[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
     THE HISTORIC PRESERVATION OF RAILROAD PROPERTY AND FACILITIES

=======================================================================

                               (110-134)

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON

             RAILROADS, PIPELINES, AND HAZARDOUS MATERIALS

                                 OF THE

                              COMMITTEE ON
                   TRANSPORTATION AND INFRASTRUCTURE
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                              JUNE 5, 2008

                               __________


                       Printed for the use of the
             Committee on Transportation and Infrastructure




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             COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

                 JAMES L. OBERSTAR, Minnesota, Chairman

NICK J. RAHALL, II, West Virginia,   JOHN L. MICA, Florida
Vice Chair                           DON YOUNG, Alaska
PETER A. DeFAZIO, Oregon             THOMAS E. PETRI, Wisconsin
JERRY F. COSTELLO, Illinois          HOWARD COBLE, North Carolina
ELEANOR HOLMES NORTON, District of   JOHN J. DUNCAN, Jr., Tennessee
Columbia                             WAYNE T. GILCHREST, Maryland
JERROLD NADLER, New York             VERNON J. EHLERS, Michigan
CORRINE BROWN, Florida               STEVEN C. LaTOURETTE, Ohio
BOB FILNER, California               FRANK A. LoBIONDO, New Jersey
EDDIE BERNICE JOHNSON, Texas         JERRY MORAN, Kansas
GENE TAYLOR, Mississippi             GARY G. MILLER, California
ELIJAH E. CUMMINGS, Maryland         ROBIN HAYES, North Carolina
ELLEN O. TAUSCHER, California        HENRY E. BROWN, Jr., South 
LEONARD L. BOSWELL, Iowa             Carolina
TIM HOLDEN, Pennsylvania             TIMOTHY V. JOHNSON, Illinois
BRIAN BAIRD, Washington              TODD RUSSELL PLATTS, Pennsylvania
RICK LARSEN, Washington              SAM GRAVES, Missouri
MICHAEL E. CAPUANO, Massachusetts    BILL SHUSTER, Pennsylvania
TIMOTHY H. BISHOP, New York          JOHN BOOZMAN, Arkansas
MICHAEL H. MICHAUD, Maine            SHELLEY MOORE CAPITO, West 
BRIAN HIGGINS, New York              Virginia
RUSS CARNAHAN, Missouri              JIM GERLACH, Pennsylvania
JOHN T. SALAZAR, Colorado            MARIO DIAZ-BALART, Florida
GRACE F. NAPOLITANO, California      CHARLES W. DENT, Pennsylvania
DANIEL LIPINSKI, Illinois            TED POE, Texas
DORIS O. MATSUI, California          DAVID G. REICHERT, Washington
NICK LAMPSON, Texas                  CONNIE MACK, Florida
ZACHARY T. SPACE, Ohio               JOHN R. `RANDY' KUHL, Jr., New 
MAZIE K. HIRONO, Hawaii              York
BRUCE L. BRALEY, Iowa                LYNN A WESTMORELAND, Georgia
JASON ALTMIRE, Pennsylvania          CHARLES W. BOUSTANY, Jr., 
TIMOTHY J. WALZ, Minnesota           Louisiana
HEATH SHULER, North Carolina         JEAN SCHMIDT, Ohio
MICHAEL A. ACURI, New York           CANDICE S. MILLER, Michigan
HARRY E. MITCHELL, Arizona           THELMA D. DRAKE, Virginia
CHRISTOPHER P. CARNEY, Pennsylvania  MARY FALLIN, Oklahoma
JOHN J. HALL, New York               VERN BUCHANAN, Florida
STEVE KAGEN, Wisconsin               ROBERT E. LATTA, Ohio
STEVE COHEN, Tennessee
JERRY McNERNEY, California
LAURA A. RICHARDSON, California
ALBIO SIRES, New Jersey

                                  (ii)

?

     SUBCOMMITTEE ON RAILROADS, PIPELINES, AND HAZARDOUS MATERIALS

                   CORRINE BROWN, Florida Chairwoman

JERROLD NADLER, New York             BILL SHUSTER, Pennylvania
LEONARD L. BOSWELL, Iowa             THOMAS E. PETRI, Wisconsin
GRACE F. NAPOLITANO, California      WAYNE T. GILCHREST, Maryland
NICK LAMPSON, Texas                  STEVEN C. LaTOURETTE, Ohio
ZACHARY T. SPACE, Ohio, Vice Chair   JERRY MORAN, Kansas
BRUCE L. BRALEY, Iowa                GARY G. MILLER, California
TIMOTHY J. WALZ, Minnesota           HENRY E. BROWN, Jr., South 
NICK J. RAHALL II, West Virginia     Carolina
PETER A. DeFAZIO, Oregon             TIMOTHY V. JOHNSON, Illinois
JERRY F. COSTELLO, Illinois          TODD RUSSELL PLATTS, Pennsylvania
EDDIE BERNICE JOHNSON, Texas         SAM GRAVES, Missouri
ELIJAH E. CUMMINGS, Maryland         JIM GERLACH, Pennsylvania
MICHAEL H. MICHAUD, Maine            MARIO DIAZ-BALART, Florida
DANIEL LIPINSKI, Illinois            LYNN A. WESTMORELND, Georgia
ALBIO SIRES, New Jersey              JOHN L. MICA, Florida
JAMES L. OBERSTAR, Minnesota           (ex officio)
  (ex officio)

                                 (iii)

                                CONTENTS

                                                                   Page

Summary of Subject Matter........................................    vi

                               TESTIMONY

Brooks, Thomas E., Assistant Vice President for Projects and 
  Chief Engineer, Alaska Railroad................................     6
Fowler, John M., Executive Director, Advisory Council on Historic 
  Preservation...................................................     6
Fowler, Marianne Wesley, Senior Vice President of Federal 
  Relations, Rails-To-Trails Conservancy.........................     6
Little, J. Rodney, Director, Division of Historical and Cultural 
  Programs, Maryland Historical Trust............................     6
Merritt, Elizabeth, Deputy General Counsel, National Trust for 
  Historic Preservation..........................................     6
Simmons, Patrick B., Director, Rail Division, North Carolina 
  Department of Transportation...................................     6

          PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS

Brown, Hon. Corrine, of Florida..................................    30
Costello, Hon. Jerry F., of Illinois.............................    35
Cummings, Hon. Elijah E., of Maryland............................    37

               PREPARED STATEMENTS SUBMITTED BY WITNESSES

Brooks, Thomas E.................................................    41
Fowler, John M...................................................    56
Fowler, Marianne Wesley..........................................    60
Little, J. Rodney................................................    68
Merritt, Elizabeth...............................................    76
Simmons, Patrick B...............................................    86

