Home Working with Section 106 ACHP Case Digest

Summer 2004 Nationwide: Development of a Programmatic Agreement for the Interstate Highway System

Agency: Federal Highway Administration

In May 2003, U.S. Secretary of Transportation Norman Mineta unveiled a surface transportation reauthorization proposal known as the Safe, Accountable, Flexible, and Efficient Transportation Equity Act.

Newspaper cartoon on the future interstate highway system (undated; reproduced in "Origins of the Interstate," ca. 1987, by Lee Mertz, FHWA)

The proposed legislation includes language that exempts the interstate highway system—soon turning 50 years old—from being considered a historic site for purposes of Section 4(f) and Section 106.

Section 4(f) is a provision in Federal law which says that the Federal Highway Administration (FHWA) will not approve a project that, among other things, requires the use of any land from a historic site of national, State, or local significance unless: 1) there is no feasible and prudent alternative to the use, and 2) that all possible planning to minimize harm resulting from such use is included.

Because the ACHP prefers an administrative solution over a legislative solution to the historic interstate highway system issue, it is working with FHWA and other interested groups to develop a Nationwide Programmatic Agreement to hopefully avoid a broad exemption in the final transportation bill.

FHWA has established an ad hoc task force of key stakeholders, including the ACHP, the National Council of State Historic Preservation Officers, the American Association of State Highway Transportation Officials (AASHTO), and the National Trust for Historic Preservation, to assist in developing the agreement.

The task force is working to outline the scope of the agreement to allow incremental upgrades to proceed without Section 106 review—as long as the improvements will not have an adverse effect on the overall system.

In April 2004, the ACHP submitted an initial draft Programmatic Agreement to FHWA for consideration. It says that FHWA will treat the interstate highway system, as a whole, as eligible for inclusion in the National Register as a property of exceptional significance, based on its scale and attendant impact to the social, commercial, and transportation history of the second half of the 20th century.

The draft agreement also provides that each division of FHWA, in consultation with its State Historic Preservation Officer, will either review segments of the system for individual eligibility on a case by case basis, or will develop a report identifying individual sections, features, or structures of the interstate highway system within that State (or within a particular corridor) that are individually eligible for inclusion in the National Register.

Once the evaluation is complete, the division will be exempt from considering a project’s effects on the interstate highway, except where the project affects those individually eligible sites. It will still need to conduct its regular Section 106 review, however, to consider the effects of proposed projects on historic properties other than the interstate system (for example, archeological properties or historic districts).

The draft agreement is currently being review by the agencies on FHWA’s task force. Initial feedback from AASHTO has indicated that State Departments of Transportation do not support the draft agreement because they are concerned about unanticipated consequences of regarding the interstate system eligible for inclusion in the National Register, and they prefer the legislative exemption.

The ACHP, however, remains committed to an administrative solution as provided in the draft agreement. The agencies will continue to work on finalizing the draft agreement in consultation with the task force members.

Once the agencies and the State Departments of Transportation have submitted their comments by the July 21, 2004, deadline, the ACHP will work with FHWA to revise the draft agreement to incorporate the comments.

Staff contact: Carol Legard

Posted August 9, 2004

Return to Top