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?

Five Questions With Clint Tankersley of Presonomics & HiFi History

For years now, I’ve had preservation friends from social media; but, it was only about two years ago that I started to meet my “social media” friends in “real life”. I love making the world smaller and meeting friends who are doing inspiring work. Enter a new series to Preservation in Pink: Five Questions With. In this series, I’m talking with colleagues, social media friends, and others I admire to learn some tricks of the trade, hear their stories, and introduce you to more preservationists.

Next up (#5) in the series is Clint Tankersley.

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A scene from his lobbying experience with Preservation Action: Clint Tankersley (left, 2014 Advocacy Scholar), Dave Cross (Georgia Deputy SHPO), Congressman John Lewis, and Michael Phillips (National Trust Community Investment Corporation). Photo courtesy of Clint Tankersley.

Those deep in the preservation world will already know Clint from Presonomics, the non-profit organization that promotes the economic benefits of restoring historic buildings. Or, if you’re a podcast junkie, you might know Clint from his podcast HiFi History.

At the PastForward conference in November, Clint participated in the Instawalk and he answered many of my questions about Presonomics. Preservation & Economics can seem like a daunting task, but Clint and his team jumped in headfirst (all volunteers!) to make it easier for all of us. Clint’s hard work and motivation to help spread the good news of preservation as well as the tougher topics is inspiring and admirable. I thought you might like to meet Clint and learn about these endeavors. Read on!

 

  1. You are a preservationist and a lawyer. How did you decide to do both, and which came first?

I’ve loved history all my life. I know that’s a cliche thing to say in the preservation field, but for me love of history and historic places was almost inborn. My parents, who grew up poor without many opportunities to travel, were always taking my siblings and me to visit awesome historic places. After I took Mr. Cory Callahan’s riveting and unconventional 10th grade World History class, I even thought I might want to be a history teacher one day. But in college I moved into what I saw as a more useful, more lucrative field—business management. Taking business law courses from a brilliant, smart-mouthed, no-nonsense lawyer moved me towards a legal career.

So, law school came first. I never ever thought of marrying my interest in history with a career in the law. Frankly, I didn’t really understand the field of historic preservation—you can major in that? But when I got a job as a research assistant for my Environmental Law professor, Ryan Rowberry, the scales began to fall from my eyes. Professor Rowberry was a historian in medieval British history long before he became a lawyer and he had successfully combined both interests into an academic career, so I guess I had a good model. Long story short, I soon realized that I needed to focus in on preservation law. Ryan encouraged me to pursue a Master’s in Historic Preservation and I eventually relented.

 

  1. Can you explain the importance of preservationists understanding laws and the legal system?

As preservationists, we use many tools. Digital cameras, mapping software, design guidelines, electronic communication, and public outreach, to name a few. The legal system is another one of those tools. Perhaps, in some ways, it can be understood as the tool belt—it holds up and binds together all of our other tools. The law underlies everything that we do as preservationists.

But recognizing the law for what it is—a tool—means that we shouldn’t fear it. Rather, we need to wield it deftly and artfully to our own benefit. And, as a tool (or tool belt), don’t forget that it can be modified or even replaced if we don’t like it. Current laws are not the “end all be all” in the preservation paradigm. Too often, I think we let timidity or fear of failure hold us back from trying to improve our current preservation laws.

 

  1. What work has Presonomics done in 2015/16 – with whom do you work?

We’ve done a lot! But I’ll just touch on 2 projects. Most recently, we launched a new podcast (more on that later). The other project (it’s a mega-project really) is the Presonomics Open Access Repository. POAR (pronounced like “pour some knowledge into this developer’s brain”), as we affectionately call it, is a free online repository that will contain all extant publications related to preservation economics. The concept behind POAR is to make it easier for preservation activists to access economic data that can be used as powerful tools in their efforts to win over government officials, developers and property owners. This project requires extensive research and we currently have a team of research interns conducting thorough investigations one state at a time. So far, our phenomenal team has collectively logged over 700 hours of research and has documented over 1,000 publications related to preservation economics!

And lest your readers think that this will just be a huge boring list of study names with hyperlinks, let me explain further. We want to make the information from these studies as accessible as possible for the broadest possible swathe of mankind. To that end, we have read every one of these publications so you don’t have to (but they’ll be there if you want to dig in). We then pulled out all of the topics that each publication discusses and even provided a nice, one-sentence summary of each study. We believe that this pre-packaged approach will greatly simplify and empower the preservation advocacy process. Plus, we may even uncover new, previously unknown benefits of preservation by data mining all of this information.

We are deep into the research phase of POAR and we are now planning for funding opportunities to finance the digital construction of the repository itself. We will be applying for grants during 2016 and we hope to have funding secured by the beginning of 2017. Best case scenario, POAR will be fully operational about 2 years from now. That may seem like a super long time but it is quite remarkable when you consider that this is an all-volunteer endeavor.

 

  1. How would you like to see it grow?

The vision of Presonomics is to make the preservation of historic places the rule, not the exception, in the development of living communities throughout the world. To achieve this goal, we have to educate, educate, educate. At all levels (womb to tomb) and across all sectors.

We need more partners from different fields. Environmental, health care, law enforcement, poverty reduction initiatives. Those all need to have a seat at the table and I’d like Presonomics to be a facilitator of these conversations. We aim to be the go-to source for all things preservation economics.

 

  1. You also have HiFi History – how did you decide to start this podcast series? What has the response been so far?

I love podcasts (if you’re wondering, some of my favorites are Hello Internet, Freakonomics, Hardcore History, and Reply All). Listening to podcasts makes my short commute to work much more enjoyable and they really do a fabulous job of stimulating my brain. But I hungered for more preservation-related audio entertainment. So, ever the go-getter, I took it upon myself to create a new podcast, which is technically under the auspice of Presonomics.

I figured that I would give it a go and see if there is enough interest out there to support it. The show’s future is uncertain, but so far the response that I have been hearing is overwhelmingly positive. We just need many more listeners to make it viable. I believe that they will come over time. If you’re reading this right now and haven’t listened to it yet, then give it a try! I think that podcasting is a huge untapped market for the preservation movement to get its message across. History-themed podcasts are among the most popular genres out there and I am trying to figure out how to connect with that community. Things take time! But exposure to popular blogs like the cult classic Preservation in Pink may be just the boost we’ve been looking for.

 

Thank you, Clint! Economics is much easier to understand when you explain it. And thank you for the preservation podcast. We have been needing one! I also like that Preservation in Pink is now a “cult classic”!!  😉 Keep up the good work and send our appreciation to your team.

Connect with Presonomics on Instagram, Twitter, Facebook, LinkedIn, Pinterest, and find HiFi History on Twitter.

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?