Section 106 & Section 4(f) Exemptions from the Exemption

Exemption from the exemption? If you’re in the regulatory + infrastructure world, you’ve likely come across this. If you are not, step into our world for a few minutes.

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The “grasshopper bridge” in Lyndon, VT, carries Route 5 over I-91 and is an exemption to the Section 106 & Section 4(f) exemption. Meaning, this bridge is subject to project review, even though I-91 is not.

By law (the National Historic Preservation Act of 1966), all projects that receive federal funding are subject to review under Section 106. Review includes identifying historic resources that are listed in or eligible for listing in the National Register of Historic Places. Any project receiving transportation funding is required to be evaluated under Section 4(f) of the Department of Transportation Act of 1966.

But, what happens when one of largest resources in the nation becomes eligible for the National Register? By that I mean the Dwight D. Eisenhower National System of Interstate and Defense Highways (more commonly known as the Interstate Highway System). This 46,700 mile interstate highway system became eligible for the National Register on June 29, 2006, which was its 50th birthday. (Read more about Interstate history here.)

As a transportation resource, this would typically require Section 106 and Section 4(f) review on this historic resource. Imagine the amount of project review that would have spurred as a result. A majority of work on the interstate is simply paving or repairs or line striping. Basically, this had the potential to bring unnecessary paperwork and delays to state and federal levels.

Instead, the bulk of the Interstate Highway System was declared exempt from being considered a historic resource under Section 106 and Section 4(f). In other words, the Interstate Highway System was exempt from project review. This is addressed under the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU, Public Law 109-59, Aug. 10, 2005) / provision (Section 6007).

However, this exemption has exemptions! Elements of the Interstate Highway System that exhibit a national level of significance, as defined by the National Register of Historic Places, are not considered exempt, and will require project review. States submitted properties for consideration, and the final list was determined by the ACHP (Advisory Council on Historic Preservation) and FHWA (Federal Highway Administration). Find your state here.

Vermont has three elements, including the “grasshopper bridge” on I-91. Officially it is a steel rigid-frame bridge (built 1970) significant for its engineering. See the photograph at the top of this post. The official statement of significance is,

“This type of bridge is very rare on interstates in New England. In Vermont, two are on I-91; one each on northbound and southbound lanes carrying the interstate over Rte. 9 in Lyndon, Vermont. As of inspection on 01/12/05, structurally both bridges are in very good condition. Engineering-wise, this style was an experiment in 1960 and 1970 to determine if steel construction could take the variable weight loadings of an interstate environment. It was designed by a New York City firm, Blauvelt Engineering Co., and received a merit award from the American Institute of Steel Construction in 1974. The overall length of the bridges is 227 feet, 6 inches.”

Sadly, the steel arched deck truss in Brattleboro, VT that carries I-91 over the Williams River was not included in the list. It is uncommon bridge in Vermont, but not uncommon elsewhere on the interstate. Thus, it’s significance was not national. And when the bridge came up for replacement, no preservation law could save it. Thus, while not every bridge or element could be saved, the list is substantial, and better than exempting the entire system. Does your state have an interstate exemption? Have you seen it? Has your interstate lost an element not on the list?

Preservation ABCs: N is for National Historic Preservation Act

Preservation ABCs is a series that will work its way from A to Z, bringing words into conversation that are relevant to historic preservation, whether it’s an idea, feature or vocabulary term. The idea is to help you see preservation everywhere you look and wherever you go. Enjoy! See previous letters.

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N is for National Historic Preservation Act (of 1966)

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Historic preservation, as a movement, existed long before it was an academic field of study or an established profession. The movement in the United States can be traced to saving Independence Hall in Philadelphia, PA and the Mount Vernon Ladies Association and Ann Pamela Cunningham. (Here’s a lesson on the history of historic preservation: Preservation Basics No. 6.) Prior to the National Historic Preservation Act, some laws and programs were passed and established such as the Historic Sites Act and the Historic American Building Survey.

However, the National Historic Preservation Act drives the federal policy of historic preservation in the United States. The NHPA (1966) established federal, state and local responsibilities. The short version of the story is that the NHPA is a response to governments demolishing historic structures, buildings and entire neighborhoods, particularly following World War II. This law would require the federal government to identify historic properties and to take into account its effects on those resources.