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       HISTORIC PRESERVATION OF RAILROAD PROPERTY AND FACILITIES

                              ----------                              


                         Thursday, June 5, 2008

                  House of Representatives,
    Committee on Transportation and Infrastructure,
       Subcommittee on Railroads, Pipelines, and Hazardous 
                                                 Materials,
                                                    Washington, DC.
    The Subcommittee met, pursuant to call, at 2:06 p.m., in 
Room 2167, Rayburn House Office Building, Hon. Corrine Brown 
[Chairman of the Subcommittee] presiding.
    Ms. Brown of Florida. Will the Railroad, Pipelines and 
Hazardous Material officially come to order.
    The Subcommittee is meeting today to hear testimony on the 
historical preservation of railroad property and facilities. 
Today's hearing is in response to an amendment offered and 
withdrawn during Full Committee consideration of the Passenger 
Rail Investment and Improvement Act of 2008. The amendment 
would prevent Federal historical protection for an entire 
railroad line or corridor in response to a claim by the Alaskan 
Railroad and the North Carolina Department of Transportation 
that the historical protection process has led to costly delays 
in capital improvement with no benefits to historical 
preservation.
    I believe the Committee goal should be to ensure that any 
action it takes respects the valuable process of protecting our 
Nation's heritage while ensuring a fair process to rail 
providers that allows them to adapt to future needs without 
undue costs and delays.
    The testimony of the Advisory Council and the national 
trust points that there are administrative agreements to 
resolve the problems raised by both parties. This hearing has 
brought the problem raised by the Alaskan Railroad and the 
North Carolina to the attention of the Advisory Council. I 
think there is a willingness to resolve these concerns 
administratively, and I would encourage all of the parties 
involved to work toward an equitable solution to any possible 
disagreements that have arisen.
    We must ensure that we are not looking for a solution to a 
problem that may not exist. Prior to this markup, the issue of 
historical preservation and its impact on the rail system have 
never raised with me or the Committee, and I haven't heard from 
any other rail providers facing similar problems. However, I 
look forward to learning more about the problems from the 
witnesses appearing today and pledge to work with my colleagues 
to ensure that the Alaskan Railroad and the State of North 
Carolina and all other rail providers are being treated fairly.
    I want to thank our panelists for agreeing to join us 
today, and I look forward to hearing your testimony.
    Before I yield to Mr. Shuster, I ask that Members be given 
14 days to revise and extend their remarks and to permit the 
submission of additional statements and materials by Members 
and witnesses without a statement by the preservation action. 
Without objection, so ordered.
    I now yield to Mr. Shuster for his opening statement.
    Mr. Shuster. Thank you, Madam Chairwoman, and I appreciate 
you holding this hearing today.
    As you know, the amendment that I offered concerns 
historical designations of railroads. I have worked with Mr. 
Young from Alaska and Mr. Coble on this amendment. We began to 
hear complaints that historical designations were impeding some 
of the railroads' ability to maintain tracks in a safe manner.
    We know that this issue is particularly important, as I 
mentioned, to Alaska and to North Carolina and, of course, 
potentially other rail lines around the country, and again, Mr. 
Coble and Mr. Young were very involved in crafting this 
amendment.
    In Alaska there are attempts by State historic preservation 
officials to declare entire stretches of lines as historic. I 
am not talking about historical train stations, but actual 
track that trains run on. Even mundane projects have to be 
reviewed by the Historic Preservation Office, costing the 
railroad both time and money. If we go too far down this path 
of historic preservation bogging down necessary improvements 
and safety modifications with red tape, I believe we could be 
setting ourselves up for an historic accident. We had a similar 
situation regarding interstate highways, and we corrected this 
problem in SAFETEA-LU when we passed it a couple of years ago.
    This amendment would give railroads exactly the same 
treatment as interstate highways for historical purposes and 
would exempt rail lines from historical designation. I'm open 
to suggestions as to how to craft this amendment to protect 
clearly historical stations and possibly bridges and tunnels, 
but I do not believe that entire mile-long stretches of active 
track should ever be considered historic.
    The provisions will also benefit Amtrak freight and 
commuter lines.
    From a policy standpoint, I think we need to give the 
Department of Transportation a role in ensuring the protection 
of rail facilities of true historic interest while at the same 
time ensuring that rail safety is not compromised. And I hope, 
Madam Chair, you will work with me on this important issue as 
we move forward with the Amtrak reauthorization bill. And with 
that, I yield back.
    Ms. Brown of Florida. Mr. Oberstar.
    Mr. Oberstar. Thank you, Madam Chair, and I thank the 
witnesses for being here, Mr. Shuster for participating, and 
for the issues that were raised in the course of our markup.
    We meet, in fact, pursuant to discussions held during the 
markup of the Amtrak authorization bill, discussions concerning 
statements that the Federal historic preservation process has 
led to costly delays in improvements in infrastructure for 
railroads, with little or no benefit for historic preservation. 
Those complaints came from rail development interests in Alaska 
and in North Carolina, and the remedy proposed at the time was 
to limit historical preservation to very specific facilities, 
terminals, bridges, but not entire lines or corridors for 
railroads.
    Well, we need to explore that issue in the course of 
today's hearing. Railroads certainly are deserving of 
historical preservation. They have been at the center of our 
development as a transcontinental economy, as transcontinental 
transportation. They are, along with the Interstate Highway 
System, at the very basis of our prowess, our economic prowess 
as a Nation.
    Certainly one of the most vivid and dramatic examples of 
that significance of railroading in our history is the pounding 
of the golden spike that linked the Central Pacific and the 
Union Pacific and connected the United States coast to coast. 
It is the subject of many History Channel programs, which I 
delight in observing.
    Many of our rail lines that cross through mountainous 
terrains are marvels of engineering. Rail stations are marvels 
and models of outstanding architectural achievement in 
engineering and construction achievement. But I also at the 
same time point out that it was the destruction of Pennsylvania 
Station in New York that was a major factor that led to the 
enactment of the National Historic Preservation Act of 1966. I 
remember that very well serving on the staff here.
    I think we need to understand how the Federal historic 
preservation process works. Federal law does not absolutely 
prohibit Federal actions that permit the impairment of historic 
properties. Rather, Federal law requires that before the action 
occurs, there should be consideration of a range of actions to 
mitigate or to avoid the impact, consideration of alternatives 
that produce similar benefit without destroying historic 
properties.
    Railroads are covered by a multiplicity of historic 
preservation laws; 2,300-plus rail properties are listed in the 
National Register. They are subject to those procedures. And 
additional rail properties are covered because when there is a 
proposed Federal action, there will be historic protection for 
sites that meet the criteria for listing those sites on the 
National Register. And even if the sites are not listed, there 
is an issue that comes up.
    The rail properties that are covered in the register, and I 
have a complete list of these here, include bridges, tunnels 
and viaducts. There are 19 corridors or railroads that are 
listed now in the National Register. They may be listed for 
their historical significance as links between important 
cities. They may be listed for excellence in construction or 
for their scenic value, such as the Stone Arch Bridge in 
Minneapolis that goes from Nicollet Island and which James J. 
Hill, the founder of the Great Northern Railroad, insisted be 
built on an S curve so that the passengers on his freight 
train, as they went around the curve, could look back and have 
something to see of significance and beauty. And it was built 
with Mankato stone, which is a unique yellowish-colored stone 
that is very attractive and also very resistant and has 
survived all these--well, let's see. That was built in 1893, 
and it is still with us today. But it was on the National 
Register of Historic Places, so when the Great Northern 
Railroad became BNSF, and the BNSF decided they no longer 
needed to move freight through that area, that bridge wasn't 
destroyed. It was protected, and it is today a bus, rail, 
pedestrian and bicycling link, and thousands of people come 
every year to lunch on Nicollet Island to walk the bridge, to 
see the beauty that railroad magnate James J. Hill created and 
that the Empire Builder railroad once traversed.
    So we have Rails-to-Trails because we have been able to 
preserve corridors that once were rail facilities. And just on 
Sunday I did the Paul Bunyan Trail ride for our 10th year. 
That, too, was launched in 1893; 90 years later it was 
terminated. The freight rail service was terminated on that 
stretch, about 100 miles of rail. And Terry McGaughey, the 
midwife of the Paul Bunyan Trail, went up like a 20th-century 
Paul Revere asking the communities to band together to put up 
funds to preserve that right-of-way and convert it to a 
bicycle/pedestrian facility. And today we 650,000 users of the 
Paul Bunyan Trail. We did the 11th annual Ride with Jim bicycle 
event on the Paul Bunyan Trail. With my new cobalt hip, I did a 
25-mile ride on the trail.
    So today we are going to hear from interests, from the 
Advisory Council, the National Trust, but I want the Committee 
to pay attention to the administrative remedies available to 
deal with the problems raised.
    Historic preservation may be required for individual 
facilities that in themselves may not be historically 
significant, but they are part of a corridor that is 
historically significant. And I know there are problems that 
were raised on behalf of Alaska and on behalf of North Carolina 
in our markup of the Amtrak bill. If there are problems with 
the processing that takes time to do these things, we can deal 
with the process. But I think that we can speed that process up 
as we did in SAFETEA-LU under the direction of the Chairman, 
then-Chairman Young.
    A comparison has been made to the Interstate Highway 
System, and the Interstate Highway System is not 50 years old; 
the act is 50 years old. There were some interests in the 
course of our work on SAFETEA-LU said, oh, my goodness, the sky 
is falling, the interstate is 50 years old, it is going to be 
subject to historic preservation, and we won't be able to add 
or change interchanges, or add lanes or delete lanes or 
whatever. The interstate isn't 50 years old; one or two 
segments are, but it is an evolving program. And so the 
exception was for the entire interstate system as a law, as a 
structure.
    So, use that panel, that pattern, for the rail program, 
well, then, I think there are some distinctions that need to be 
cited. And I think the request was for a much broader exception 
than was necessary to meet the needs. And I want to listen 
carefully to the concerns and to the obstacles and find ways 
that we can accomplish this without doing harm to the National 
Trust For Historic Preservation nor doing harm to railroads who 
need investment for expansion.
    Madam Chair, thank you.
    Ms. Brown of Florida. Thank you.
    The gentleman from Alaska.
    Mr. Young. Thank you, Madam Chairman.
    I thank the Chairman for his comments.
    We have a unique situation in Alaska. We have a railroad 
that is 50 years old and actually older. McKinley came up and 
drove the golden spike, and it is still the major means of 
transportation within the State of Alaska. And we are not 
asking to destroy any historical sites. In fact, a lot of the 
sites in Alaska already been identified and are protected under 
my amendment. But we are in the process of trying to replace 
approximately 50 bridges that need to be replaced, or we are 
going to lose lives.
    We are in the process of straightening out the rail in 
areas which are extremely dangerous, because in the old days we 
didn't have the technology nor the equipment. And it is 
extremely important that this railroad still function on time 
because we can't do the work we need to do because we have 
different weather patterns, much like Minnesota, and we have to 
have the ability to do so. And we have a concern that there are 
those within the historical preservation group that will 
utilize this to imperil the ability for the Alaskan Railroad to 
operate. And that is the purpose of my amendment.
    And I truly believe that we ought to expand it like we did 
in the highway bill to a point where there cannot be an 
impediment to improve the safety of passengers and freight that 
are utilizing the railroad. And as I mentioned before, the 
railroad has been very good under the leadership and the 
tutelage of the managers, the board itself, of protecting, but 
it would be very nearly impossible to go through some person 
under the present act itself on historical preservation who 
will say they haven't taken consideration the replacement of 
glass with the original type glass in a certain terminal. That 
would be, to me, an extension of not logic, but that does 
happen in our society.
    So I am asking you, especially this Committee, to look at 
the railroad in total that it is declared historical, and it 
does happen, and the effect upon the economy of Alaska, the 
ability to move products, the ability to move military to and 
fro from our port, and the safety of those that ride the train.
    And so I do think there is room here to work this out, but 
I don't want one law to take and impede another agency that is 
trying to do what they should do for the good of the State of 
Alaska and this Nation.
    I originally intended to have just this Alaska in this 
program and not all railroads, but I think all railroads do 
have a problem. But I am not going to go that far if I can have 
some relief in Alaska for this railroad which is crucial to the 
economy of the State.
    And so I do think there is some room here. I will listen to 
the testimony from these witnesses, and let's solve a problem 
that can be very damaging in the State of Alaska. And with that 
I yield back the balance.
    Ms. Brown of Florida. Thank you.
    I would like to welcome and introduce today's panel. Our 
first witness is Mr. John Fowler, Executive Director of the 
Advisory Council of the Historic Preservation. Our second 
witness is Mr. Thomas Brooks, assistant vice president and 
project and chief engineer of the Alaska Railroad. The third is 
Patrick Simmons, director of the rail division of the North 
Carolina Department of Transportation. And our fourth witness 
is Ms. Elizabeth Merritt, deputy general counsel for the 
National Trust for Historic Preservation. Fifth is Rodney 
Little, a director of the division of historic and cultural 
programs for the Maryland Historic Trust.
    And our final witness is Mrs. Fowler, senior vice president 
of Federal relations of the Rail-to-Trail preservation action, 
has submitted testimony for the record. A copy of the testimony 
is available to each of the Members' folders.
    Let me remind the witnesses, under our Committee rules oral 
statements must be limited to 5 minutes, but the entire 
statement will appear in the record. We will also allow the 
entire panel to testify before the questioning of the witness.
    We are pleased to have you all here this afternoon, and I 
recognize Mr. Fowler for his testimony.

