Preserving Yesterday While Designing for Tomorrow
Legislation and diligent planning help transportation agencies participate in safeguarding U.S. history.
Just as families pass heirlooms from generation to generation to preserve their own heritage, the Federal Government is responsible for preserving archaeological sites, structures, and properties deemed important to the culture and history of the United States.
Archaeologists, architectural historians, and other cultural resource managers are in the business of managing the Nation's historic sites. These resources include items, structures, and places of archaeological, architectural, and historical significance. The term "cultural resources" applies not only to buildings, paintings, and sculptures but also to archaeological sites and traditional cultural properties.
Aggressive development in the United States has taken a toll on cultural resources. Between 1900 and 2011, the population of the United States more than quadrupled from 76 million to 311 million people. During that time, the numbers of homes, subdivisions, and road miles grew significantly to accommodate the population.
To avoid, minimize, or mitigate the effects of highway projects on historic sites, transportation and resource professionals at the Federal and State levels apply a number of tools and best practices. Included are geographic information systems (GIS) and programmatic agreements to streamline the review process while protecting the country's heritage.
Legislation: The Roots of Historic Preservation
Legislation aimed at setting aside natural lands as public park and conservation land in the United States is rooted in the American Antiquities Act of 1906. As described in the United States Code (Title 16 U.S.C. 431-433), the act authorizes the President to designate historic landmarks, historic and prehistoric structures, and other objects on public lands as having historic or scientific interest. The statute outlines the Government's right to permit examination and excavation of sites and collect objects of antiquity for research and preservation purposes. The law also tasks Federal agencies with establishing rules and regulations to carry out the provisions of the act. The 1906 legislation also includes penalties — fines or imprisonment — for theft of or damage to antiquities.
The National Historic Preservation Act of 1966 (as amended) established a procedural requirement for all Federal agencies to follow. And the Department of Transportation Act (DOT Act) of 1966 established a regulatory requirement that made avoidance and preservation of historic properties a responsibility of the U.S. Department of Transportation (USDOT). A special provision of the DOT Act, known as Section 4(f) (Title 23 U.S.C. 138), set restrictions on the use of land from publically owned parks, recreational areas, wildlife and waterfowl refuges, or publicly and privately owned historical sites for transportation projects. Specifically, Section 4(f) stipulated that the Federal Highway Administration (FHWA) and other USDOT administrations cannot approve use of these lands unless (1) no feasible and prudent alternatives exist, and the action includes all possible planning to minimize harm to the property, or (2) the use is determined to be so minor that it has a de minimis impact. Regulations directing FHWA on how to implement the provisions of Section 4(f) are available in the Code of Federal Regulations (Title 23 CFR Part 774).
Likewise, Section 106 of the National Historic Preservation Act requires Federal agencies to take into account the effects of their activities on historic properties. Section 106 mandates a historic preservation review process. Revised regulations, Title 36 CFR 800, require Federal agencies to make a "reasonable and good faith effort" to identify historic properties and archaeological sites within the area of proposed projects. This effort could include research, consultation field investigations, and field surveys.
The National Environmental Policy Act (NEPA) of 1969 also plays a major role in governing the review and analysis of potential impacts of transportation projects on the environment. Specifically, NEPA mandates that Federal agencies consider the potential social and environmental consequences of their proposals, document the analysis of potential impacts, and make this information available to the public for comment prior to project implementation.
Section 106 Process Explained
Section 106 of the National Historic Preservation Act requires transportation agencies to evaluate all federally funded or permitted projects for potential impacts on historic properties. Through the Section 106 process, the Federal agency, in consultation with the State Historic Preservation Office (SHPO), must first determine if a specific property is eligible for listing on the National Register of Historic Places, which lists districts, sites, buildings, structures, and objects deemed worthy of preservation. For a property to be considered eligible for the National Register, the Federal agency must consult with State or tribal historic preservation officers before making a determination after examining the property's integrity and significance.
