Another path for streamlining environmental review
The Section 106 Program Comment to Exempt Consideration of Effects to Rail Properties Within Rail Rights-of-Way (Program Comment) was issued by the Advisory Council on Historic Preservation (ACHP) on August 17, 2018. The Program Comment provides two avenues for exempting projects from Section 106 review: 1) an activities-based approach that was made effective immediately, and 2) an optional property-based approach that would become effective after USDOT publishes guidance for implementation.
Perhaps you’re one of the heavy rail companies that is already using the ACHP Program Comment to exempt projects from Section 106 review using the “activities-based approach”? If so, you are far from alone: ICF attended a presentation by Federal Railroad Administration cultural resources staff at the Transportation Research Board’s ADC 50 Committee on Historic Preservation and Archaeology earlier this summer, where FRA reported that it has already exempted over 500 rail projects using this approach!
The activities-based approach
The activities-based approach is available to any federal agency with Section 106 responsibilities. The Federal Railroad Administration has an instructive webinar about the activities-based approach on its website (applicable to all USDOT agencies). Highlights of this approach include:
- Immediately effective as of August 17, 2018, the date the ACHP issued the final Program Comment.
- Applicable even if the properties are more than 50 years of age or already determined eligible for the National Register.
- The activities (listed in Appendix A of the Program Comment) generally are related to routine maintenance and repair of railroad facilities within the railroad rights-of-way (ROW).
The property-based approach
Next up will be the “property-based approach.” The property-based approach has some real advantages. Under this approach, the Project Sponsor (i.e. rail carrier or transit agency) would research, evaluate, and conduct outreach to all rail properties within a certain study area to identify those “excluded historic rail properties” that would remain subject to Section 106 review (or use of the activity-based approach for exemption). Highlights of this approach include:
- All other evaluated rail properties in the study area that are not designated as excluded historic rail properties would be exempt from Section 106 review.
- Applies to all federal Section 106 lead agencies, in addition to the Project Sponsor, and to all types of undertakings or effects.
- The Program Comment mandates that the ACHP publish the property-based approach guidance by October 14, 2019, at which time Sponsors can begin coordinating with their USDOT operating agency to establish lists of excluded properties.
How can rail industry and rail transit agencies prepare?
The ACHP released the draft guidance with a short comment period that closed on July 31, 2019. The guidance indicates that preparing a proposal to designate excluded historic rail properties will involve:
- Establishing the scope and study area.
- Conducting research on rail properties within the study area.
- Coordinating with State Historic Preservation Officers, Tribal Historic Preservation Officers, Indian tribes, and/or historical organizations to provide meaningful input.
- Evaluating all rail properties within their historic context, and areas of significance against criteria of historical significance and integrity.
- Identifying the list of excluded historic rail properties based on consideration of national significance, exceptional importance, listing in the National Register of Historic Places prior to issuance of the program comment, or local or state significance.
- Preparing the documentation to accompany the proposal to the USDOT agency.
We are actively working with our clients to develop strategies for implementing the property-based approach once it becomes available in October, while taking advantage of the activity-based approach now. How can we help you take best advantage of the Program Comment?