   TESTIMONY OF JOHN M. FOWLER, EXECUTIVE DIRECTOR, ADVISORY 
 COUNCIL ON HISTORIC PRESERVATION; THOMAS E. BROOKS, ASSISTANT 
    VICE PRESIDENT FOR PROJECTS AND CHIEF ENGINEER, ALASKA 
 RAILROAD; PATRICK B. SIMMONS, DIRECTOR, RAIL DIVISION, NORTH 
   CAROLINA DEPARTMENT OF TRANSPORTATION; J. RODNEY LITTLE, 
    DIRECTOR, DIVISION OF HISTORICAL AND CULTURAL PROGRAMS, 
 MARYLAND HISTORICAL TRUST; ELIZABETH MERRITT, DEPUTY GENERAL 
COUNSEL, NATIONAL TRUST FOR HISTORIC PRESERVATION; AND MARIANNE 
  WESLEY FOWLER, SENIOR VICE PRESIDENT OF FEDERAL RELATIONS, 
                  RAILS-TO-TRAILS CONSERVANCY

    Mr. John M. Fowler. Thank you, Madam Chairman. It is a 
pleasure to be here on behalf of the Advisory Council on 
Historic Preservation. The Council is an independent Federal 
agency created by the National Historic Preservation Act to 
advise the President and the Congress and to oversee the 
section 106 process. It is made up of 23 Presidential 
appointees, Federal agency heads and leaders of preservation 
organizations. It includes the Secretary of Transportation in 
its membership.
    Section 106 of the National Historic Preservation Act is 
the primary Federal protection for historic properties. It sets 
up a consultative process to evaluate the impacts of Federal 
activities on historic properties. It has limits. There has to 
be Federal involvement, and in the end the process is advisory. 
It can't stop a project.
    Over 100,000 cases a year go through section 106 review. 
All but a few of these are resolved in an expeditious manner. 
The ACHP's regulations which implement section 106 also offer a 
variety of tools to deal with special needs. We use them 
regularly for cases like the one presented today.
    The railroad industry's exemption request is not at all 
unprecedented. Several industries in the past have sought 
congressional action to avoid historic preservation reviews. In 
1989, the National Aeronautics and Space Administration sought 
a legislative exemption from section 106 claiming that it 
placed an undue burden on their programs. The Congress rejected 
it and asked the Advisory Council to develop administrative 
remedies. The ACHP worked with the National Aeronautics and 
Space Administration to develop an agreement that still guides 
section 106 compliance for NASA.
    In 2001, the pipeline industry sought a legislative 
exemption for historic pipelines, pipelines such as World War 
II's famous Big and Little Inch pipelines. The Congress again 
rejected the request, and the ACHP worked with the Federal 
Energy Regulatory Commission to complete an exemption created 
through the section 106 regulations.
    In 2004, the telecommunications industry wanted a 
legislative exemption for cell tower construction. Congress 
again refused to grant such an exemption, and the ACHP worked 
with the Federal Communications Commission to develop a 
national agreement that streamlines section 106 reviews for 
cell towers.
    And as has been noted, the Federal Highway Administration 
initially sought a legislative exemption for dealing with the 
Interstate Highway System, but working cooperatively with the 
ACHP they developed an administrative exemption that now covers 
the entire Interstate Highway System.
    I think the message is consistent. After examining the 
issue, the Congress has regularly found that the basic law of 
section 106 is sound. There are adequate administrative tools 
that exist, and legislative exemptions are unnecessary. The 
ACHP is prepared to work with the rail industry, Federal 
agencies, and stakeholders to reach the same kind of successful 
conclusion to the present challenge without resort to 
legislative exemptions.
    Thank you.
    Ms. Brown of Florida. Mr. Brooks.
    Mr. Brooks. Thank you, Chairman Brown, and Chairman 
Oberstar and Members of the Subcommittee, for holding this 
hearing and inviting me to speak here today on behalf of the 
Alaska Railroad.
    I would like to thank Representative Shuster for offering 
the amendment at the markup and Representative Young for his 
leadership in bringing the issue to the attention of the 
Committee.
    My name is Tom Brooks. I am assistant vice president of 
projects and chief engineer at the Alaska Railroad. Alaska 
Railroad has a 500-mile-long mainline running from the Ports of 
Seward, Whittier and Anchorage to the interior city of 
Fairbanks. We offer a full--year-round full passenger service 
and freight. The railroad carried over half a million 
passengers in 2007, and we have extensive freight operations in 
interstate commerce. Because of our service to five military 
bases, we have been designated by the Department of Defense as 
a Strategic Railroad.
    The railroad was built and operated by the U.S. Government 
from 1914, and it was sold to the State of Alaska in 1985. And 
we are proud of our history, and we actively support historic 
preservation in numerous ways. These are detailed in the back 
of materials.
    However, the effect of expansively applied historical laws 
and regulations imperils our ability to maintain our railroads 
safely and efficiently and compromises the operational business 
agility vital to our railroad's mission of stimulating State 
economic development. We support an amendment along the lines 
of the Shuster amendment that was offered and then withdrawn at 
the Full Committee markup pending this hearing.
    I would like to start by sharing a current problem that 
illustrates our dilemma very well. We have a bridge at milepost 
432.1 that is 160 foot long and spans a small creek at a remote 
location. Two separate independent historians determined this 
bridge has no historic merit on its own; however, it has been, 
in practical effect, declared historic by our State's Historic 
Preservation Officer, or SHPO, merely because it is part of the 
Alaska Railroad. This has triggered an extensive bureaucratic 
process that is meant to preserve and protect historic 
structures.
    The foundation of this bridge is failing badly, and we want 
to replace it in 2008. We can't. We are currently passing 
around documents between the Alaska Railroad the Federal 
Transportation Administration, the National Park Service and 
the Alaska SHPO. We expect to obtain the required approval so 
the replacement can be completed in the fall of 2009. In the 
meantime we have got to get about 150,000 passengers, quite a 
bit of freight and military equipment across that bridge 
safely. We believe we can do this, but it is really expensive 
and very unnecessary. We would like to replace the bridge this 
season.
    We submit that this is a misapplication of public process 
and squanders Federal resources and public funds. There is 
really no reason that we couldn't have replaced this bridge 
this year. The problem is created by overzealous attempts to 
identify the railroad as a single historic corridor, and this 
designation automatically triggers the historic protections for 
this mundane railroad feature, and it lacks historic merit on 
its own.
    Bridge 432.1 represents the sixth time we have been through 
this process since 2002. It is expensive and delays our efforts 
to improve safety and efficiency and to serve our customers.
    The Shuster amendment will ensure that the historic 
preservation standards continue to be applied to railroad 
features with historic merit in their own right, not because 
they are merely part of a railroad historic district. This 
amendment would provide the same relief to railroads that was 
afforded to the Interstate Highway System through SAFETEA-LU, 
and like the Interstate Highway System, railroads have been 
evolving since their inception and continue to do so. They have 
been constructed, expanded and upgraded to serve our national 
transportation needs. Their integrity depends on continuing 
maintenance and upgrades so they continue to operate and move 
passengers and freight efficiently.
    The Alaska Railroad is a critical component of our State's 
transportation infrastructure and must continue its mission as 
an economic tool. Without the Shuster amendment there is 
immediate danger that our entire railroad corridor will in 
practical effect be treated as an historic district.
    Safety improvements and routine maintenance and even 
mundane features such as bridge 432.1 are incurring undue delay 
and costs, and the problem will get even worse in the future if 
the railroad corridor is either officially declared a historic 
district or, as is currently the case, it is simply treated as 
if we are. While avenues exist to appeal historic 
determinations, they are made to bodies like the Advisory 
Council on Historic Preservation or the keeper of the National 
Register. These entities are firmly grounded in historic 
preservation and have a far different mission from running a 
safe transportation system.
    In closing, we will gladly continue to support efforts to 
preserve Alaska's history and the history of Alaska's railroad, 
but we must also ensure safe operations. Through the Shuster 
amendment we will continue our historic preservation efforts, 
focusing them on truly deserving properties while moving ahead 
with our mission.
    Thank you for opportunity to speak, and I will be happy to 
answer any questions.
    Ms. Brown of Florida. Mr. Simmons.
    Mr. Simmons. Thank you, Chairwoman Brown, and Chairman 
Oberstar, and Ranking Member Shuster and distinguished Members 
of the Committee. My name is Patrick Simmons. I am director of 
the rail division with the North Carolina Department of 
Transportation.
    NCDOT is blessed to have the full-service rail program. Our 
program is nationally recognized for our work with the 
intercity passenger rail service, and I am pleased to report 
that the ridership on the two State-sponsored trains is up 20 
percent over the last several months.
    Just yesterday Governor Easley announced that we will add 
another State-sponsored train as soon as it can be done in 
order to meet the growing demand. We are developing the 
federally designated Southeast High-Speed Rail Corridor, which 
we refer to as SEHSR. That will link the Northeast with the 
Southeastern States.
    We administer our State's highway-railroad grade crossing 
safety program, and we are proud to have partnered with Norfolk 
Southern Railway and the Federal Railroad Administration to 
create something called the Sealed Corridor. Later this year 
USDOT will report to the Congress how the Sealed Corridor has 
saved lives at highway-railroad crossings.
    We partner with Norfolk Southern, CSX Transportation and 
the North Carolina Railroad in an ongoing program of 
infrastructure investments that improve safety, add network 