The National Historic Preservation Act established federal preservation policy and procedures through these components:

  • Outlined federal/state/tribal/local partnerships to implement these programs (including establishing State Historic Preservation Officers and offices)
  • Establishing the National Register of Historic Places
  • Establishing the Section 106 review process
  • Establishing the Advisory Council for Historic Preservation
  • Establishing Section 110 (which requires federal agencies to be stewards of their historic properties)
  • Authorized matching grants and the Historic Preservation Fund

Read more about these components from the National Trust or the National Park Service. You can read the full text of the NHPA via the Advisory Council for Historic Preservation.

Where would we be without the NHPA? Not even close to where we are now in historic preservation, and we should thank our lucky stars for the NHPA and all of its components. What do you think?

Preservation in Pop Culture

I know I am late in the game here. Humor me, please. There are few television shows that I watch, and those few are the shows to which I am addicted: Gilmore Girls and Scrubs. My love for Gilmore Girls is thoroughly documented, whereas my love of Scrubs is just a new fun fact. Anyway, within the past few months, Vinny and I have finally started watching Mad Men. (Actually, we already watched all 4 seasons. I don’t joke about addictions.) I love Mad Men for the writing, the outfits, the decor, the continuous references to actual happenings in society, the insight into the advertising world and the sheer shock I feel during every episode. I am constantly grateful for the fact that I did not grow up or live until the 1980s and beyond.

Season 3 begins in early 1963; in Episode 2, “Love Among the Ruins,” the infamous Penn Station (yes, that Penn Station) makes an appearance. It’s not a large role, but I loved that a relevant preservation topic was discussed as a background current event to the show. Great job, Mad Men! In brief: Pete Campbell brings in clients who are in favor of razing Penn Station to replace it with an arena. Paul Kinsie sides with the protestors, in agreement with the architectural merit of the Station. Not much else happens in the episode with Penn Station until, Lane Pryce tells Don Draper the HQ (in London) wants the Madison Square Garden account dropped. Don disagrees, believing that it opens the door for the World’s Fair and future Madison Square Garden business. He clearly believes it is progress and the best thing for New York City. He states, “New York City is in decay.” There is no conclusion to this segment – it’s never mentioned again.

Okay, so the lack of follow through was disappointing. I would have loved to have seen Mad Men’s take on the actual Penn Station case. But, it was still exciting to see in such a popular television show. Check out the behind the scenes clip. (Now that I discovered the behind the scenes clips, I’ve probably ruined my productivity after dinner. Great.)

Jane Jacobs and Philip Johnson in front of the old Penn Station in 1963. Life Image/Getty Images. Click for source.

For those who are unfamiliar with the Penn Station case, the easiest explanation is that supporters of the building lost. It was demolished, and the preservation movement grew in greater force and importance. The blog post, “Lead Us Not into Penn Station” by Ed Driscoll offers a good summary of the Penn Station context.  Here is a Penn Station summary from the New York Preservation Archive Project.

East Facade, Penn Station. Library of Congress HABS. Click for source.

Library of Congress HABS collection - Penn Station, Concourse from SE. Click for source.

Penn Station Concourse. Library of Congress, HABS.

You can check out the full collection of HABS Pennsylvania Station photographs at Library of Congress – click here. I think it is time for me to read Preserving New York: Winning the Right to Protect a City’s Landmarks by Anthony C. Wood. In the meantime, I’m still psyched about the mention in Mad Men (as were my fellow preservationists around here, who have also just started watching). If you haven’t started watching yet, you should.

The Difficult Part of Regulatory Review

As mentioned before, I love the regulatory world of historic preservation. I love working for the Agency of Transportation and having the opportunity to see historic preservation affect everyone and every place. It is exciting and practical and challenging.

Interpreting the legal language and implications of Section 106 and Section 4(f) can seem like a puzzle, but it gets easier and makes more sense with practice and experience. However, I have found that the most difficult part of interpreting and applying preservation law is realizing that the laws cannot help everything. What do I mean? Well, if a property is not historic or a Section 4(f) resource such as a park or a wildlife/waterfowl refuge, then the preservation laws have no control over the direction of the project. Other reviews, such as those pertaining to natural or biological resources or storm water control may still apply regulations, if the situation warrants it. Legally, that makes sense. And in terms of historic preservation, it makes sense.