Historic preservation officers administer the National Historic Preservation Program at the State and tribal levels, review nominations to the National Register, maintain data on historic properties that have been identified but not yet nominated, and consult with Federal agencies during the Section 106 review. These individuals are designated by the Governor (or tribal leadership) of their respective State or territory (or tribe).
In the case of specific transportation projects, the Federal agencies consult with the historic preservation officer to determine whether the project has the potential to affect historic properties. Highway agencies also consult the public and other stakeholders, such as Native American tribes, when determining whether a specific project has the potential to affect historic properties. After consultation, the Federal agency may decide that the project has no potential to affect historic properties and satisfies Section 106, and the agency then may direct the project to proceed. However, if project effects are possible, or if the parties cannot agree, the Federal agency will continue to consult and will seek ways to avoid, minimize, or mitigate the adverse effects before proceeding.
"Engaging the public and incorporating the views of other interested parties throughout the process is critical for a successful Section 106 consultation," says FHWA Federal Preservation Officer MaryAnn Naber. "We define consultation as an active exchange of ideas and information between a Federal agency and other Section 106 participants to seek consensus about what properties are eligible or listed, the nature of project effects, and potential resolution of any adverse effects."
FHWA's Historic Preservation and Archeology Program, housed within the Office of Project Development and Environmental Review, provides guidance and technical assistance to Federal, State, and local government staff regarding Section 106 and the Federal laws, regulations, and policies related to historic preservation and cultural resources. In addition, the Advisory Council on Historic Preservation — established by the National Historic Preservation Act to guide Federal agencies in considering preservation during planning — created a Section 106 flowchart to help agencies integrate the Section 106 process into project planning. The flowchart is available at www.achp.gov/regsflow.html.
Section 4(f) at Work in Texas
Transportation officials involved with the Section 4(f) and Section 106 processes might find it beneficial to be aware of previous case law. Understanding how historic preservation laws have affected earlier projects can help agencies successfully meet the acts' requirements and avoid potentially costly delays.
For example, in Fort Worth, TX, residents used preservation law to reunite several historic buildings with the downtown area. When I-30 opened to traffic in 1958 — 8 years before Section 4(f) became law — it separated a number of significant historic buildings on the south side of Fort Worth from the rest of the downtown. In the early 1980s, the Texas Department of Transportation (TxDOT) proposed widening I-30, pushing the roadway closer to the historic buildings. A local coalition of concerned residents argued that the proposed project failed to follow the Section 4(f) requirement to protect historic places.
The U.S. Court of Appeals sided with the residents and ordered TxDOT to develop a new plan to comply with Section 4(f). The alternative plan moved the alignment south of the historic buildings along Lancaster Avenue. In 2002, the old section of I-30 was torn down, reuniting the historic buildings and Lancaster Avenue with downtown Fort Worth. The result protected the cultural and historic properties and paved the way for further downtown development.
"The relocation of I-30 has enabled us to redesign and reconstruct Lancaster Avenue in a way that respects the character of our historic buildings while attracting reinvestment to the south end of downtown," says Fernando Costa, assistant city manager for Fort Worth. "That reinvestment, including the development of a new hotel and condominium, as well as restoration and adaptive reuse of the historic Texas and Pacific passenger terminal building, shows how transportation decisions can serve as a catalyst for historic preservation and economic development."
Environmental Streamlining Tools
Managing the effects of transportation projects on cultural resources depends greatly on coordination between State DOTs, the State or tribal historic preservation officer, FHWA, and other Federal agencies. To evaluate the potential cultural and environmental effects of proposed projects, some States have developed tools to help streamline the process.
The Florida Department of Transportation (FDOT), for example, developed an online environmental screening tool used for the Efficient Transportation Decision Making process (available at https://etdmpub.fla-etat.org/est). The tool provides transportation planners, project analysts, and managers with sufficient information to plan and develop projects for future compliance with Federal and State environmental laws. The process helps FDOT improve long-range transportation planning, shorten project delivery, minimize the cost of environmental studies, and improve agency coordination.