capacity and reduce travel times. We partner with the FRA to 
operate a railroad industry safety inspection program. We 
partner with our railroad community to do economic development 
projects. We also partner with the Virginia Department of Rail 
and Public Transportation, and the Federal Highway 
Administration, and FRA and the community of some 50 State and 
local agencies to develop the design and environmental 
evaluation of SEHSR.
    I am not here today to offend our historic preservation 
community, for I am very proud of our achievements in North 
Carolina to preserve historic train stations, equipment, and 
our contributions to the North Carolina Transportation Museum. 
Last year the National Trust recognized our body of work and 
honored us with the John Chafee Award for Excellence in Public 
Policy. I am here, however, to point out what I believe to be a 
significant impediment to our Nation's developing 
transportation policy: designation of railroad corridors as 
historic. My concern is that such a designation adds 
significant process, time and cost to project delivery. The 
prospect of such a designation also will constrain our ability 
as a State to work with the freight railroads to add capacity 
and improve safety.
    We are at the beginning of a new era in public-private 
partnerships in our industry. Both parties wish to leverage 
funds from each other to add sorely needed capacity and enhance 
mobility. Adding process and cost--and again, it impedes 
project delivery.
    I note, Mr. Chairman, or Madam Chairwoman, that the 
railroads are largely privately owned, while the interstate 
network is a public asset. SAFETEA-LU included the exemption 
from designation for the Interstate Highway System. This 
provision effectively places rail at a competitive 
disadvantage. It also favors public investment in highways 
versus the developing public-private partnerships between 
States and railroads.
    By not leveling the playing field, our program of 
infrastructure investment is further constrained from taking 
advantage of the enhanced economy, efficiency and productivity 
that the rail mode can offer. Already our Class 1 railroads are 
wary of governmental regulation, and rightfully so in this 
case. A requirement such as the historic designation that can 
apply broadly across their privately owned network will produce 
a setting that will make the task of entering into public-
private partnerships all the more difficult.
    Our State has had experience as well with the facilities. 
We have had some challenges there that we were able to 
negotiate and overcome and go forward with those projects in 
good spirit of working together. However, I believe that 
designating railroad corridors as separate and apart from the 
facilities and structures as historic adds significant time and 
cost to project development. It is an impediment to adding 
network capacity and enhancing safety. I believe it will hinder 
our ability to foster these public-private partnerships, and I 
am not sure that it adds materially to the body of knowledge 
and protects our historic resources. Therefore, I urge the 
Committee to reconsider the amendment offered by Congressman 
Shuster, and I thank you for the opportunity to be here today 
and will be pleased to respond to any questions.
    Thank you, Madam Chairwoman.
    Ms. Brown of Florida. Thank you.
    The bell--we are going to stand in recess for about 25 
minutes. We have a series of votes, and we will be reconvening 
as soon as the votes are over. Thank you.
    Will the Committee come back to order, please? And Ms. 
Merritt will get started, please.
    Ms. Merritt. Good afternoon, Chairwoman Brown and 
distinguished Members of the Committee. I am Elizabeth Merritt, 
Deputy General Counsel for National Trust for Historic 
Preservation.
    Ms. Brown of Florida. Excuse me. Could you please pull your 
mike up?
    Ms. Merritt. I appreciate the opportunity to testify before 
you today to share the National Trust's serious concerns about 
a proposed major exemption from Federal historic preservation 
laws. The National Trust was chartered by Congress more than a 
half century ago to lead the private historic preservation 
movement in the United States.
    During the past 2-1/2 decades in which I have served as in-
house counsel at the Trust, the Trust has worked tirelessly to 
implement and enforce section 106 of the National Historic 
Preservation Act and section 4(f) of the Department of 
Transportation Act, the laws from which the railroads are 
seeking a broad legislative exemption.
    The Trust has served not only as a preservation advocate in 
the context of individual projects, but we have also been 
actively involved over the years in shaping regulations and 
programmatic agreements, and occasionally even legislation 
which is carefully designed to address complex implementation 
issues and special approaches tailored to specific agency 
needs.
    We have described in our testimony, as has the Advisory 
Council, a number of examples in which these administrative 
solutions have been very successful in addressing precisely the 
kinds of concerns that the railroads have presented here. The 
examples provided by the railroads simply do not represent the 
kinds of issues that Congress should be dragged into resolving. 
We urge you not to get pulled into the weeds here. The Federal 
and State preservation agencies represented at this table have 
the expertise and the successful models to address and resolve 
these concerns without the need to do a hatchet job on our 
Federal historic preservation laws.
    The centrality of America's historic railroad resources to 
our national heritage is well-documented and summarized in the 
testimony. Our rail corridors have reflected and defined the 
spirit of our Nation, its culture, history and economy. As a 
result, railroad preservation has been a longstanding priority 
in Federal law and policy.
    We have provided for the record a list of all 2,486 
railroad resources that are listed in the National Register. 
This is just a sample of all of the historic properties 
eligible for the National Register nationwide.
    Federal historic preservation laws are designed to achieve 
a balance between preserving the integrity of our historic 
resources and providing for their efficient and responsible 
continued use. The fact that a rail corridor is still in use is 
not a reason for exempting it from consideration for 
preservation. On the contrary, when these corridors have 
legitimate historic significance, they deserve to be included 
within the scope of our Federal preservation laws.
    Other active transportation facilities such as airports and 
historic parkways are managed in a way that respects their 
historic character and complies with Federal law. The railroads 
should live up to the same standard.
    Of course, Federal preservation laws only apply when the 
railroads receive Federal funds or permits. In the absence of 
such Federal benefits, these preservation laws pose no barrier 
at all for the railroads to do whatever they want with their 
historic property, even destroying it. But it is not 
appropriate for private corporations or State agencies to use 
Federal taxpayer dollars to destroy historic resources without 
at least participating in the review process like other 
industries and agencies.
    There is no showing that the railroads are unduly or 
disproportionately burdened by preservation laws that all other 
industries follow when they receive Federal funds and permits. 
The section 106 regulations include a number of flexible tools 
that could be used to address the railroad's concerns. Our 
testimony mentions three in particular.
    The first is programmatic agreements which are often used 
to streamline or eliminate review from minor actions. For 
example, the North Carolina DOT recently signed a PA to 
streamline review for minor transportation projects throughout 
the State. According to the North Carolina SHPO, well over 100 
projects per year are reviewed under this PA and all have been 
resolved quickly and successfully. Why couldn't such a PA be 
developed for rail projects?
    As another example, the Alaska Railroad has a PA in place 
that allows for the replacement of all of its 57 historic 
timber bridges, further evidence that section 106 is not an 
obstacle to necessary upgrades.
    The second tool under section 106 is known as program 
comments, issued by the HCHP, which comment on an entire 
category of undertakings in lieu of individual reviews. These 
have been used extensively by the Defense Department to 
accomplish section 106 compliance for literally tens of 
thousands of historic properties.
    The third tool is that the ACHP can exempt certain 
categories of undertakings from section 106. This is the model 
used for the interstate system. However, consultation is 
required with the ACHP to develop and craft such an approach to 
ensure that it doesn't sweep too broadly. And the DOT has not 
yet initiated such consultation. The devil is in the details. 
And it should be the ACHP and the DOT rather than Congress 
undertaking the complex task of attempting to define the scope 
of an exemption.
    In addition to these administrative tools under section 
106, section 4(f) also has streamlining mechanisms which have 
not been brought to bear here. This is important because 
section 4(f) is a more stringent law. First, section 6009 of 
SAFETEA-LU included a new exemption for de minimis impacts on 
historic properties and other resources protected by section 
4(f). This was a carefully crafted, consensus-based amendment 
which the National Trust was actively involved in developing. 
We believe the de minimis exemption could be used to address 
many of the railroad's concerns regarding section 4(f). As far 
as we could tell, this has not been evaluated. In addition, 
FHWA has adopted detailed regulations and guidance and a number 
of programmatic section 4(f) evaluations which have also been 
used to streamline review under section 4(f). All of these 
tools should be fully evaluated before a legislative exemption 
is considered.
    In conclusion, there are proven administrative tools 
available and we are confident that all of the railroad's 
concerns can be addressed through consultation using these 
administrative tools. We respectfully ask Congress for the 
opportunity to show that those administrative solutions can 
work. The National Trust stands ready and willing to 
participate in that process. Thank you.
    Ms. Brown of Florida. Mr. Little.
    Mr. Little. Thank you, Madam Chairwoman. My name is Rodney 
