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Legislative Update
 

June 29, 2012 | Volume 15 | Number 30

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Transportation Deal Reached - What Does it Mean for Preservation? Yesterday, the Conference Committee charged with working out a compromise for a new national Transportation Bill released their final report, clearing the way for votes in the House and Senate today - only 24 hours prior to the expiration of the existing law. After weeks of speculation, the key issues to preservationists - funding via the Transportation Enhancements program and exemptions and substitutions to environmental and cultural review processes now have some clarity. Thanks in part to the strong advocacy by Preservation Action, our members, and our national partners, the news may not be perfect - but it is not entirely bad. Preservation Action and its partners are still analyzing the 550+ page bill, but below is a chart offering an early glimpse at where we seem to stand on some of our key issues: Transportation Enhancements (TE) After several attempts to eliminate TE, or at least remove preservation activities from the list of eligible projects, a compromise renames TE as "Transportation Alternatives," and reduces the number of eligible activities - but retains "historic preservation and rehabilitation of historic transportation facilities." It also seems as if basic "Main Street" improvements might be covered as well. However... TA must compete with other programs for total of $808 million -about the total amount TE received in 2009. Half of the funds must be made available directly to certain metropolitan/local governments on a competitive basis. The States will have some added flexibility on how they use their portion, but we are still reviewing the language. +\- Substitution of Section 106 for 4(f), or State Environmental Laws The proposal to permit Section 106 Review in lieu of 4(f) was not included in the final bill - preserving the stronger standards present in the latter review process. Instead of substituting state laws, The Secretary of Transportation is required to perform a study of the various state review processes to determine where duplication might be eliminated. + Arbitrary Time Limits for Review House language would have deemed projects "approved" if NEPA reviews were not completed within 270 days. This was not included. Instead there are a number of provisions included that outline a mediation and consultative conflict resolution process to accelerate project completion. The Secretary is also required to establish rules to encourage programmatic agreements that eliminate duplication. + Exemption from Section 106 Review for disposal/sale/lease of property This provision was not included. + Exemption from NEPA Review for advance acquisition by States of property This proposal unfortunately survives. The ability for States to purchase property (for an anticipated federally funded transportation project) in advance of full reviews can easily bias/limit alternatives. Acknowledging this, the language at least requires that the states certify in writing that the acquisition will not have an adverse environmental impact, and will not limit alternatives. It also appears that Section 106 would still apply. More analysis is going to be necessary to determine the final impact. - Categorical Exclusions from NEPA Review in Emergencies Provision included, but slightly more specific. Previous language seemed ambiguous, seemingly allowing for disaster recovery construction and repair without any review. As written this provision exempts from Environmental Assessment and Environmental Impact Statements the reconstruction or repair of roads, highways and bridges if in the same location, is of the same design, capacity, and dimensions. Materials, however, are not mentioned. The Secretary is instructed to propose rules as to how to accomplish this categorical exclusion. +\- Other Categorical Exclusions From Project Review The bill instructs the Secretary to develop regulations for the categorical exclusion of projects from Environmental Assessment and Environmental Impact Statement requirements if they are in an existing "right-of-way." Section 106 would still apply. It also similarly instructs the Secretary to develop regulations for the establishment of other categorical exclusions. Fortunately this affords a chance to compromise in the regulation writing process, but it could open the door for potentially inadequate review. Uncertain Exemption from NEPA Review of projects $10 million or less, or if only 15% or less federally funded Modified. Projects of $5 million or less or 15% of total cost is federally funded are exempt from Environmental Impact Statement or Environmental Assessment requirements under NEPA. Unless the project costs more than $30 million. Then exemption does not apply. Section 106 still applies, and the Secretary is required to promulgate regulations for how to carry this out. +/- We are still analyzing the bill, and will report more as details emerge. But the bottom line seems to be we will still have access to funding for preservation via the Transportation law, however greater competition with other programs for a capped pot of money, and the flexibility of states to make some other choices, means without advocacy at the State and Local levels, reduced funding is very likely. Additionally, many (but not all) of the most damaging provisions that would have substantially gutted the project review process have been either defeated or modified. Still others have been punted to the Secretary for the establishment of regulations - meaning there could be an opportunity to work through very specific issues during that process. Interior Appropriations Bill Passes Full Committee Yesterday the House Committee on Appropriations passed the FY 2013 spending package for Interior, Environment and Related Agencies. Although a number of amendments were included to strip the EPA of funding and limit their regulatory powers, for preservationists, the bill is almost identical to the one the subcommittee passed last week. (Summary below). The only change was reauthorization of some expiring National Heritage Areas which was added to a Manager's Amendment. There is still no companion Bill in the Senate and, given the fact that body is using a higher top-line spending number (established during last year's debt-ceiling negotiations), there is not widespread optimism that agreement will be reached prior to the end of this fiscal year.   2009 2010 2011 2012 (House Proposal) 2012 (Senate Proposal) 2012 (Enacted) 2013 (President Request) 2013 (House Proposal)* SHPOs $42.5 $46.5 $46.4 $42.5 $47 $47 $46.9 $42.5 THPOs $7 $8 $7.9 $7 $9 $9 $8.9 $7 SAT $20 $25 0 0 $8 0 0 0 PA 0 $4.6 0 0 0 0 0 0 ACHP $5.4 $5.9 $5.9 $5.4 $6.1 $6.1 $5.7 $5.7 Heritage Areas $16 $18 $17.8 $8.9 $17.4 $17.4 $9.3 $9.3 Historic Estate Tax Bill Introduced in House Last week, Rep. Heath Shuler (D-NC) introduced H.R. 5982, the companion bill to the Senator Richard Burr’s S. 2209 that would protect historic landmarks and property from “unfairly punitive” estate taxes. The language of both bills is identical and essentially provides a way for historic estates to stay family owned. As we previously reported, the legislation would require that any estate taxes be assessed based upon an ongoing business valuation rather than simply one that is asset-based. To be eligible, the property must have been a private residence or farm that has been a National Historic Landmark for at least 25 years. Furthermore, the property has to be open for public visitation for at least 25 years after the death of the owner. Approximately 200 properties nationwide could benefit from this legislation.

