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Rail Law Alert – Railroad Rights-of-Way - Proposed Streamlining Provisions for Historic Preservation Review

ACHP Streamlining Section 106 Proposal

On November 17, 2017, the Advisory Council on Historic Preservation (ACHP) issued a two-part proposal to streamline historic preservation review for projects within railroad rights-of-way under Section 106 of the National Historic Preservation Act (Section 106). The proposal responds, in part, to the U.S. Department of Transportation’s request that the ACHP establish an exemption for routine undertakings that typically have no—or only minor—adverse effects, as directed by the Fixing America’s Surface Transportation (FAST) Act.

First, the ACHP proposes to exempt certain routine transportation-related activities that occur within railroad rights-of-way from all Section 106 review, provided the lead federal agency determines the undertaking will not potentially affect non-rail historic properties. Exempted activities are enumerated in Appendix A to the proposal, and include:

  • Replacement of rail (but not a change in gauge)
  • Replacement of subgrade, ballast or ballast materials
  • In-kind repair or replacement of structural or non-structural components of bridges, tunnels and other structures
  • ADA upgrades to passenger stations that do not remove or alter character-defining historic elements
  • State of good repair work
  • Signal replacement; and
  • Maintenance of at-grade crossings

Second, the ACHP also proposes an optional program that would allow project sponsors to proactively identify and evaluate “important historic rail properties,” independent of any project requiring federal funding or approval. Thereafter, an undertaking in a rail right-of-way would be entitled to streamlined Section 106 review, or, potentially, be exempt from review based on the particular facts involved and whether an “important historic rail property” were affected. Advance identification would also allow project planners to avoid impacts to “important historic rail properties.” The Federal Railroad Administration, Federal Transit Administration, and other U.S. DOT agencies will publish additional guidelines on developing such a list after ACHP’s finalizes its proposal.

Comments on the ACHP’s proposal are due no later than December 8, 2017, and should be submitted electronically to both RailROW@achp.gov and FRA.106Exemption@dot.gov. Please let us know if you have any questions about the proposed program comment or if we may assist you in commenting.