Little. I am a member of the National Conference of State 
Historic Preservation Officers and I currently serve as the 
State Historic Preservation Officer for the State of Maryland.
    Madam Chairwoman, thank you and Ranking Member Shuster and 
Members of the Subcommittee for this opportunity to present our 
views of the National Conference of State Historic Preservation 
Officers.
    I have served as the State Historic Preservation Officer 
for Maryland for almost 30 years. In that time we have dealt in 
Maryland with a great many types of historic properties. We 
have our share of the signers of the Declaration of 
Independence, but we also have many sites that are in 
contemporary daily use and with high technological needs.
    For example, the oldest airport in the United States is in 
the State of Maryland. It was started in 1909. It is in 
continuous use today. And it has been on the National Register 
since about 1980. We have several other airports that are on 
the National Register.
    In the field of railroads, we deal every day with very 
historic railroad features. The first regular--the regular 
carrier passengers and freight in the United States, the B&O 
Railroad, started in Maryland and we deal with facilities of 
that railroad that date from the 1930s--or, I am sorry, the 
1830s.
    We have a very good working relationship with our 
transportation agencies regardless of modal form, and that 
certainly includes our rail authorities. I would note with 
pride that in the 30 years that I have been doing the work, 
while we have reviewed hundreds of railroad projects, including 
railroad projects and designated corridors, that there has 
never been a piece of litigation involving those railroad 
projects.
    Ms. Merritt and Mr. Fowler before me mentioned that there 
are a number of administrative remedies that perhaps have not 
been fully investigated here. And I certainly can testify to 
that from the State of Maryland.
    In Maryland we use what has been referred to as 
programmatic agreements or programmatic approaches. Let me cut 
through the bureaucratic jargon and talk a little bit about 
what those are. Over the years, the historic preservation 
review processes have evolved and are very effective in dealing 
with a wide variety and diversity of types of projects.
    However, every agency has different planning processes. The 
planning process for highway is very different than the 
planning process for a railroad, is very different than the 
planning process for a housing development. What we do in our 
State is we try to take a programmatic approach to those kinds 
of problems as opposed to a project-by-project review. That has 
worked very well, and as far as I have been able to see in this 
case, that programmatic approach has not been applied to some 
of these problems that we are talking about.
    In order for that to work, the State Historic Preservation 
Office has to be willing to enter into such programmatic 
approaches. It has to be willing to make compromises and trade-
offs up front. And likewise, the State or Federal agencies on 
the other side need to be willing and capable of carrying out 
those kind of sophisticated programmatic approaches. They work.
    In my long career I have, unfortunately, had to deal with 
quite a number of public projects that were subject to 
litigation on preservation issues. The first question that the 
courts always ask is, Are there administrative remedies that 
will take care of this issue? Have those administrative 
remedies been utilized? And have they been exhausted? Were this 
particular issue before the courts right now, I think they 
would send us all back to the drawing board and say, You have 
not exhausted the administrative remedies.
    Thank you very much.
    Ms. Brown of Florida. Ms. Fowler.
    Ms. Wesley Fowler. Madam Chair, Ms. Brown, Chairman 
Oberstar, Congressman Shuster, Congressman Young, other 
distinguished Committee Members, thank you for the privilege of 
addressing you today on this most important topic. I am 
Marianne Fowler, Senior Vice President of the Rails-to-Trails 
Conservancy.
    Let me draw your attention to the wall monitors, and I 
invite you to focus on the pictorial representations of 
historic railroad features. They are, after all, what this 
hearing is about. Many of them have been preserved through the 
auspices of the National Historic Preservation Act. Let me 
assure you, I will not be offended if you divide your attention 
between these pictures of America's railroad heritage and my 
words.
    RTC speaks today in opposition to any attempt to exempt 
railroad corridors and facilities from Federal historic 
preservation laws. Here is why: Congress has mandated that it 
is our, quote, national policy to preserve established railroad 
rights of way for future reactivation of rail service, to 
protect rail transportation corridors, and to encourage energy-
efficient transportation use.
    It is RTC's mission to aid in this process by identifying 
rail corridors that are not currently needed for rail 
transportation and work with communities to facilitate the 
conversion of these corridors into public trails and 
nonmotorized transportation corridors.
    Congress has given us three tools with which to accomplish 
this goal.
    First, the rail banking statute which allows for the 
transfer of a corridor on which a rail company no longer wants 
to conduct service to a willing trail manager. This process, 
however, depends upon not only the willingness of the interim 
trail manager, but also the willingness of the railroads. And 
the railroads are not always willing.
    It is in this context in which section 106 provides a 
critical constraint to the ability of private railroads to 
dismantle historic transportation corridors. To carry out its 
section 106 obligations, the Surface Transportation Board 
imposes conditions that temporarily bar railroads seeking 
abandonment authorization from removing any historic bridges, 
features, other features that require railroads to engage in 
historic preservation consultation. These preservation 
conditions give public agencies and potential trail managers 
the time necessary to undertake the due diligence and reviews 
necessary to proceed with public land acquisitions, and ensures 
that important historic structures and features that will allow 
for trail use and enhance the trail experience are not removed 
until these consultations are complete.
    It is the synergy between these two provisions of Federal 
law that have now given us over 15,000 miles of active, open, 
rail trail and have also given us many more miles of rail 
trail, rail corridor that is in project stage. And so we oppose 
this exemption.
    Last night I had occasion to speak to the president of one 
of America's railroads. And he said to me, Marianne, you can't 
expect railroads to care, railroad companies to care about the 
history, about the history of the railroads. Their obligation 
is to care about the economics of their company and the 
functionality of the system. And I thought for a moment. And I 
responded to him, no, I do expect you to care. I expect you to 
care the very most because you own our history, a history that 
so infuses the American sense of ourselves. It informs our 
literature. It informs our art. It informs our music. In some 
communities I am told it is even so much a part of that 
community that they have named their basketball team the 
Altoona Curves after a marvelous feat of railroad engineering 
that comes through the mountains and curves into Altoona. So 
gentlemen, I would ask you to rise to your higher 
responsibility of protecting our railroad heritage. Thank you 
very much.
    Ms. Brown of Florida. Thank you.
    And I thank all of you for your testimony. We will start 
with Mr. Oberstar for questioning.
    Mr. Oberstar. Thank you, Madam Chair. And I thank all the 
witnesses for their splendid testimony. I think that the 
frosting on the cake, the icing, if you will, is the show of 
railroad history captured in those slides. A wonderful 
representation. You finished with the project I started with in 
Minneapolis, the St. Anthony Falls Nicollet Island project.
    I want to come to the Alaska Railroad issue. And I have a 
timeline. Chairman Young provided Member high-priority project 
designation for replacement of this bridge 432.1 in SAFETEA-LU 
bill. And the Alaska Railroad undertook engineering analyses in 
the summer of 2007, showed the bridges in need of replacement. 
And the railroad submitted all the environmental requirements 
under NEPA to Federal Transit Administration in January of this 
year. Right?
    In March FTA determined the bridge was not eligible for 
National Register because it wasn't historic. In April the 
State SHPO, not the Federal Government, not an agency of the 
U.S. Government, not the Congress, your own State agency 
disagreed and determine the project would have an adverse 
effect because of the bridge association with the Alaska 
Railroad.
    Then the Alaska Railroad began a process of showing that 
there is no feasible or prudent alternative to replacing the 
bridge. And it completed that work in April. And FTA and the 
Alaska Railroad submitted that information to the National Park 
Service under the 4(f) provision for review, and FTA is 
expected to get a response in July from the Department of 
Interior. Is that correct?
    Mr. Brooks. That is our best guess, yes.
    Mr. Oberstar. That is not a horribly long process.
    Mr. Brooks. The problem we have is it causes us to meet the 
windows that we need for construction. We can't proceed with 
the project under Federal guidelines until all the approvals 
are in place. We basically have been unable to commit to 
ordering the steel for the bridge and nailing down some of 
those lead items.
    Mr. Oberstar. But from March through July, to get a process 
completed, is not an undue burden. If you had started the 
process last summer, you would be under construction now.
    Mr. Brooks. Well, I think the process is a fairly long 
process. We did start last summer with the second evaluation of 
the bridge history.
    Mr. Oberstar. That wasn't impeded by the historic 
preservation.
    Mr. Brooks. Well it is part of the historic preservation 
process. I mean, it takes a while to put all that together, use 
a historic--we were using a historical consultant to do it, so 
that we weren't able to have a historic evaluation to put 
before the FTA until December. We put that before them in early 
February--or early January, excuse me.
    Mr. Oberstar. Well, I really don't see the historic 
preservation provision--it caused the railroad to stop, take 