But, every so often, I think about a project that doesn’t make sense, whether it’s in the media or something that I know of from experience, and I wish that there was a law to stop or fix the project. Sometimes it doesn’t seem fair that ineligible (for the National Register) houses and neighborhoods are not protected by preservation laws. After all, people live everywhere! Don’t all existing buildings deserve some sort of chance, under somebody’s law? Shouldn’t an existing, new building be exempt from demolition because of embodied energy? Where in the project review line will something like this be addressed?

This particular desire to protect everything, no matter what sort of resource, probably dates back to my Mary Washington days, when the flamingos and I first declared that we could save the world through our historic preservation efforts. It still keeps us going.

Well, everything cannot be and is not historic. Obviously, one law cannot control or have a say over every aspect of every project — that sounds a bit too power crazed; but when you spend your days looking at projects and determining what is eligible for protection and what is not, it’s hard to ignore everything else. When that happens, it is important to remember that historic preservation review is only a small part of the review process. My job is historic preservation compliance, and that is important to remember. The best way to solve this dilemma is to keep a good working relationship with colleagues in order to understand the entire scope of the project, as well as its purpose and need, and the project review process. Luckily, I’m learning this day by day: how review functions, when to question the process and when I need to better understand the process.

Readers, what do you find most difficult about your job?

Historic Preservation Basics No. 6

Series introduction. No. 1 = Ideas You Should Not Believe About Historic Preservation. No. 2 = Vocabulary for Translating and Holding Your Own in a Preservation Conversation. No. 3 = Let’s Talk about Architecture / The Very Beginning of Describing Buildings. No. 4 = Let’s Talk about Buildings A Bit More.     No. 5 = The National Register of Historic Places (What You Should Know).

No. 6 = The History of Historic Preservation

As a recognized, formal academic and professional field, historic preservation is only about fifty years old. Organizations, ordinances, laws, and motivated individuals have been the backbone for establishing historic preservation in the United States.

Because preservation is connected to many other fields and its individual recognition is recent, the movement can be defined in different tracks, with a never-ending list of events. Books and professors can easily give you a long, thorough discussion on preservation’s history, so this post will highlight a few of the dates that are important to historic preservation in the USA. This particular list, assembled here, owes credit to Thomas Visser’s HP304 class lecture at the University of Vermont and to the book Historic Preservation by Norman Tyler. (Much of that same information can be found on this EMU webpage. I’ve simply compiled from the two and chosen which would be most relevant to readers.

You’ll note that the earliest efforts of historic preservation are centered on saving buildings and recreating environments. When that is under control and understood for the time, policy enters into the picture. As the years progress, policy plays an even larger role and the reaches of preservation are widened.

Now, for your very brief lesson in preservation history… enjoy! Feel free to add dates in the comments.

1813: Independence Hall (Pennsylvania State House) is purchased by the City of Philadelphia in order to save it from demolition.

1856: The Mount Vernon Ladies Association was chartered by Ann Pamela Cunningham in order to save George Washington’s home, Mount Vernon, after Congress refused to purchase the property. The MVLA served as a basis for the structure of historical societies and organizations: run by women, raising money and restoring individual, landmark-worthy buildings in order to benefit the American public.

1872: Yellowstone National Park is designated as a federally protected area.

1876: The Columbian Exposition in Philadelphia introduces such items as the telephone, telegraph, linoleum, typewriter, and features an exhibit, The New England Kitchen of 1776, which will create an interest in Colonial architecture and style — hence, Colonial Revival.

1879: The Boston Antiquarian Club was founded in order to prevent the Old State House from being moved to the Chicago World’s Fair.

1901: William Sumner Appleton forms the Society for the Preservation of New England Antiquities (SPNEA), which is now Historic New England (HNE).

1906: Antiquities Act, the nation’s first historic preservation legislation, designates monuments on federal lands and imposes penalties for destroying federal owned sites.

1912: Wallace Nutting (1861-1941), a  minister, photographers, preservationist, who wrote Old New England Pictures, acquired and restored a “Chain of Colonial Picture Houses” that were open to the public for a fee and serve as backdrops for historical photographs.

