Last December, Congress passed the Fixing America’s Surface Transportation (FAST) Act, a $305 billion transportation funding bill with significant implications for historic preservation. Section 11504 of the FAST Act directs the Department of Transportation (DOT) to propose to the Advisory Council on Historic Preservation (ACHP) an exemption for railroad rights-of-way (ROWs) from the Section 106 review process. DOT will accept questions and input from the public through January 2017 (FRA.106Exemption@dot.gov) before submitting its proposal to the ACHP in early 2017.

In December, the DOT hosted a webinar to outline its proposed approach to the rail ROW directive in the FAST Act. During the webinar, DOT explained its two-pronged approach to proposing exemptions for federal undertakings located within an existing rail ROW.

One prong, the activities-based approach, would exempt certain routine activities within the rail ROWs from Section 106 review. The second prong, the property-based approach, would involve a case-by-case identification of nationally, state, or locally significant rail properties to be exempted from Section 106.

Routine activities proposed for an activities-based exemption — which got more attention during the webinar — include:

• Replacement of rails, ties, ballasts, signal and communications systems, and underground utilities within an existing disturbed footprint
• Minor railway station improvements to comply with the Americans with Disabilities Act (ADA)
• Track upgrades
• Maintenance and restoration of existing structures and minor new construction on previously disturbed ground

The exemptions would not, however, apply to:

• Historic properties located outside of the rail ROW
• Archaeological sites within the rail ROW
• Religiously- and culturally-significant tribal properties
• The removal of a railroad from transportation use

The second prong, the property-based approach, would involve a case-by-case identification of exempted properties and potentially allow for undertakings of a greater scale than under the first prong. Conceived as an optional process, the property-based approach would rely on project sponsors to advocate for the exemption of nationally, state, or locally significant rail properties from Section 106 review. DOT would then give final approval and post lists of exempted properties on its website.

Debates continue as to which activities should be exempt from Section 106 review, and the potential application of the property-based approach is not yet entirely clear. For more information on the FAST Act and its connection to historic preservation, see http://www.achp.gov/docs/historic-preservation-fast-act.pdf and http://forum.savingplaces.org/blogs/forum-online/2015/12/21/the-new-transportation-act-fast-act-what-does-this-mean-for-preservation.