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Select Preservation Bill Monitor

H.R. 2555: Historic Homeownership Revitalization Act of 2011
Sponsored by: Rep. Michael Turner (R-OH), Rep. Russ Carnahan (D-MO)
Summary: Would establish a historic rehabilitation tax credit for homeowners and developers of historic homes.
Status: Referred to House Committee on Ways and Means.

H.R. 2479, S. 2074: Creating American Prosperity Through Preservation Act
Sponsored by: Rep. Aaron Schock (R-IL), Rep. Earl Blumenauer (D-OR)
Sponsored by: Sen. Ben Cardin (D-MD), Sen. Olympia Snowe (R-ME)
Summary: Would amend the existing commercial rehabilitation tax credit to create a larger credit for smaller projects, improve usability by non-profits, clarify the age of eligibility, exempt state credits from federal income tax, and establish an energy efficiency supplement.
Status: Referred to House Committee on Ways and Means.

H.R. 5930: Preserving America's Downtowns and Heritage Act of 2012
Sponsored by: Rep. David McKinley (R-WV)
Summary: Would increase the existing commercial rehabilitation tax credit to 25% and increase the existing 10% "non-historic" tax credit for older buildings to 12%. Would also establish a historic homeowner tax credit.
Status: Referred to House Committee on Ways and Means.

S. 1685: Rehabilitation of Historic Schools Act of 2011
Sponsored by: Sen. Jim Webb (D-VA), Sen. Mark Warner (R-VA)
Summary: Would amend the existing commercial rehabilitation tax credit to allow rehabilitation expenditures for a qualified public educational facility (defined as a school facility which is part of a public elementary or secondary school and is owned by a private, for-profit corporation pursuant to a public-private partnership agreement) to qualify for the rehabilitation tax credit.
Status: Referred to Senate Committee on Finance

H.R. 1505: National Security and Federal Lands Protection Act
Sponsored by: Rep. Rob Bishop (R-UT)
Summary: Would waive activities related to border security enforcement from several review laws, including NEPA, NHPA, the Antiquities Act and the National Park Service Organic Act. The waiver would cover "certain sections of the international border between the United States and Mexico and between the United States and Canada [and] shall be considered to apply to all sections of the international land and maritime borders of the United States within 100 miles of the international land and maritime borders of the United States."
Status: AMENDED to removed maritime borders, and more narrowly focus eligible activities. Incorporated into H.R. 2578 and PASSED HOUSE June 19, 2012. Moves to Senate.

H.R. 1734 & S. 1503: Civilian Property Realignment Act
Sponsored by: Rep. Jeff Denham (R-CA)
Sponsored by: Sen. Scott Brown (R-MA)
Summary: Would establish a Civilian Property Realignment Board charged with, in consultation with local communities, identifying and analyzing surplus federal property for sale, transfer or disposal.
Status: PASSED HOUSE Feb., 2012. Referred to Senate Committee on Environment & Public Works.

S. 1081: Project Delivery Improvement Act
Sponsored by: Sen. Lisa Murkowski (R-AK)
Summary: Eliminates several provisions dealing with and considering impacts to historic sites, exempting them from highway and transportation laws.
Status: Referred to Senate Committee on Environment and Public Works. Similar provisions have been worked into House and Senate Transportation Reauthorization proposals.

H.R. 4099, the National Heritage Area Act of 2012
Sponsored by: Rep. Charlie Dent (R-PA) and Rep. Paul Tonko (D-NY)
Summary: Establishes program legislation and metrics for National Heritage Areas.
Status: Referred to House Committee on Natural Resources.

Any Bill introduced in any Congress can be found on Thomas/Library of Congress.

The full calendar for the House of Representatives can be found here.

The full calendar for the Senate can be found here.

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Every day, Preservation Action protects and promotes our nation’s core historic preservation programs by making connections between constituents and Congress. Our staff and members improve federal historic preservation policies, including incentives for adaptive reuse projects, by connecting policy makers with the information and insights of experts, professionals and citizens.

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