This post is the third in a series on environmental review and permitting, guest-authored by experts from around the country, and intended to elevate differing perspectives and new ideas. The Bipartisan Policy Center has written extensively about the need for reforms to the federal permitting and environmental review process, outlining where we see room for improvement.
Federal investment in our country’s aging infrastructure is overdue and is critical to the vitality of the communities where we live and work. Efficient delivery of infrastructure projects and the preservation of our nation’s cultural resources can and should be complimentary goals, as intended by Congress when it passed the National Historic Preservation Act of 1966.
Policymakers should support efforts to make the federal infrastructure project review process more efficient while also identifying and protecting cultural and historic resources. We share the broad goals outlined in the One Federal Decision policy established in Executive Order 13807—the timely processing of reviews for major infrastructure projects as well as the related efforts of the Federal Permitting Improvement Steering Council (Permitting Council). Yet the most effective way to save time and money in the review process for infrastructure projects is to ensure that 21st century digitized maps of cultural resources are available at the earliest stages of project planning to identify and protect cultural resources while facilitating more efficient delivery of projects.
The nation’s strongest preservation law is Section 4(f) of the 1966 Department of Transportation Act, the law that established the U.S. Department of Transportation (DOT). Section 4(f) is intended to protect significant parks, recreation areas, wildlife refuges, and historic sites from harm due to transportation projects. It provides that historic sites and other protected resources must be avoided, unless two standards are met: (1) there is “no feasible and prudent alternative;” and (2) “all possible planning to minimize harm” has been utilized. This legal requirement is an indispensable safeguard to protect our nation’s historic resources from the adverse effects of poorly designed transportation projects.
In addition to Section 4(f) protections, Section 106 of the National Historic Preservation Act (NHPA), also enacted in 1966, requires consultation between state and federal transportation agencies and the State Historic Preservation Offices (SHPO) and Tribal Historic Preservation Offices (THPOs), as well as the federal Advisory Council on Historic Preservation. However, the consultation requirement of Section 106 alone does not provide adequate protection for historic resources.
There have been efforts in previous transportation bills to severely weaken or eliminate Section 4(f), under the rationale that it duplicates the requirements of Section 106 of the NHPA, which applies to all federal projects. Section 106, however, is merely a procedural review process that identifies historic resources potentially affected by federal projects, and requires consideration of those impacts, but does not mandate actual avoidance. Section 4(f), on the other hand, is a substantive standard that protects historic sites and publicly owned parks, recreation areas, and wildlife refuges unless there is “no prudent and feasible alternative” to avoidance, and to further undertake “all possible planning to minimize harm” when avoidance is not prudent and feasible.
Several common-sense Section 4(f) streamlining provisions have been implemented in previous transportation bills, including an exemption for the vast majority of the Interstate Highway System, and an exemption for de minimis impacts, meaning only transportation projects that pose significant threats to historic properties and other protected resources are affected by Section 4(f).
The key to protecting historic resources while enabling transportation projects to be completed quickly and efficiently is to consider historic resources early in the project planning process, when most project elements, including purpose, location, alignment, and scale, are still fluid. Early participation in project planning enables preservation planners to work with project sponsors to plan, design, and develop projects that avoid harm to historic resources, lessen conflict, and expedite project delivery.
Federal transportation law requires states and metropolitan areas to develop long range transportation plans. These plans should fully integrate the best available information on the location of natural and cultural resources early in the planning process. The FAST Act provided broad authority for DOT allocations to be used for “information gathering and mapping” activities that “directly and meaningfully contribute to expediting and improving permitting and review processes.” Many SHPO offices have received state DOT funding to map and review transportation projects. Significantly, the Permitting Council has identified improved digital tools to support more efficient reviews of infrastructure projects as a best practice.
Gathering information about known and predicted historic resources takes significantly longer without these digital tools, yet many SHPOs and THPOs have lacked adequate funding to develop robust early planning tools. As a result, historic preservation reviews typically occur late in the project development process, often during a Section 106 review of the impacts of the preferred alternative, with the potential for delays and constrained options that make preservation of important historic places less feasible. Conversely, developing more robust GIS-based maps enables infrastructure project planners and decision makers to incorporate and avoid historic resources early in the planning process, resulting in shorter project review timelines. For example, Washington state’s “WISAARD” system is one of the most robust—a digitized, GIS, cultural resource mapping platform that also incorporates an e-106 tracking system. Among other benefits, is has enabled the SHPO office to achieve a 3-4 day Section 106 response rate.
An example of a multijurisdictional cultural resource planning effort is the Bureau of Land Management’s National Cultural Resources Information Management System (NCRIMS). BLM has partnered with 11 western states since 1998 in a data management and sharing partnership, including cultural heritage data standardization and consistency across the Bureau. The landscape-level datasets enable agency planners to engage in discussions in front of planning rather than at the late stages as has been traditional. In addition, a high level, spatially explicit, modeling tool provides a general forecast model for cultural resources on BLM-managed lands, which informs early stage planning leading to more efficient project implementation.
A significant analysis of the existing state of cultural resource digitization, along with recommendations for future actions and funding, is now underway by the federal Advisory Council on Historic Preservation’s Digital Information Task Force. The task force, consisting of members of the council, including representatives of state and tribal historic offices, federal agencies, the National Trust, plus a set of outside advisors with experience in cultural and natural resource management issues, are assessing and evaluating the need for more uniformly available digital tools, including GIS mapping, to provide platforms to support improved preservation outcomes in federal agency project planning.
The preservation community has concluded that one approach is to fund a competitive grant program to enable SHPOs and THPOs to invest in creating and enhancing GIS maps of digitized cultural resources to accomplish these goals.
Certainly, any successful infrastructure legislation that Congress may enact needs to include dedicated funding to ensure that states and tribes have the resources to develop the 21st century systems necessary to identify cultural and historic resources in the earliest stages of project planning. This is one of the most significant challenges confronted by the preservation community. We are confident that it is achievable and that our nation’s cultural resources can be identified and protected while also facilitating the efficient delivery of well-planned infrastructure projects.
Tom Cassidy is the Vice President of Government Relations at the National Trust for Historic Preservation.