On August 17, 2018, the Advisory Council on Historic Preservation (ACHP), in coordination with the U.S. DOT, issued a Program Comment to Exempt Consideration of Effects to Rail Properties within Rail Rights-of-Way (83 FR 42920). The Program Comment is an alternative means for Federal agencies to fulfill their responsibilities under Section 106 of the National Historic Preservation Act for undertakings affecting rail properties within railroad and rail transit rights-of-way (rail ROW).

The Program Comment established two methods for exempting consideration of effects to rail properties located within rail ROW: an activities-based approach and a property-based approach.

• Activities-based approach – Under the activities-based approach, undertakings to maintain, improve, or upgrade rail properties located in rail ROW and that are limited to the activities specified in Appendix A to the Program Comment are exempt from Section 106 review. The list includes a variety of activities that, based on USDOT experience conducting Section 106 reviews for transportation-related undertakings, are likely to result in minimal or no adverse effect to historic properties. The activities-based approach went into effect on August 17, 2018, the date the Program Comment was approved by the ACHP.


• Property Based Approach – The property-based approach is an optional approach allowing a Project Sponsor to propose, and FTA to designate, “excluded historic rail properties” within a specified study area. The properties designated as excluded historic rail properties by FTA would remain subject to Section 106 review, application of Appendix A: Exempted Activities List, or application of another applicable Section 106 program alternative, depending on the nature of the undertaking and potential effects to historic properties. Under the property-based approach, effects to all other evaluated rail properties in the study area that are not designated as excluded historic rail properties by FTA would be exempt from Section 106 review. The final guidance for implementing the property-based approach is available here.

Related Resources:

• Implementation Guidance: Final Guidance for Implementing the Optional Property-Based Approach to Exempting Consideration of Effects to Rail Properties within Rail Rights-of-Way under Section 106 of the National Historic Preservation Act (October 2019).
   
• Training webinars:
   
  • Activities-based approach webinar (October 25, 2018)
  • Property-based approach webinar (December 12, 2019)