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Home arrow Working with Section 106 arrow ACHP Case Digest arrow Winter 2005 arrow Nationwide: Development of an Exemption to Section 106 for the Interstate Highway System
Nationwide: Development of an Exemption to Section 106 for the Interstate Highway System

Agency: Federal Highway Administration
As reported in the summer 2004 Case Digest, the Federal Government has been challenged by the potential historic significance of the entire interstate system as the 50th anniversary of the initiation of the Dwight D. Eisenhower National System of Interstate and Defense Highways approaches.

To meet this challenge, the ACHP is working with the Federal Highway Administration (FHWA) and other groups to streamline the review of FHWA’s projects that may affect the interstate system, through the use of an administrative exemption.

Black and white historic photo of the Fort Worth, Texas, Expressway, with several old cars on the highway.
The early days of the interstate highway system, Fort Worth Expressway, TX
(photo: Texas DOT)

The ACHP received a variety of comments on its originally proposed draft Programmatic Agreement (PA). Some Federal Highway Administration (FHWA) divisions, and the American Association of State Highway Transportation Officials (AASHTO), objected to the statement in the PA that the entire 46,700-mile-long interstate highway system would be treated as if eligible for inclusion in the National Register of Historic Places.

Many FHWA divisions were also concerned with the expectation that each State would be responsible for identifying sections of the interstate system within that State that have national significance, and then needing to consider such sections under the Section 106 review process.

AASHTO urged FHWA and the ACHP to consider developing an exemption instead. In August 2004, the ACHP met with FHWA and agreed on a revised set of principles and concepts for an administrative approach, as well as to look at the possible use of an exemption.

As consultation continued, an administrative exemption, as authorized by Section 214 of the National Historic Preservation Act, was determined to be the most appropriate approach to resolving all parties’ concerns.

In a December 29, 2004, Federal Register notice, the ACHP proposed an exemption that would relieve Federal agencies from the requirement of taking into account the effects of their undertakings on the interstate highway system, except with regard to certain individual elements or structures that are part of the system.

The proposed exemption embodies the view that the interstate system is historically important. Only certain important components of that system, however, would warrant consideration under Section 106 while the rest should be exempted from such consideration.

Components that would still be considered include elements that are at least 50 years old, possess national significance, and meet the National Register eligibility criteria; elements that are less than 50 years old, possess national significance, meet the National Register eligibility criteria, and are of exceptional importance; and elements that were listed in the National Register, or determined eligible for the National Register by the Keeper of the National Register pursuant to 36 CFR Part 63, prior to the effective date of the exemption.

FHWA, at the headquarters level, in consultation with stakeholders, will make the determination of which elements of the system meet these criteria. Additionally, FHWA could exclude historic bridges, tunnels, and rest areas of State or local significance, provided they meet the National Register eligibility criteria, were constructed prior to 1956, and were later incorporated into the interstate system.

It should be noted that the proposed exemption concerns only the effects of Federal undertakings on the interstate system, and does not alter the Section 106 review obligations for other types of historic properties that may be affected by an interstate project.

Each Federal agency would remain responsible for considering the effects of its undertakings on other historic properties that were not components of the interstate system.

For example, Federal agencies for interstate projects would still be required to take appropriate actions to identify and consider archeological sites that may be affected by ground disturbing activities, historic properties of religious and cultural significance to Indian tribes that may be impacted, and historic buildings or districts located within the area of potential effect of a proposed Federal undertaking, in accordance with subpart B of the Section 106
regulations.

The public comment period closed January 28, 2005. The ACHP will make any needed revisions to the proposal and submit a final exemption to the ACHP members for adoption.

For background information on this case, visit the summer 2004 Case Digest.

Staff contact: Carol Legard

Updated March 8, 2005

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