Section 106 of the National Historic Preservation Act (NHPA) (54 U.S.C. § 300301), imposes a responsibility on federal agencies to “take into account the effect of” their licensing decisions on properties included in, or eligible for inclusion in, the National Register of Historic Places, and, prior to approval of an undertaking, to afford the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment. ACHP has promulgated implementing regulations for the NHPA at Section 800 of Title 36, Code of Federal Regulations (36 C.F.R. § 800).
The Surface Transportation Board, through its Office of Environmental Analysis (OEA), undertakes the Section 106 process in railroad licensing proceedings. These include proceedings in which a railroad seeks STB authorization to abandon a rail line or acquire or construct a new rail line. The STB’s environmental regulations also include provisions on historic preservation, which can be found at 49 C.F.R. § 1105.8. These regulations detail the types of actions for which railroad applicants must prepare and submit historic reports (documents providing the STB and relevant State Historic Preservation Officer(s) with sufficient information to conduct the Section 106 consultation process required by NHPA). The regulations also set forth the types of actions that generally do not affect historic sites and structures, and therefore do not require a historic report.
When Section 106 applies, OEA must consult with the relevant State Historic Preservation Officer(s), as well as other interested parties, to identify historic properties, determine if they would be adversely affected, and, if so, consider appropriate mitigation. In rail line abandonment proceedings, the STB may impose a temporary condition prohibiting railroads from taking steps to salvage track materials or alter sites or structures until the Section 106 process is completed. This has the effect of maintaining the status quo pending completion of the Section 106 process.
When a historic property is involved, the STB’s power to protect it is very limited. First, the STB’s conditioning power is restricted to the particular property involved in the action under the agency’s review. Second, the STB’s conditioning power extends only to the railroad applicant’s property; it does not extend to property not owned by the applicant. Third, property owned by the applicant but not used or useful for the applicant’s railroad operations is generally not subject to the STB’s conditioning power. In short, the STB’s conditioning power applies only to the railroad applicant(s); the agency cannot impose or enforce preservation conditions on properties or parties that are not subject to agency jurisdiction.
For more information about the NHPA and the Section 106 process, please see the Advisory Council on Historic Preservation’s website at www.achp.gov. For more information on the Board’s historic review process, please review the regulations (49 C.F.R. § 1105.8) or click here.
Applicants seeking authority from the Board to abandon railroad lines may act on behalf of the Board when complying with the Section 106 regulations of the NHPA. Specifically, applicants are authorized to initiate the Section 106 review process and carry out some of its steps, but the Board retains overall responsibility for the Section 106 review. See 36 C.F.R. § 800.2(c)(4); 49 C.F.R. Part 1105. A copy of the letter delegating this authority can be found here.