stock, make an assessment, evaluate the situation, go through a 
process that was beneficial for you, beneficial for the 
historic preservation process, and may well--I mean, there is 
the designation that there is no feasible prudent alternative. 
That is your own. Why do you need an exemption? Do you simply 
want not to go through a process at all?
    Mr. Brooks. I am sorry. The crux of the matter relates to 
whether it is prudent to do that. You know, it is always 
feasible to do something. If the Park Service were to determine 
that it is prudent to replace that bridge, we would have a very 
difficult time figuring out what to do with it. That process is 
very--you know, basically we are appealing what we do with our 
railroad to historians at the National Park Service.
    Mr. Oberstar. Well, and last year, according to documents 
that I have requested, the Alaska State Historic Preservations 
Office and the Federal Railroad Administration and your 
railroad signed a memorandum of agreement for replacement of 
timber bridges in the corridor of the railroad. Fifty-seven 
bridges are included in the agreement. The railroad agreed to 
retain two of them. Is that correct?
    Mr. Brooks. That is correct.
    Mr. Oberstar. Is that a burden on the railroad?
    Mr. Brooks. It is a minor burden on the railroad. We do 
have a programmatic agreement in place to govern our timber 
bridges. We have agreed that over a third of the bridges in our 
system are historic.
    Mr. Oberstar. The agreement gives you an out, to the extent 
possible.
    Mr. Brooks. I think that is a pretty strong obligation from 
our point of view.
    Mr. Oberstar. Mitigation measures include digitization of 
the documents, preparation of an annotated bibliography, 
creation of a timber bridge booklet. A lot of people consider 
timber bridges to be very significant structures, very 
important to our past and to our future.
    Railroading evokes the most sympathetic response from any 
transportation activity--I don't find people getting fired up 
about highways, but I do find they fight over a railroad 
bridge, a covered bridge, a railroad station. About a third of 
the cities in my district have a caboose or one of those old 
cow catcher locomotives on display at the entrance to the city 
or as you depart from the city on the other end. These are 
historic parts of our history, of our past. If it takes just a 
couple of months, or 3 months or 4 months, to go through a 
process and evaluate it, I don't see how we are creating a 
burden for you.
    Now, both Mr. Brooks, Mr. Simmons, are you opposed to 
having rail corridors designated in a historic preservation 
document?
    Mr. Simmons. Yes, sir. And I draw the distinction between a 
corridor and the facilities. As we have carried out our 
responsibilities, we have had many opportunities to work with 
historic facilities, historic structures, and to work through 
the issues that are relevant there. So we are okay there.
    With respect to rail corridors, I note that the corridor 
listing provided to the Committee, the handout included in Ms. 
Merritt's testimony, most of those railroads are either tourism 
railroads or abandoned. And the issue I am trying to bring 
before the Committee is, as we develop private-public 
partnerships in this country to make investments that add 
capacity and safety to active mainline major railroads, that 
that is a distinction. Those railroads do need to function.
    We honor our past in many different ways. But as we have 
these major transportation facilities, there will be a need to 
expand their capacity and to add--or to go down a pathway that 
adds this responsibility to the private sector and to the 
public sector in working with the private sector, will add 
process, will add cost. And, Mr. Chairman, it will make our 
task in the public arena all the more difficult.
    Mr. Oberstar. Well, there is another responsibility, and 
that is to the public and to the past. And in the years 1850 to 
1871, the Federal Government granted to the railroads 173 
million acres of public lands. That at the time, and today, 
represented in the lower 48, 9 percent of the total land 
surface of the United States for the public use, convenience 
and necessity; and the right to own the minerals below the 
surface and the timber above the surface and to sell that land.
    That was an enormous gift bestowed upon the railroads in 
the public interest to be managed by the private sector. And so 
now the public sector says, there is a historic value. We just 
want you to consider it.
    If we were to accept the language of the amendment proposed 
by Mr. Shuster, taking the language from SAFETEA-LU, corridors 
can be protected under that language, and are protected: 150 
miles of the Pennsylvania Turnpike under that language are 
protected; 60 miles of the Columbia, Oregon River Highway are 
protected; 30 miles of Alligator Alley in Florida are 
protected.
    So I leave you there for the moment to think about that 
language. Thank you, Madam Chair.
    Ms. Brown of Florida. Mr. Shuster.
    Mr. Shuster. Thank you, Madam Chairman. My question--well 
first, just in response to the Chairman, the railroads were 
deeded public lands in the 1850s through the 1870s. And I 
believe everything I have seen is that there has been a 
tremendous repayment to the public good and to the Federal 
Government by many various ways from shipping our troops for 
free on the rail system to--by the railroad putting those rail 
lines where they went through, the value of the Federal lands 
that were retained by the government increased in value, and 
then the government sold them or did various things. I don't 
know if we can continue to make that argument that there hasn't 
been a significant payback to the Federal Government, to 
America over the years. So I would make sure we put that on the 
record, and we need to consider that as we move forward with 
this.
    I don't think anybody is--and in the amendment, it does 
have protections for railroad stations and significant 
engineering structures. And my question to Mr. Fowler: Isn't it 
true section 106 of the process would remain in effect under my 
amendment? And doesn't that alleviate any of your concerns 
regarding protecting historic bridges, tunnels and stations?
    Mr. John M. Fowler. As I understand your amendment, that is 
correct. It would not affect the application of section 106. 
The 4(f) process of the Department of Transportation Act is a 
very important historic preservation law in the Federal 
establishment. And we are supportive of retaining its 
protections as appropriate.
    It is more inflexible than section 106 is, and I would 
certainly not advocate or support changing that without a very 
careful examination of what kind of flexibility does exist 
under the current law to meet the needs that the railroads are 
putting forward.
    Mr. Shuster. I think the idea behind the amendment that 
myself and Mr. Young are putting forward is not to necessarily 
eliminate the ability to identify corridors, but to limit it 
and to make it so that it is not on a State-by-State or local-
community-by-local-community. Allowing DOT to have that say is, 
I think, extremely important to the national transportation 
system and to the safety of that system.
    Mr. Simmons, could you talk a little bit about more--or, 
more specifically, public-private partnerships being hindered? 
Can you speak--are there specifically things moving forward now 
or just over the horizon that you are concerned about that this 
may cause a significant problem?
    Mr. Simmons. Yes, sir, Mr. Shuster. One of the challenges 
that we have taken up in our State is to develop a future high-
speed rail network. Our role has been to bring forward the 
environmental documentation, the environmental and preliminary 
engineering, on a corridor that stretches today from 
Washington, D.C. through Richmond, Virginia, to Raleigh down to 
Charlotte, North Carolina. There are other legs of that 
corridor that extend south to Savannah to Atlanta, east to 
Hampton Roads.
    For us to be able to actually construct on a date, sir, we 
will need an agreement with freight railroads; in this case, 
BCSX and Norfolk Southern as well as our own State-owned 
railroad, the North Carolina Railroad. And that is a 
challenging group to work with. They are very interested in 
their business interests, not to the exclusion of history, 
because each in their own way they celebrate that and work with 
that.
    But to apply designation to the corridor today, we are on 
the cusp of the designation from Petersburg to Raleigh, and I 
don't know how far that would extend. And I don't know that I 
am in a position to provide assurance to our Class I railroads 
that it wouldn't extend further.
    And I think that, while there may be a process in place, an 
appeals mechanism, it still makes the issue of bringing that to 
bear fruit, to actually be able to make the investments, to add 
capacity to those mainline railroads that provide for 
passengers and freight will be all the more challenging and all 
the more difficult. I will stop right there.
    Mr. Shuster. And just one final point that I would like to 
make, just to point out here that the national historic 
landmark or the National Register, which the horseshoe curve is 
on, which of course is in my district, which the ball team, AA 
Baseball Team, is named after. Norfolk Southern has done a 
fantastic job of making sure that they have upkept and there 
has been a facility built there so that railroaders, railroad 
buffs from around the world, can come see it.
    And as I have said, for as long as I know, the Norfolk 
Southern Railroad has done--and prior to that, Conrail did a 
great job on preserving that and making sure. And it is part of 
their mainline. So they have a vested interest in seeing that 
that part of their system is in good working order and a 
pleasant experience for all those who go to visit it.
    And if the Chairwoman would indulge me for one last 
comment, today is the final hearing that we are going to be 
joined by John Brennan who is departing us. He is becoming 
senior counsel at the Union Pacific Railroad. And it is a loss 
for the Committee and a great pickup for the UP. And I know 
that his wife, Maureen, and his two sons, John and James, which 
I guess they are not departing yet, but they will be moving to 
Omaha shortly, and I just want to thank John for his knowledge, 
for his guidance, his support and especially his friendship 
over the past couple of months.
    I became the Rail Subcommittee Chairman and knew something, 
but didn't have the kind of knowledge that John had. So he gave 
