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FHWA Legislation, Regulations, and Implementing Guidance

Safe, Accountable, Flexible, Efficient Transport Equity Act: A Legacy for Users (SAFETEA-LU)

On August 10, 2005, President George W. Bush signed the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). SAFETEA-LU authorizes the Federal surface transportation programs for highways, highway safety, and transit for the 5-year period 2005-2009 (read more here).

Proposed Transportation Reauthorization 2010-2015

To ensure sufficient funding to the end of the fiscal year, President Obama signed (on August 7, 2009) Public Law 111-046, which provides a $7 billion infusion into the Highway Trust Fund to keep the account solvent until the end of the current fiscal year. This bill adds funding to the Highway Trust fund, but does not extend the existing authorization past the end of the fiscal year.

Last June, U.S. Congressman James Oberstar (D-Minnesota) introduced a new surface transportation reauthorization to replace the current authorization (SAFETEA-LU) which expires on September 30, 2009. Despite the Obama administration's preference that surface transportation authorization legislation be postponed for 18 months, Oberstar, the House Transportation and Infrastructure Committee Chairman, planned to have a full committee mark-up of the 775-page bill in late July. However, the Committee has not reported any recent progress on long-term reauthorization bill.

Although the bill, which was introduced on June 20, 2009, proposes to significantly restructure surface transportation funding and consolidate programs into four core categories, it does not contain any radical departures from the existing environmental protections provided in SAFETEA-LU. The provisions of interest to historic preservation advocates include:

Title I: Federal-Aid Highways

• Transportation Enhancements (TE) would continue as a 10% set-aside formula, but will be sub-allocated to Metropolitan Planning Organizations and would be located within the newly established “Office of Livability” (see pages 52-53).
• The Scenic Byways Program is similar to the present program under SAFETEA-LU (page 132).
• An Office of Expedited Project Delivery would be established to monitor projects, ensure relevant parties comply with environmental reviews, and develop a project review for submission to the Secretary before the NEPA process is completed. This office would also promote continued focus on integrating planning and NEPA with early communication among all parties involved in project planning (pages 183, 185, 186). This could help ensure historic preservation concerns are addressed early in planning and in a manner similar to other environmental resources.
• An Office of Livability would increase modal choice and enhance livability and sustainable modes of transportation. The Director would encourage states, regions, local governments and Indian tribes to formulate Comprehensive Street Design Policies and Principals and Practical Design Standards. The bill's definition of Practical Design Standards includes an “approach…to develop a transportation facility that…preserves scenic, aesthetic, historic and environmental resources, while maintaining safety and mobility” (pages 210, 219).
• The Highway Bridge section includes language similar to H.R. 3999, the National Highway Bridge Reconstruction and Inspection Act of 2007 that was introduced by Chairman Jim Oberstar last Congress. According to the Elizabeth O'Hara of the National Trust for Historic Preservation (NTHP), this bill was designed to “create a framework that enables States to target inspections on historic bridges or those bridges that need to be watched closely, and limited resources on those bridges most in need of repair.” The current measure requires more frequent inspection of bridges on public roads, identification of bridges that are structurally deficient or functionally obsolete and assign a risk-based priority for replacement or rehabilitation of each structurally deficient bridge. A determination regarding the cost of replacing each structurally deficient bridge with a comparable facility or rehabilitating the bridge would also be required (pages 379-380).
• The draft reauthorization measure also contains language to address historic bridges. The measure does not include the NTHP's proposal to combine demolition grants under Section 144(o) and transportation enhancement funds to help local governments finance the costs of rehabilitating and reusing historic bridges. The NTHP intends to pursue an amendment to incorporate their proposed language, which the FHWA has long supported and which was passed by the Senate during the last reauthorization (pages 387, 388, 393).

Title III: Public Transportation

• Office of Expedited Project Delivery, similar to the approach described in Title I, will emphasize early coordination of environmental reviews in planning (pages 596-603). The Director will promote techniques and best practices, such as “maintain up-to-date State inventories of historic, cultural, and natural resources” (pages 596-603).

Title VI: Rail Transportation

• The reauthorization includes funding for high-speed rail development, which received significant increases in funding under ARRA (page 703).

