What is this Exemption? The recently passed SAFETEA-LU re-authorization legislation includes a provision (Section 6007) that exempts the bulk of the Interstate Highway System from consideration as a historic property under Section 4(f) of the Department of Transportation Act. This section is intended to work in tandem with the Historic Preservation Exemption under Section 106 of the National Historic Preservation Act adopted last spring by the Advisory Council on Historic Preservation (See Exemption Regarding Historic Preservation Review Process for Effects to the Interstate Highway System.)
What does the Exemption do? The pair of exemptions, acting in tandem, effectively exclude the vast majority of the 46,700 mile Dwight D. Eisenhower System of Interstate and Defense Highways (Interstate System) from review as a potential historic property under Sections 4(f) and 106. Subsequent questions and answers apply to the pair of exemptions working together.
Why were these Exemptions adopted at this time? As the system approached its fiftieth anniversary, transportation and historic preservation officials recognized its significance and realized that parts of it could potentially be considered eligible for inclusion in the National Register of Historic Places (National Register) and therefore subject to Section 106 and Section 4(f). Without the exemption, Federal Agencies were potentially liable for assessing impacts to myriad sections of the Interstate System even for basic maintenance and improvements.
What do the Exemptions apply to? The Exemptions apply to the Dwight D. Eisenhower National System of Interstate and Defense Highways as set forth in 23 U.S.C. 103(o), that being commonly understood as the highway related facilities within the rights-of-way of those routes presently carrying the official Interstate System shield including, but not limited to, the roadway, engineering features, and associated highway features such as bridges, tunnels, rest stops, interchanges, off-ramps, and on-ramps. It is important to note that these exemptions do not excuse interstate highway projects from taking into account the effects of their actions on historic properties other than the Interstate System. For example, a pre-contact archeological site lying within the highway median would still be subject to consideration under Section 106 and, potentially, Section 4(f).
What elements are excluded from the Exemptions? Certain elements of the Interstate System, such as bridges, tunnels, and rest stops of national and/or exceptional significance, are excluded from the provisions of the Exemptions when designated by FHWA. The Section 106 exemption sets forth the criteria for excluding those elements when they:
How are national and exceptional significance defined in the Exemptions? Both terms are used in their National Register of Historic Places (NR) context as defined in NR Bulletin 15. Properties of national significance are those that meet one or more of the NR criteria having a nationwide scope; e.g. under Criterion A, the associated events must be of national significance while exceptional resources must be of extraordinary importance.
What process will be used to identify those elements of the Interstate System that possess national or exceptional significance? FHWA HQ will be overseeing a contract to conduct facilitated meetings within each state to identify elements of the Interstate that should be excluded from the respective exemptions. The discussions will involve the FHWA Division Offices, State Departments of Transportation and other facility owners, and State Historic Preservation Officers (SHPO). Once draft lists are compiled for each state, the public and other interested parties will be given the opportunity to comment on the proposed sites and suggest additional sites for consideration on the final list of excluded elements.
How will disputes among a state's participating agencies and organizations be resolved? FHWA HQ will consult directly with the objecting parties to resolve any disagreements. FHWA HQ will make the final decision as to what properties will be on the list of elements excluded from the Exemptions.
Do the Exemptions apply outside of the Interstate ROW? No. Elements outside of the ROW that have been identified as historic properties in their own right will continue to reviewed under both Sections 4(f) and 106 when any Federal action may affect them. Resources that lie within the Interstate ROW, but are not part of the Interstate System (e.g., buried archeological sites) will also continue to be subject to review under both Sections 4(f) and 106.
How will the list of exclusions to the 4(f)/106 Exemptions be made public? A draft list of excluded elements will be published in the Federal Register for public comment prior to finalizing the list. All substantive comments will be considered in finalizing the list. Once finalized, the list of excluded elements will be published in the Federal Register and on the FHWA website on or before June 30, 2006.
Will the list of exclusions be added to once it is finalized? No. The list is intended to be final for the foreseeable future. There is a long term possibility that the ACHP may revisit the list of excluded elements in the future if it becomes evident that properties having achieved significance since its development are being overlooked (a 15 to 20 year horizon was mentioned during discussions to develop the Section 106 Exemption).
What role will integrity play in assessing the significance of a particular element? Consistent with NR Bulletin 15, resources determined to meet the criteria excluding them from the Exemptions should display sufficient integrity to convey their significance. Among the aspects of integrity are: location, setting, design, materials, workmanship, feeling, and association.