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Section 2: Laws Applying to Historic Bridges

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Federal Laws

Overview. When a proposed project will impact a historic bridge, project development must proceed in accordance with federal regulations set forth in Section 106 of the National Historic Preservation Act (NHPA). Section 106 references additional regulations, including the National Environmental Policy Act (NEPA) and Section 4(f) of the Department of Transportation Act. These laws are in place to ensure that agencies consider impacts to historic properties and make efforts to preserve these properties.

Section 106. Section 106 regulations can be found in Title 36, Part 800 of the Code of Federal Regulations (36 CFR 800). The purpose of Section 106 is to require agencies to identify historic properties which may be adversely affected by a proposed project, and to assess how the property might be affected. The Section 106 process requires public involvement with state and local entities, including the State Historic Preservation Officer (SHPO) and other consulting parties such as county historical commissions.

NEPA. NEPA regulations are similar to Section 106 regulations in that they require agencies to assess impacts to historic properties that may result from a proposed project, and to engage the public and other agencies with these findings. Public involvement activities required under NEPA should be integrated with those required under Section 106 whenever possible. Consult with the TxDOT Environmental Affairs Division (ENV) Historian for guidance in developing a public involvement campaign. Additional information can be found in TxDOT ENV’s Environmental Handbook. Handouts for use in public meetings are available at the Advisory Council on Historic Preservation website.

FHWA assigned TxDOT most of the FHWA NEPA responsibilities for environmental review, consultation, or other actions required under federal environmental law that pertain to the review or approval of specific highway, railroad, public transportation, and multimodal projects. The responsibilities were assigned under the Surface Transportation Project Delivery Program, referred to as the NEPA assignment program, and codified in the U.S. Code at 23 USC 327.

The assigned responsibilities are subject to the same procedural and substantive requirements as previously applied to FHWA. The assignment program does not preempt or interfere with any power, jurisdiction, responsibility, or authority of an agency, excluding FWHA, under applicable law and regulations. More information about the assignment program requirements can be found in the TxDOT Environmental Compliance Toolkits available on the ENV website.

Section 4(f). The results of the Section 106 and NEPA coordination processes are integrated into the Section 4(f) process and documentation. All historic bridge projects undergoing the Section 4(f) process must be coordinated and approved through ENV. ENV takes into consideration the information and results gathered through the Section 106 coordination process prior to rendering a final Section 4(f) decision.

Section 4(f) regulations (23 CFR 774) require that agencies conduct an analysis as part of the project planning process to determine if any feasible or prudent alternatives exist to avoid or minimize harm to a historic bridge. For more information on the Section 4(f) process, see the Section 4(f) Policy Paper implemented by FHWA. If a historic bridge will be left in its original location as a monument or a pedestrian facility, and its integrity and value will be maintained, FHWA has stated that Section 4(f) does not apply. In these cases, TxDOT requires the bridge’s owner to develop and implement a maintenance plan to ensure the continuing historic integrity of the bridge.

Note that any historic bridge removed from vehicular service may not be placed back in vehicular service at any location.

The alternatives analysis is required for all historic bridges that will be demolished, relocated, or otherwise adversely affected if federal funds are used to fund all or a portion of the project.

Each Section 4(f) alternative must be examined, evaluated, and thoroughly documented before any decision is made to demolish a historic bridge or to market it for non-vehicular use. The alternatives analysis must be conducted in accordance with FHWA regulations for programmatic evaluations for historic bridges.

Section 4(f) alternatives include:

TxDOT considers the following alternatives for each historic bridge project to minimize harm to the structure while meeting the need and purpose of the project:

Additional guidance on Section 4(f) procedures and documentation can be found in TxDOT’s Historic Bridge Programmatic Section 4(f) Guidelines and Standards of Uniformity. Detailed information about developing the alternatives is provided in Chapter 3 of this manual.

23 USC 144(g). Federal surface transportation funding legislation (23 USC 144(g)) requires TxDOT to inventory all on- and off-system bridges and to determine the historic significance of the bridges in the inventory. These regulations encourage TxDOT to retain, rehabilitate, adaptively reuse, and study historic bridges. This legislation also requires TxDOT to make available any bridges which are no longer suitable for vehicular use and will not be preserved as a monument. This process, known as marketing, is initiated once ENV determines that Section 4(f) standards have been met; bridges are then made available for donation to other governmental or responsible private entities. See Chapter 4 for additional information about marketing historic bridges.

Other Regulations. Additional regulations apply to historic bridges that have been deemed suitable for rehabilitation. Historic bridge rehabilitation projects are required to meet the standards outlined in Secretary of the Interior's Standards for the Treatment of Historic Properties (36 CFR Chapter 1 Part 68).

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State Laws

Texas Natural Resource Code. Chapter 191 of the Texas Natural Resource Code provides definitions for historic properties, including bridges, which are listed in the National Register of Historic Places or are listed as state antiquities landmarks (SALs). This legislation prohibits demolition or alteration of historic properties without consultation and approval from the Texas Historical Commission (THC). TxDOT works cooperatively with the THC on projects utilizing state funds that impact a bridge listed on the National Register of Historic Places (NRHP) or as an SAL. The full text of Chapter 191 is available in the Texas Natural Resource Code.

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