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  • Disclaimer: Any opinions, findings, and recommendations expressed in the group area discussions are solely those of the authors and do not necessarily reflect the views of the United States Government, the Department of Transportation, or the Federal Highway Administration.
Post
Edited: 4/24/2012 8:36 AM

Historic Bridge bypassing and 4(f)

We are looking at some local agency projects where an historic bridge will be bypassed by a new alignment bridge and left in place, but closed off to vehicular and other use.  The local agency is willing to enter into a preservation agreement to maintain the bridges in place and abide by the Secretary's Standards in maintenance activities.  Our SHPO would still consider this an "adverse effect" under Section 106 because the bridges are no longer transportation facilities and the alteration of the visual setting caused by the new facilities nearby.  However, they would concur with a statement that the action (in light of the preservation agreement) does not "substantially diminish the features and attributes of the property that render it eligible for the NRHP".  Can this language be used to eliminate the need to go through the historic bridge programmatic 4(f)evaluation process?
2011-07-07 13:22:58
Posted: 4/24/2012 8:36 AM
Patrick
I think you can use this language, and your knowledge of preservation to say that the bridge will be treated as elligible, regardless of whether an evaluation is preliminary or formal.
7/20/2011 2:18 PM
Posted: 4/24/2012 8:36 AM
I tend to agree as regards the discussion of substantial impairment.  That term is really specific to constructive use and, in this context, seems to cloud the main issue about direct use.  What may be more helpful is to look at both question 4a and 4b of the policy paper respectively (all bold emphasis mine): 
(4a) "...Section 4(f) would apply only when an historic bridge or highway is demolished, or if the historic quality for which the facility was determined to be eligible for the National Register is adversely affected by the proposed improvement… Where FHWA determines that the facility will not be adversely affected the SHPO/THPO must concur with the determination or FHWA must seek further input from the ACHP," and
(4b) "…when the historic bridge is left in its original location if its historic value will be maintained."

Further, 36CFR Part 800.5(a)(1) states:  "An adverse effect is found when an undertaking may alter, directly or indirectly, any of the characteristics of a historic property that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property's location, design, setting, materials, workmanship, feeling, or association."

Since the SHPO statement that of no substantial diminishment removes any consideration of constructive use from the mix, the real question here is -- Does the SHPO finding of Adverse Effect mean that there is a direct use of the bridge within the meaning of Section 4(f)?

Since "substantially diminish" appears to be a higher threshold than "alter" or "diminish," the SHPO findings seem possible.   SHPO did not concur to the no adverse effect finding as required by 4a so, it appears that there may be a direct Section 4(f) use of the property.  The only recourse to the finding is in disagreement resolution processes discussed by others.

Now, FHWA could find that the historic value of the bridge will be maintained as set forth in 4b, despite the Adverse Effect finding, but that would be up to FHWA.  Maybe they could peg this to the "will not substantially diminish" finding by SHPO or, maybe not -- I am not sure.

I would suggest requesting the SHPO to clarify its finding and the basis for the finding directly to the Criteria of Adverse Effect by citing exactly how the simple removal of the bridge from service (with maintenance provisions) rises to the level of an "adverse effect."  Then FHWA can decide who it would like to proceed from there.
7/19/2011 3:58 PM
Posted: 4/24/2012 8:36 AM
Dave Gamble
In many similar situations, SHPOs have backed adverse effect determinations because the bridge will no longer be functioning as a transportation facility or similar opinions.  But to reach the level of substantial impairment caused by the proximity of the new bridge to the original bridge requires much more evaluation including consultation with FHWA HQ before a constructive use could be determined to exist.  Question 4B in the 2005 (not 2007) Section 4(f) Policy Paper applies.
7/19/2011 11:35 AM
Posted: 4/24/2012 8:36 AM
I'm the original poster and completely agree with you and the above post.  Up to now our SHPO would not concur with a "no adverse effect" determination in such situations, and as you point out going through the entire diagreement process would result in 106 gumming us to death with little practical result.  If SHPO is willing to concur with a "not substantially impair" language to accomodate the 4(f) process, I don't care what tortured sematic logic they use to mesh this with an adverse effect opinion under Section 106.
7/18/2011 1:11 PM
Posted: 4/24/2012 8:36 AM
Thank you.  I had the same question.  Certainly a semantic argument could be made between adverse effect and 'substantially' diminish.  But, it would have to be a very subtle distinction.  Even then, would any transportation authority want to go through the whole disagreement process under either Section 4(f) or Section 106 for something that will make little practical difference in the end?
7/15/2011 1:45 PM
Posted: 4/24/2012 8:36 AM
Jim
I do not understand how your SHPO considers this an "adverse effect" under Section 106 when they concur that the action does not "substantially diminish the features and attributes of the property that render it eligible for the NRHP". I would think it would be an "effect" due to the involvement you describe, but because of their concurrence with that statement, why would it not be a "no adverse effect?"  Also, the Section 106 determination that counts is that of FHWA.  Do they concur that it is an adverse effect?
7/15/2011 1:08 PM
Posted: 4/24/2012 8:36 AM
Can't use de minimis in conjunction with an adverse effect!
7/12/2011 2:00 PM
Posted: 4/24/2012 8:36 AM
planner
I have used the approached as described in the policy paper.  The question before you will be, does SHPO's adverse effect equal substantial impairment?
7/11/2011 11:38 AM
Posted: 4/24/2012 8:36 AM
Let me just add this... in the May 2007 Policy paper, Q&A 4B seems to address your question directly:

" Question B: Will Section 4(f) apply to the replacement of an historic bridge that is left in place?

Answer B: Section 4(f) does not apply to the replacement of an historic bridge on new location when the historic bridge is left in its original location if its historic value will be maintained, and the proximity impacts of the new bridge do not result in a substantial impairment of the historic bridge. To satisfy the first requirement, FHWA requires the establishment of a mechanism of continued maintenance to avoid the circumstance of harm to the bridge due to neglect."
7/8/2011 3:13 PM
Posted: 4/24/2012 8:36 AM
Sounds like it should.  However, should FHWA determine differently, then ask them if they would apply de minimis to it.
7/8/2011 2:44 PM
Posted: 4/24/2012 8:36 AM
I would hope so. If not, the historic bridge programmatic 4(f) is relatively straightforward especially if coordinated with Section 106.
7/8/2011 1:15 PM
Posted: 4/24/2012 8:36 AM
If there is no "use" then 4(f) doesn't apply. 
7/7/2011 5:11 PM