1916: The National Park Service is established.

1926: Colonial Williamsburg begins receiving funds from John D. Rockefeller, ,lead by Rev. W.A.R. Goodman. The 130 acre site is “weeded” to 18th century structures with important missing buildings reconstructed. Restoration guides the philosophy.

1927: Storrowton Village formed in West Springfield, MA using buildings relocated from MA and NH.

1929: Greenfield Village formed by Henry Ford by replicating and moving buildings.

1931: Charleston, SC establishes its “Old and Historic District,” which is the country’s first designated historic district. The district collectively develops restrictions in the general interest of the city.

1933: The Historic American Buildings Survey (HABS) is formed; it is the nation’s first federal preservation program.

1935: Historic Sites Act, passes by Congress, establishes preservation policy in the United States: “to preserve for public use historic sites, buildings and objects of national significance for the inspiration and benefit of the people of the United States.”

1936: The Vieux Carre is established as a historic district in New Orleans, LA.

1949: National Trust for Historic Preservation – established by Act of Congress as membership based organization, partially supported by federal appropriation.

1963: The demolition of Pennsylvania Station in New York City mobilizes the preservation movement.

1964: The country’s first historic preservation academic program is established at Columbia University by James Marston Fitch.

1966: National Historic Preservation Act is passed, establishing federal, state, and local government preservation responsibilities. Also established was the National Register of Historic Places.

1969: The Historic American Engineering Record (HAER) is formed by the National Park Service.

1970: Vermont’s Act 250 Land Use & Development Act, of which Criteria 8 states that proposed projects will not have undue adverse effects on aesthetics, beauty, historic sites, or natural areas.

1976: Tax Reform Act removed the incentive for the demolition of historic buildings.

1978: Revenue Act – passed by Congress and established incentive (investment tax credits) for rehabilitation of historic buildings.

1978: Secretary of the Interior’s Standards for the Treatment of Historic Properties introduced.

1980: The Main Street Program is established by the National Trust for Historic Preservation. The NHPA of 1966 is amended to include Certified Local Governments.

1988: The National Trust for Historic Preservation launches its 11 Most Endangered Places List. (The entire state of Vermont is listed in 1993 and 2004.)

1991: New Orleans Charter for the Joint Preservation of Historic Structures and Artifacts, drafted by the Association for Preservation Technology and the American Institute for Conservation, in order to address how preservation interests and collection considerations could co-function. The result is that both are important and require care. A set of 10 principles is adopted.

1995: The Secretary of Interior’s Standards for the Treatment of Historic Properties is revised to adopt the four sets of standards: preservation, rehabilitation, reconstruction, and restoration.

1998: The National Trust for Historic Preservation chooses to become independent of federal funding.

2000: The Historic American Landscape Survey (HALS) is established by the National Park Service.

2005: 1897 Century Building in St. Louis, MO demolished, and the National Trust for Historic Preservation supported demolition. A New York Times article “When Preservation equals Demolition,” covers the story. This serves, to some, as a wake up call for ethics.

2007: The National Trust for Historic Preservation begins addressing historic preservation and sustainability issues.

2008: The Pocantico Proclamation on Sustainability and Historic Preservation is released by the National Trust. It addresses how to make the existing environment sustainable. Read it here.

I Wear a Hard Hat

I love the regulatory world. I love preservation law. If you’ve known me since college and even while I worked at Fort Bragg, you may have just fallen off your chair. I apologize (Michelle M, ahem). For years I thought Section 106 project review would be the most boring job in the world. I have asked people to to remind me that I would never want such a job. However, I made these bold statements before studying preservation law and before studying the case of the Lake Champlain Bridge. And of course, before my summer internship with the Vermont Agency of Transportation.

My internship (and now job) includes two main parts: historic preservation monitor for the Lake Champlain Bridge project and project review for compliance with preservation laws. The preservation laws that I’m referring to are the National Historic Preservation Act of 1966 and Section 4(f) of the Department of Transportation Act of 1966. The brief reason for the existence of my historic preservation specialist and monitor job (with technical preservation law information thrown in there for fun and background knowledge) begins with this: the 1929 bridge that was demolished in December 2009 was historically significant.