me a quick education on the nooks and crannies and the details 
of it. So he has been with the Committee 5 years, and he will 
be greatly missed. But I am sure we will be hearing from him 
from time to time when Union Pacific has issues that come 
before this Committee.
    So John, again, thanks so much for your knowledge and your 
experience.
    Mr. Oberstar. Would the gentleman yield?
    Mr. Shuster. Yes.
    Mr. Oberstar. I would like to join the gentleman, again, in 
complimenting John on his service to the Committee and his 
departure for new fields, but fields still within his area of 
expertise in railroading. He has a very keen understanding of 
the issues, an in-depth knowledge of railroad matters. And 
Union Pacific will benefit immensely. And he will join another 
former Committee staffer over there in the pursuit of the 
railroad's needs and in an operating capacity. And I compliment 
you on that. Thank you.
    Mr. Shuster. And I want to say to the Chairwoman, thanks 
again for this hearing. I have to excuse myself. But I am going 
to leave it in the able hands of the former Chairman and 
someone who has a real interest in this situation. So I yield 
back to the Chairwoman.
    Ms. Brown of Florida. Mr. Young.
    Mr. Young. Thank you, Madam Chairman. Did I hear myself or 
did I hear someone else say that they would support the TEA-LU 
provisions for historical definition that is in the bill; is 
that correct? Did I hear that?
    Mr. Oberstar. If the gentleman would yield. I simply cited 
that the language of SAFETEA-LU on historic preservation gives 
the--provides the authority to protect corridors. So----
    Mr. Young. I think I am hearing correctly. I just have to 
talk to the gentleman a little later. I appreciate it.
    Mr. Oberstar. Yes, please.
    Mr. Young. Again, Madam Chairman, my interest here is we 
have the only railroad in the State of Alaska. And there was no 
alternatives. We don't have a great highway system. It is the 
main carrier, and we want to improve it and upgrade it and make 
sure it is safe.
    Now, my information is we have had three bridges identified 
totally unsafe; in fact, should not be used. One is in Indiana 
and the other one is I believe in Denali; is that correct? 
Where is the other one? There was three of them. And then the 
rest of them are under question, if I am not mistaken, of the 
50 bridges.
    Mr. Brooks, your testimony indicates that designating the 
Alaska Railroad a historic district adds significantly to 
project schedules and costs, and hinders safety and 
advancements and operational improvement. But protection of 
historic resources is important and is required by law. How do 
you propose that the amendment ensures the historic resource 
will continue to be protected that is being offered by Mr. 
Shuster and myself?
    Mr. Brooks. Well, what we propose is that historic 
resources, in and of their own right, that have historic value 
would be protected under the 106 process. The amendment 
essentially proposes that if there is an adverse effect on a 
historic resource, it wouldn't have to go through 106--or 
excuse me 4(f). In addition, the railroad corridor issue, you 
cast a pretty wide net when you talk about a railroad corridor 
and you end up bringing a lot of bridges and other 
infrastructure into play in the 106 process and the 4(f) 
process that really have little or no historic merit.
    Mr. Young. The other thing is, Madam Chairman, this is one 
of the things that has concerned me. Let's say the railroad, 
you know, North Carolina or wherever it may be, and you go 
through this process and the SHPO or one of the historical 
groups says no. Who do you appeal to?
    Mr. Brooks. Actually, I don't know for sure. I know that 
our appeal processes have always ended up in the hands of 
historians, either at the Park Service or our SHPO----
    Mr. Young. So you really don't have an appeal to an outside 
source to say, this is meritorious or is not meritorious?
    Mr. Brooks. Not normally, no.
    Mr. Young. The second thing is, it appears to me--and the 
Chairman's question was--it seems to me the Alaskan SHPO just 
causes more problems than the national definition. Are they 
living off of the national definition? Or are they doing this 
on their own?
    Mr. Brooks. Well, I think the standards under the national 
historic preservation effort are being expanded widely and 
applied much more vigorously. For example, although we have had 
Federal funding for a number of years, we didn't have any need 
to exercise the 4(f) process before 2002. Since then we have 
been through it six times. And talking to the timber bridge 
MOU, which covers the 106 process, you can only have an MOU in 
place there. Whenever we do impact the timber bridge adversely, 
we do have to then follow it up with the 4(f) process. So we 
are still not out of that for whatever structures we have.
    Mr. Young. Madam Chair, I am a little concerned here 
because we have an individual on the SHPO board that--we have 
another historical barrier in the State that is being proposed 
to be adversely affected. And it would seem to me that there 
was an indication that there had been some transfer of dollars 
into the State program. There may be not as much of an 
objection. That goes back to my--there should be, somewhere 
along the line, people have a right to appeal outside of those 
interested in that issue. See, I want to believe in protecting 
historical things. But when I have a railroad that has to move 
all my troops and move my gravel and move my fossil fuels and 
move my food and move everything, the only real form of rail 
transportation, I don't want to see another agency within the 
Federal Government has been codified by the Congress to say, 
oh, no, you can't do that, but maybe we will help you out.
    I don't think that is fair. I think there ought to be a way 
that there is an outside source to say, all right, this really 
is not going to hurt the historical aspects of it. It is not 
going to change the railroad adversely, historically, and maybe 
we ought to go forth with it. I don't see who they appeal to.
    I am going to ask my counsel to look into this because I 
think that is crucially important in this process, that we know 
that there is somebody who could make that decision outside of 
historians. Why should the historians, when you want to do 
something, have the right to say no and stop the process of 
your rail from running? That is the thing I don't quite 
understand.
    Any one of the historians want to comment on that? Mr. 
Fowler, can you do that?
    Mr. John M. Fowler. No, sir.
    Mr. Young. You can't do that. You have not done that and no 
one else has done it.
    Mr. John M. Fowler. If I am reading your question 
correctly, the question of what is or is not historic is a 
decision that is made by the people that have the authority and 
the responsibility and the expertise to determine historic 
significance. So in the section 106 process, it is the State 
Historic Preservation Officer and then the keeper of the 
National Register.
    Mr. Young. May I interrupt? Having said that, we want to 
make an improvement. We want to replace a bridge, and that 
State Historical Officer says, no, you can't do it. Where does 
the railroad go?
    Mr. John M. Fowler. First of all, the State Historical 
Officer cannot say no, you cannot replace the bridge. Under 
section 106 if the State Historic Preservation Officer says 
this property is eligible for the National Register, that then 
requires the Federal agency that is providing the money--if the 
railroad is doing it, but with its own funds, there is no--
there is no Federal law involved. There is no application of 
section 106 because there has to be some Federal permission or 
Federal assistance.
    Mr. Young. But again, going back to the Alaska Railroad--
Madam Chair, my time has run out. Alaska Railroad is difficult 
to change that, because it was a Federal railroad, but it still 
was transferred to the State.
    Mr. John M. Fowler. Correct.
    Mr. Young. Now, who has the responsibility? Because there 
were Federal dollars involved, so that puts it under the 
jurisdiction of historical definition. And it goes back to, 
again, Mr. Brooks wants to put a bridge in. The State 
historical or the the Federal historical people say no. What 
recourse do they have?
    Mr. John M. Fowler. Well, again, as I understand it, the 
current Federal interest in the Alaska Railroad is only if the 
Federal Transit Administration or the Federal Railroad 
Administration provides funding, or if perhaps they need a 
Corps of Engineers' permit in order to replace a bridge.
    Mr. Young. See, then they are covered, because they are the 
Corps of Engineers. That means they are under the Federal 
jurisdiction. And Mr. Brooks's railroad can't build a bridge if 
you say no.
    Mr. John M. Fowler. Well, no, because the Corps of 
Engineers has to consider the impact of giving the permit on 
the historic property. But in the end, the Corps of Engineers 
can say, it is more important to give this permit to replace 
the bridge, and there is nobody--the Advisory Council, the 
State Historic Preservation Officer, the Secretary of Interior, 
or the National Park Service, no one can say no to that. That 
is a decision of the Corps of Engineers.
    Mr. Young. Now we go through this process and we have a 
building season in Alaska of 90 days. We are set off more than 
90 days. The Chairman brought this up. We are set off a year, 
and the train bridge collapses. Who has a responsibility? Is it 
Mr. Brooks, Alaska Railroad, Historical Society, Corps of 
Engineers? Who has the responsibility for the 150 people at the 
bottom of that canyon because the bridge wasn't fixed because 
it could possibly be historical? Who is responsible?
    Mr. John M. Fowler. I don't quite feel equipped to answer 
that question, sir.
    Mr. Young. Well, you mean you are not responsible, then, 
and you held it up.
    Mr. John M. Fowler. No, because----
    Mr. Young. Or SHPO held it up.
    Mr. John M. Fowler. First of all, I would suggest if one 
spends all their time debating whether or not the property is 
significant, that that often is the major reason that the 
process is protracted.
    Mr. Young. We don't disagree with the idea of it being 
historical. We disagree with the ability not to improve it so 
it is safe. That is all we are trying to do. My wife just 
walked in and told me to be quiet. So go right ahead.
    Mr. John M. Fowler. The process, sir, can work efficiently 
if people sit down and say, okay, this is a historic property, 
and now let's see what we can do with it. And the Federal 
