DRIVE Act: Clearing Things Up

A lot of news (and panic) is rapidly circulating among the preservation and archaeological communities as the Developing a Reliable and Innovative Vision for the Economy Act – the DRIVE Act (S. 1647, sponsored by Sen. Inhofe (R-OK)) – makes its way through Congress. It passed the Senate on July 30 as an amendment to H.R. 22.

Drawing everyone’s ire is Section 11116 of H.R. 22 (formerly Section 1116 of the Senate’s DRIVE Act), which in part orders the Secretary of Transportation to “align, to the maximum extent practicable, with the requirements of the National Environmental Policy Act of 1969 (42 U.S.C. 4231 et seq.) and section 306108 of title 54 [Section 106 of the National Historic Preservation Act].” Commentaries on Section 11116 express deep concern that it will eliminate review under Department of Transportation Act Section 4(f), which mandates that the administering department at the federal DOT may not approve the use of a Section 4(f) property unless a determination is made that there is no prudent and feasible alternative to the use of the property and the action includes all possible planning to minimize harm, or that the use will have a de minimis (i.e., trifling or minimal) impact on the property.

National Trust President & CEO Stephanie Meeks published a widely circulated op-ed in The Hill’s Congress Blog on July 29, arguing that “Section 11116 … essentially guts the requirement that transportation projects take the least harmful alternative around a historic landmark, if avoiding it altogether isn’t ‘feasible and prudent.’”

Clarifying Section 11116

Section 11116 would not completely eliminate 4(f) reviews. Rather, it states that if the DOT determines there is no feasible and prudent alternative to avoid use of an historic site (that is, properties listed in or eligible for listing in the National Register of Historic Places), the Secretary shall inform applicable SHPOs and THPOs, the ACHP, and the Department of Interior of the determination and ask for their concurrence. If they all concur, then the DOT can satisfy the requirements of Section 4(f) through treatment of the historic site as stipulated in a Section 106 memorandum of agreement or programmatic agreement.

Currently, if the DOT uses a historic site or other protected property and the impact is not de minimis, the DOT prepares an individual Section 4(f) evaluation, which can be a time consuming process. (The Federal Highway Administration has five programmatic evaluations that it can apply to a project, if appropriate, which are basically streamlined individual evaluations.) The 4(f) evaluation requires the DOT to demonstrate that there are no feasible and prudent alternatives that avoid the use of the Section 4(f) property, and if there are no such alternatives, the DOT identifies measures to minimize harm to the property.

Under the proposed changes in Section 11116, if the parties agree that there is no feasible and prudent alternative that avoids impacts to an historic site, then the impacts on the site are not taken into account in the individual Section 4(f) evaluation process. Also, the proposed changes will have little impact upon archaeological resources, since 4(f) protection only rarely applies to archaeological sites. As the Federal Highway Administration’s and Federal Transit Administration’s Section 4(f) regulations explain, a National Register listed or eligible archaeological site is not protected under Section 4(f) if the site is important chiefly because of what can be learned by data recovery and has minimal value for preservation in place.

Finally, with the House in recess until after Labor Day, the Act has a minimal chance of progressing, particularly because lawmakers are unlikely to agree on how to pay for a long-term transportation bill. That being said, there is concern among state DOTs that involving Interior in this new review process might actually delay projects rather than streamline them, since Interior already takes months to approve Section 4(f) reviews. Accordingly, involving Interior in the concurrence process might further slow down project delivery, and grow the incentive to reduce protections for historic sites. Also, the Act would place the burden of consulting with the DOT to determine what is feasible and prudent on SHPOs, THPOs, and the ACHP, a task outside their NHPA-mandated responsibilities.

It appears that while there are ample grounds to oppose Section 11116, and to watch this and other transportation proposals closely for impacts on historic and archaeological resources, we should resist the urge to panic.