Efficient Transportation Decision Making involves three phases: planning, programming, and project development. In the first two phases, FDOT, FHWA, and the resource agencies conduct screenings of the proposed project to determine ways to avoid, minimize, or mitigate impacts on cultural resources. After both screenings, the agencies make a class of action determination, which can be a categorical exclusion, environmental assessment, or environmental impact statement, to decide which studies are required to meet NEPA and Section 106 requirements. Once the class of action is determined, the project is ready for a project development and environment study.
Throughout the Efficient Transportation Decision Making process, the agencies use FDOT's interactive, Web-based Environmental Screening Tool to evaluate proposed projects' impacts on their surroundings. The tool documents project changes, helps decisionmakers evaluate impacts, and facilitates communication with the public, agencies, metropolitan planning organizations, and tribes.
FDOT's Environmental Screening Tool also provides GIS analysis and visualization capabilities. GIS technology makes it possible to create cultural resource data layers that can be spatially and analytically compared to and overlaid with information on a variety of environmental and transportation-related data. GIS can dramatically improve the response times for agencies when determining potential risks to cultural resources by quickly indicating the location of sensitive historic resources in relation to proposed highway improvements. Project officials can upload local property appraisal records into the GIS database layers to help identify potential historic sites. After projects are loaded into the database, project officials can run standard GIS analyses (such as soil mapping, demographics, wetlands, historic sites, and native species) to identify potential environmental effects.
"Our GIS data layers and early consultation represent integral components of our efforts to produce the best possible roads to serve the mobility and historic preservation goals of our communities and State," says Roy Jackson, environmental scientist/historian in FDOT's Central Environmental Management Office.
Other States also have developed GIS models for identifying potential risk areas where cultural resources may be affected. A cultural resource GIS database can help States streamline the Section 106 process and allow for quicker implementation of roadway improvements. GIS databases enable State DOT project managers to evaluate project alternatives to avoid potential cultural resource impacts early in the planning stages.
In September 2010, the American Association of State Highway and Transportation Officials (AASHTO) released a report that collects best practices from States' use of cultural resource GIS databases. The report, Best Practices for Establishing and Maintaining Statewide Cultural Resources GIS Databases, highlights effective methods for using these databases to assess the potential effects of transportation projects on historic properties.
For example, TxDOT uses a planning tool grounded in GIS to conduct archaeological evaluations in the Houston area. Developed by TxDOT geoarchaeologist Dr. James T. Abbott for the department's Houston District Office, the Houston Potential Archeological Liability Map GIS database is able to predict where transportation projects have the potential to encounter archaeological sites. The tool is available for use by the SHPO, Texas Historical Commission, and others.
"It is a great tool for planning and prospecting for prehistoric sites," says Allen Bettis, staff archaeologist in TxDOT's Environmental Affairs Division. "It is generally very accurate in its ability to predict the liability for archaeological materials at a particular location; however, there are occasions when personal experience of a location has resulted in the [Potential Archeological Liability Map] being overruled by the archaeologist. But rarely are field and site visits needed to confirm the results of the model."
The use of GIS databases enables TxDOT project managers to evaluate project alternatives for potential cultural resource impacts early in the planning stages. TxDOT's model uses geologic, soils, and geographic data; aerial photos; and geoarchaeological data from field visits to produce a predictive model to identify the likelihood of finding prehistoric archaeological sites within a study area. The department already expanded the tool for use in the Fort Worth area and other districts will follow.
Another method for streamlining the Section 106 review process is the development of programmatic agreements to govern how the process is carried out within a given State. A programmatic agreement is a legally binding document between the signatory parties that establishes a process, delegates certain tasks (and sometimes responsibilities), or describes actions that will be taken by the parties. These agreements typically reduce the number of steps and amount of time required for review and approval of projects that meet the predefined conditions. Programmatic agreements are most often used when the Federal agencies and State DOTs want to streamline the project delivery process.
