” and “historic site” in Section 4(f), as follows. March, 2013 ii Federal Railroad Administration Executive Summary The term use shall not apply for rail-transportation use of existing or former railroad or rail- transit property. The term historic site shall not include railroad and rail transit lines or corridors that were historically used for transportation of goods or passengers. The modifications would effectively remove most facilities used by railroads for transportation from Section 4(f) consideration, but would not affect the original intent of Section 4(f) to avoid conversion of historic sites to transportation use. In addition, section 106 would continue to apply, except where otherwise exempted, thereby protecting historic sites that are historic properties and are being used for transportation. A second legislative option would be to follow the Interstate Highway System exemption enacted under SAFETEA-LU. Following this precedent, the railroads' subtitle of the United States Code could be amended to exempt most of the U.S. Railroads from Section 4(f) except for the most significant elements that would be established by the Office of the Secretary of Transportation. The Section 4(f) legislative exemption would be pursued by U.S. DOT or FRA concurrently with the section 106 administrative exemption by ACHP. March, 2013 iii Federal Railroad Administration Executive Summary This page intentionally left blank. March, 2013 iv Table of Contents Executive Summary .............................................................................................................................i Acronyms and Abbreviations ............................................................................................................. ix Acknowledgements and Preparers .................................................................................................. xiii Chapter 1 Historic Preservation Law and Regulations ....................................................................... 1-1 Introduction ......................................................................................................................................... 1-1 Scope of the Study ........................................................................................................................ 1-2 Section
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