FHWA’S NEPA Regulations

The ACHP’s Regulations at 36 CFR 800.8 encourage Federal agencies to coordinate Section 106 consultation with the requirements of the National Environmental Policy Act (NEPA). FHWA also encourages this coordination, and has established its own regulations and guidance for implementing NEPA for surface transportation projects. FHWA offers training on NEPA compliance through the National Highway Institute, including a three-day on-site course for FHWA divisions on effectively coordinating Section 106, NEPA, and Section 4(f) of the Department of Transportation Act (read more here). For information on FHWA’s NEPA regulations and implementing guidance click here.

Section 4(f) of the Department of Transportation Act

Department of Transportation agencies may not approve the use of land from a significant publicly owned public park, recreation area, or wildlife and waterfowl refuge, or any significant historic site unless a determination is made that there is no feasible and prudent alternative to the use of the land from the property; and the action includes all possible planning to minimize harm to the property resulting from such use. This requirement provides historic properties subject to Section 106 additional protection by imposing strict requirements for transportation agencies, including FHWA, to document that there is no feasible and prudent alternative to the "use" of a historic property.

A new Section 4(f) Final Rule, 23 CFR 774, was published in the Federal Register on March 12, 2008.  The effective date of the regulation is April 11, 2008. This final rule modifies the existing procedures for granting Section 4(f) approvals in five ways:

1. Clarifies the factors to be considered and the standards to apply when determining if an alternative for avoiding the use of a Section 4(f) property is feasible and prudent;
2. Clarifies factors to be considered when selecting a project alternative in situations where all alternatives would use some Section 4(f) property;
3. Establishes procedures for determining that the use of a Section 4(f) property has a de minimis impact on the property;
4. Updates the regulation to recognize statutory and common-sense exceptions for uses that advance Section 4(f)’s preservation purpose, as well as the option of applying a programmatic Section 4(f) evaluation;
5. Moves the Section 4(f) regulation out of 23 CFR 771.135 to its own place in 23 CFR 774 with a reorganized structure that is easier to use.

Finding of De Minimis Impact

Section 6009(a) of SAFETEA-LU provides that an analysis of avoidance alternatives is not required if the FHWA (or other Department of Transportation agency) determines that the transportation use of a Section 4(f) property will result in a de minimis impact. The use of a finding of de minimis impact for Section 4(f) compliance is included in the Section 4(f) rule, as follows: “A finding of de minimis impact on a historic site may be made when: The Section 106 process results in the determination of “no adverse effect” or “no historic properties affected” with the concurrence of the SHPO and/or THPO, and the ACHP if participating in the Section 106 consultation; The SHPO and/or THPO, and the ACHP if participating in the Section 106 consultation, is informed of FHWA’s or FTA’s intent to make a de minimis impact finding based on their written concurrence in the Section 106 determination; and FHWA or FTA has considered the views of any consulting parties participation in the Section 106 consultation.”

Programmatic 4(f) Analyses for Historic Properties

FHWA has prepared two nationwide programmatic Section 4(f) evaluations that may be used with historic properties. The first sets forth the basis for a programmatic Section 4(f) approval when there are no feasible and prudent alternatives to the use of certain historic bridge structures to be replaced or rehabilitated with Federal funds and that the projects include all possible planning to minimize harm resulting from such use. The second programmatic Section 4(f) may be used when FHWA determines, and the agency with jurisdiction agrees, that the transportation project will have a net benefit to a Section 4(f) property. For more information see:

Section 4(f) Evaluation and Approval for Transportation Projects That Have a Net Benefit to a Section 4(f) Property

Programmatic Section 4(f) Evaluation and Approval for FHWA Projects that Necessitate the Use of Historic Bridges

Information on FHWA'S Planning and Historic Preservation Programs

• State Assumption of Responsibility for Categorical Exclusions
• Applying the 4(f) Exemption for the Interstate Highway System
• Determining De Minimis Impacts to Section 4(f) Resources
• Federal Highway Administration Historic Preservation Program
• Consulting with Indian tribes in Section 106
• FHWA Planning and Environment Legislation, Regulations, & Guidance
• Planning and Environment Linkages Website
• FHWA Environmental Tool Kit

Updated September 18, 2009

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