For example, in 2006 the Indiana Department of Transportation (INDOT), the Indiana SHPO, Advisory Council on Historic Preservation, and FHWA adopted a programmatic agreement that defines a process to identify those historic bridges within the State that are most suitable for preservation. The agreement applies to projects that would result in the rehabilitation or replacement of historic bridges, dubbed "select bridges" in the agreement. The key provision is that "FHWA will not consider demolition to be a 'prudent' alternative for any Federal-aid project involving a select bridge, and FHWA will not participate in a project that would result in the demolition of a select bridge." The vast majority of the remaining bridges — those that did not make the "select" list — are therefore excused from further consideration under Section 106, saving time and administrative attention for future projects.
To help determine if rehabilitating a historic bridge for vehicular use is feasible and prudent, INDOT added a section to its design manual called "Treatment of Historic Bridge on Low-Volume Local Road." The new section defines types of historic bridges, treatment conditions, and economic criteria to guide the department and its partners when making decisions regarding rehabilitation.
FHWA's Naber says that programmatic agreements to address historic bridges are an effective approach, especially under FHWA's Every Day Counts Initiative, which encourages practices that shorten project delivery times. "Some bridges may be functionally obsolete but structurally sound and could be candidates for rehabilitation at a lower cost than replacement," she says. "We should consider whether there are treatments that would make rehabilitation possible before we choose to replace our dwindling inventory of historic bridges."
Resources are under development to help State DOTs prepare programmatic agreements for historic bridges and guide decisions about classifying them for rehabilitation, replacement, or demolition. For example, in conjunction with the National Cooperative Highway Research Program, FHWA is in the process of identifying case studies that highlight bridges that have been rehabilitated rather than replaced. The final product will include best practices for States when dealing with historic bridges. In addition, AASHTO's Center for Environmental Excellence has compiled a list of sample programmatic agreements from across the country. The list is available at http://environment.transportation.org/pal_database.
Consulting With Interested Parties
Involving the public and other interested parties throughout the Section 106 process and incorporating their viewpoints are critical to projects' success. To guide public involvement in Pennsylvania, the Department of Transportation (PennDOT) entered into a Section 106 programmatic agreement with FHWA, the Advisory Council on Historic Preservation, and the SHPO. The agreement is particularly helpful in facilitating consultation with tribes with ancestral ties to Pennsylvania who may attach religious or cultural significance to properties within the Commonwealth. Pennsylvania also has individual agreements with federally recognized tribes in the State to facilitate consultation.
PennDOT, using Preservation Pennsylvania, a statewide nonprofit organization, launched a searchable database called the Project for Pennsylvania Transportation & Heritage, or ProjectPATH, to track all active PennDOT projects in the Statewide Transportation Improvement Plan. The database provides agencies and the public with up-to-date information about the Section 106 consultation process on transportation projects.
PennDOT staff enters project documents into ProjectPATH and uploads them to a server maintained by Indiana University of Pennsylvania for ease of accessibility. For each project, in consultation with PennDOT cultural resources professionals, Preservation Pennsylvania helps determine appropriate stakeholders and solicits public involvement as needed. PennDOT also developed a document titled Cultural Resources Administrative Procedures for PennDOT Cultural Resources Professionals, which provides guidance and consistency regarding actions taken by the department.
"PennDOT wanted to formally and broadly delegate activities to the State [by means of ProjectPATH] to better track cultural resource documents and to ensure the public had better access to them," says Deborah Suciu-Smith, an environmental protection specialist at FHWA's Pennsylvania Division Office. "PennDOT's procedure embodies the use of an innovative technology to streamline the Section 106 consultation process."
Reaching Out to the Public
Agencies can serve a vital leadership role in the stewardship of historic resources by actively seeking public involvement. To facilitate public outreach, agencies should keep technical definitions and descriptions to a minimum when presenting archaeological investigations and recommendations. In addition, agencies should reasonably consider the public and consulting parties' interest and existing knowledge levels. In particular, agencies should reach out to federally and State-recognized Native American tribes and Native Alaskan and Hawaiian organizations, as they are recognized in Federal regulations as having special expertise in assessing whether a property or site has religious and cultural significance to the tribe or organization.