Historic bridges are often part of our transportation systems, and thus serve two purposes: 1) sharing a part of our transportation history and 2) servicing our current transportation needs. But, often, historic bridges need to be widened or altered in order to keep pace with modern safety regulations. Unfortunately, some bridges will end up being demolished. However, Section 4(f) of the DOT Act of 1966 states that the Federal Highway Administration (FHWA) may not approve a project that involves the use of a 4(f) resource unless there is 1) no prudent and feasible alternative, 2) all measures have been taken to minimize harm, and 3) there is a de minimis impact on the resource. Section 4(f) resources can be defined as any significant historic or archaeological site, any publicly owned park or recreation area, or wildlife or waterfowl refuge. Thus, historic bridges fall under historic resources. Normally, historic bridges fall under the Section 4(f) Programmatic Agreement for historic bridges. In the case of the Lake Champlain Bridge, it did not apply because there was an adverse effect to the historic bridge (i.e. demolition). That meant that an agreement through Section 106 mitigation must be reached by the Advisory Council for Historic Preservation, the State Historic Preservation Office, FHWA, and the AOT/DOT.

To add more federal law into the mix, Section 106 also applied because the bridge traversed the Chimney Point State Historic Site. Any demolition or construction would involve the historic site in its area of potential effect. Section 106 applies to projects that constitute an undertaking, meaning a project, activity or program, funded in whole or in part under the direct or indirect jurisdiction of a federal agency, including those carried out by or on behalf of a federal agency; those carried out with federal financial assistance; and those requiring a federal; permit, license, or approval” [36 CFR 800.16].  If this project has the potential to affect historic resources, then the Section 106 process must be followed. Any adverse effects to the resource must be avoided, minimized, or mitigated.

So, to achieve mitigation of the loss of the historically significant Lake Champlain Bridge, a lengthy Programmatic Agreement (PA) was developed between the Federal and State agencies, both New York and Vermont. The mitigation involves protection of the historic sites with stipulations such as site delineation (via fencing), vibration monitoring, dust suppression, archaeological monitoring, and most importantly: communication. My job involves insuring compliance with the PA. If you’re really interested, you can read my weekly reports. (Click there and scroll all the way to the bottom of the “Construction” page.) The most interesting portion of each report is the photo section, fyi. Check out the construction webcams, too, if you want to see the live action. Working on a construction site is an interesting, exciting challenge, and while new construction and historic preservation rarely speak in the same vocabulary, I’ve learned that better communication and a willingness to understand the other side can make a huge difference. And yes, I do walk around in a hard hat and a reflective safety vest. And I wear many, many layers to combat the frigid winter air that blows from Lake Champlain.

Working on site at Chimney Point, January 2011. It’s alright; I know I look ridiculous. But, everyone else on a construction site looks the same.

I do not always wear a hard hat; some days I am in the office. But, I will say that a few times I’ve been walking down the hall and reached up to see if I was wearing my hard hat. I think I’m getting to accustomed to wearing it! Aside from the Lake Champlain Bridge, my job involves project review: all transportation funded projects must be reviewed for compliance with provisions of the National Historic Preservation Act (Section 106) as well as the DOT Act of 1966 (Section 4f). Unlike other states, Vermont has a Programmatic Agreement between the Agency of Transportation and the Division for Historic Preservation that allows the Agency of Transportation to conduct in house Section 106 reviews on standard projects. (The Lake Champlain Bridge is not an ordinary project, mostly because it was jointly owned by New York and Vermont.) Project can range from paving project to sidewalk improvements to road realignment to sign replacements and much more. It is absolutely amazing just how often preservation and transportation interact and just how frequently other fields intersect, such as wildlife, hydraulics, engineering, and construction. Every project requires careful review by all of the disciplines and when there is a problem with one, all must work together to find a solution and still meet the purpose and need of the project.

So that’s my job – without getting into too much detail. I love it. Each law has way more to it than I’ve outlined here, but clicks the links throughout the post for more information or ask me what I meant. I love talking through the laws!  And while the laws aren’t perfect and we will not agree with them all of the time, they make the preservation world go round, so to speak.

Care to share stories about your job?