Maryland, for example, has no resident federally recognized tribes. However, in concert with FHWA, the State Highway Administration (SHA) is developing a working relationship with local Native American groups who claim a tribal affiliation but are not legally recognized by the State or Federal government. "We actively consult with Maryland tribal groups and federally recognized tribes," says April Fehr, an archaeologist with SHA. "We have developed a Native American outreach program, and we plan to develop a programmatic agreement to facilitate our consultation process."
The State's outreach efforts also include the publication and dissemination of a quarterly newsletter called the "Cultural Resources Bulletin" that showcases local projects. In addition, Maryland circulates an information pamphlet, Cultural Crossroads, which illustrates SHA's responsibilities and underscores its commitment to preserving archaeological sites and historic buildings and bridges. SHA designed the pamphlet as an information tool for cultural resource professionals and the public to showcase Maryland's dedication to protecting cultural resources.
Public involvement is also a cornerstone of the Delaware Department of Transportation's (DelDOT) archaeology and historic preservation efforts. "Over the past 30 years, we have reached out to schools, senior centers, libraries, historical societies, and professional and civic groups," says DelDOT archaeologist Kevin Cunningham. "We publish archaeology and historic preservation series reports and distribute them all over the State and region. Now, all past and current materials are available on our Web site at www.archaeology.deldot.gov. We genuinely value public input and participation in all that we do and go to great lengths to properly involve all interested parties. As a result, our projects and products are more meaningful and inclusive. At DelDOT we have a saying, 'public or perish!'"
Once agencies collect public comments and feedback, they should keep those concerns in mind when determining the appropriate resolution of an adverse impact, FHWA's Naber says. Often projects require mitigation efforts to avoid or minimize the effects on historical or archaeological sites. In some cases, agencies may choose to acquire or preserve archaeological or other types of cultural sites away from the project area in return for conducting little or no mitigation on sites within the project area. This technique, known as creative mitigation or mitigation banking, may be suitable under certain sets of circumstances to avoid potential historic sites or mitigate for taking public property for other projects. Further, mitigation banking helps protect wildlife species and avoid sensitive areas such as wetlands, thereby demonstrating environmental stewardship on the part of FHWA and State DOTs.
Highway agencies also should take into account the public value of preservation; the importance of a site should be considered in balancing the need for the project.
Maintaining the Legacy
For more than 100 years, the United States Government has recognized historic preservation as critical to retaining for posterity artifacts and properties deemed valuable to the Nation's heritage. Multiple laws have outlined protocols for preservation and assigned responsibilities to Federal agencies, including USDOT, to protect those historic and archaeological resources when planning projects, in partnership with State and local government, organizations, and the public.
State agencies and FHWA continue to enhance the process required for vetting transportation projects for potential impacts on historic, cultural, and environmental impacts. The use of GIS is becoming increasingly important to reducing potential conflicts. With FHWA's heightened focus on shortening delivery time, agencies are developing new ways to balance schedule demands with efforts to protect historical sites, structures, and other properties. States that have adopted a Section 106 programmatic agreement have been able to streamline their Section 106 processes — simultaneously reducing project delivery times and minimizing conflicts.
One of the main goals of the transportation sector during the planning process is to be transparent and consistent. Section 106 consultation and community outreach are vital to achieving this required level of transparency. Even in today's economic reality of doing more with less, transportation agencies need to ensure that preservation and environmental laws and regulations are followed by the letter and in spirit to avoid, minimize, or mitigate the potential impacts of highway projects on the Nation's cultural resources.
Mack Frost is an environmental specialist in the Professional Development Program at the FHWA DelMar Division Office in Baltimore, MD. He graduated from the University of Maryland with a bachelor of arts in communications and a master of public health in environmental health science.
Jeanette Mar is an environmental program manager at the FHWA DelMar Division Office in Baltimore, MD. She has a bachelor of science degree in biology from the University of San Francisco and a master of environmental studies in resource management from the University of Pennsylvania.