agency that is funding or approving the project is in control 
of the time. If the Federal agency says we don't want to talk 
anymore about this, the SHPO is being obstructionist, they can 
terminate the process, they can get advisory comments from the 
Council, and then they can go forward and approve the project.
    Mr. Young. That is a dream world. If one person, one 
individual in SHPO says no, the railroad cannot fix that 
bridge. And that is what we are trying to address in my 
amendment. You know that. That is exactly what we are trying to 
do. It is what we did in the highway bill. We are going to try 
to apply that, because if we don't do it, then you have impeded 
the process of safety, ability to expand the railroad. Not 
destroying historical things. And that is not you personally. 
But just keep in mind, our goal is to make sure the railroad 
runs right, and on time. Yield back.
    Ms. Brown of Florida. Thank you. Mr. Fowler--and I guess 
anyone who wants to answer this question--over the next 10 
years, there is going to be a large increase in freight rail, 
shipment, passenger. How do you suggest we balance preserving 
our national heritage and preparing the future needs of this 
Nation?
    Mr. John M. Fowler. Well, Madam Chairman, we have already 
started to address that in case-by-case situations with regard 
to lines that require tunnel enlargement for clearances for 
modern freight equipment and so on. I would suggest that the 
Federal agencies that are responsible for funding and 
overseeing this, the Federal Rail Administration, the Federal 
Transit Administration, work with the Advisory council, the 
National Conference of State Historic Preservation Officers and 
the railroad industry and deal with this in a programmatic way, 
much the way we have dealt with the Interstate Highway System.
    We are concerned as much as anybody else is in having an 
efficient transportation system and we don't want preservation 
to be an impediment to that.
    Ms. Brown of Florida. You did not answer Mr. Young's 
question, or I didn't understand the answer to the question. He 
is indicating that what procedure is in place when one person 
is blocking--I mean to me, safety is number one.
    So the question is, what procedure is in place? If you have 
a facility that is structurally, physically, not safe and you 
are running trains on it, and then you have a process that is 
holding up the construction--you know, I know that on another 
Committee I am on, VA, we can completely fund a facility, and 
it takes the private sector 16 months to build it, and it would 
take us 5 years because of the different agencies.
    How can we have a one-stop process to expedite the time? I 
guess that is what we are asking here.
    Mr. John M. Fowler. All right. Well, first, in emergency 
situations there are exemptions from section 106 in order to 
meet an emergency situation, such as the imminent threat to 
safety for a bridge that is substandard. But as I was saying, 
under the section 106 process, the Federal agency--and there 
has to be a Federal agency involved--if it is a funding agency, 
such as FTA in the situations that I understand, they are in 
complete control of the process. They can say--the SHPO's role 
is purely advisory. The SHPO says it is historic, and the FTA 
says it is not. The FTA can move forward based on that.
    If the SHPO says, I don't want you to tear the bridge down 
and the FTA says, we don't agree with you, they can terminate 
this consultative process. They can get advisory comments from 
my agency that have to be delivered within 45 days of a 
request. And then it is up to the Secretary of Transportation 
to decide what to do with it. And the Secretary can say, rail 
safety is more important. It would be nice to save this bridge, 
but we are not going to do it. It. Thank you very much, ACHP, 
for your comments. We are moving forward.
    Ms. Brown of Florida. Mr. Little, you want to comment on 
that, the question?
    Mr. Little. I am sorry.
    Ms. Brown of Florida. Did you hear the question?
    Mr. Little. No, I did not, ma'am.
    Ms. Brown of Florida. Did you hear my question?
    Mr. Little. No, I did not.
    Ms. Brown of Florida. Okay. What I said was, over the next 
10 years it is going to be a real conflict between the 
passenger rail and freight rail as far as the increase in 
ridership. And how do we balance the two, preserving historic 
and moving the system forward?
    Mr. Little. The best solution to that in my opinion is the 
one that we have used in my State and around the country for 
several decades. And that is the administrative programmatic 
approach. Under the programmatic approach, you try to avoid 
project-by-project review and instead look at entire programs. 
Those entire programs may involve large geographic areas, like 
a corridor, or they may involve multiple projects that are 
highly repetitive and highly predictable in terms of what the 
nature of the project is and what the nature of the solution to 
the historic preservation problems are.
    What that programmatic approach does is to essentially 
allow the railroad agency and railroads in this case to self-
monitor and carry out the preservation planning processes 
itself. Now, they have got to do it according to decent 
standards. But the agency, the railroad agency does the work 
itself and only comes to the State Historic Preservation 
Officer or the Advisory Council and historic preservation for 
problems that cannot be resolved in accordance with an 
agreement.
    Those agreements--in my State we probably have right now 50 
such programmatic agreements with things from our housing 
agency to our transportation agency. They work. But the agency 
implementing them has to take the process seriously and has to 
own the preservation planning process. We don't want to be the 
preservation police. We don't have the time or the money to 
look over agencies' shoulders. And if we can get them to do it 
themselves, that is what we want.
    Ms. Brown of Florida. Ms. Fowler, what impact would the 
Shuster amendment have on the Rail-to-Trails program? It is a 
very popular program in my State of Florida.
    Ms. Wesley Fowler. I think the impact would be that because 
of the way railroads under Federal law are allowed to abandon 
corridors, they can move corridors through--they can put a 
system diagram map and say they plan to abandon it 2 years into 
it or what have you, or they can discontinue service on it and 
not provide any service and then abandon in a 30-day period, 
seeking what they call an exemption.
    And our way of slowing down that process enough so that 
public agencies have an opportunity to put together funding 
packages, build community support, turn to Congress or their 
states for TE money, whatever, it prevents the dismantling of 
those key features.
    We talk about a trestle as if it were just a historic 
preservation facility. It is also the way you get from one part 
of the corridor to another part of the corridor. The tunnel is 
how you get from one part of the corridor to the other part of 
the corridor. If those facilities fall into disrepair or are 
allowed to be dismantled, if that stone, for instance, on the 
Stone Arch Bridge was allowed to be sold off to private sector 
because the railroad owned it and so they had a good market for 
it, those features, you can't separate the facilities on the 
corridor from the corridor itself. They are a part of the 
corridor. So you need to keep them intact long enough for 
public agencies to make a decision as to whether they want to 
acquire that corridor or not.
    Ms. Brown of Florida. Is this a coincidence about the two 
Fowlers here today?
    Ms. Wesley Fowler. Well, we are not sure.
    Ms. Brown of Florida. Okay. I am going to have to check 
with the staff on this one.
    Mr. Brooks and Mr. Fowler, would you all be willing to sit 
down and discuss how we can solve this problem before this bill 
comes to the floor?
    Mr. John M. Fowler. On behalf of the ACHP, we would be 
delighted to, Madam Chairman.
    Ms. Brown of Florida. How about you, Mr. Brooks?
    Mr. Brooks. Yes, we are very interested in getting the 
problem solved, but we also feel like we have an immediate 
issue.
    Ms. Brown of Florida. Mr. Young. Did he leave? Mr. 
Oberstar.
    Mr. Oberstar. I didn't understand the last part of your 
response to Ms. Brown, Mr. Brooks. You said we would, but--
what?
    Mr. Brooks. We feel like we have an immediate issue. We do 
have a number of bridges that are out there in need of 
replacement. And although we have an agreement on timber 
bridges for the 106 process, we do not have anything in place 
for 4(f), and that is an impediment to our work.
    Mr. Oberstar. Well, whether you want to sit down and talk 
about a solution or not is up to you. But the Alaska Railroad 
can ask the keeper of the National Register to determine 
whether or not the railroad is, in fact, historic. And the 
railroad has not asked for this determination as far as I have 
been able to determine. So are you aware of that authority?
    Mr. Brooks. Yeah. We are aware that we can ask the keeper 
if the railroad is a historic entity. There is a process 
involved. The de facto position of our SHPO is that we are 
historic, and that is the way we have been treated. When we got 
to the example today of bridge 432.1, we had the opportunity to 
pursue that. Assuming the determination of adverse effect would 
have been upheld, we would have had to pursue section 4(f) 
anyway, so because we need to repair our bridge, we simply went 
directly to 4(f).
    Mr. Oberstar. Well, you are really not answering the 
question whether you want to talk further, so you have got an 
immediate problem; but your immediate problem is about to be 
resolved one way or another. I can't imagine that the Interior 
Department will reject the claim of no feasible prudent 
alternative, as your filing proposes, to replacing the bridge. 
And you will be able to go ahead with it. So it is up to you 
whether you want to sit down and talk about things and 
specifics.
    But let me--there are appeals. There are opportunities. 
And, Ms. Merritt, I would like you to expand upon that. There 
is a claim on the part of the Alaska Railroad, and implicitly 
by North Carolina, that there is no appeal from the decision of 
one person. But there is an appeal process throughout the whole 
historic preservation. Describe this for us.
    Ms. Merritt. To elaborate on what Mr. Fowler said, when the 
question is whether a resource is eligible for the National 
Register of Historic Places, there is an appeal to the keeper 
of the National Register in the National Park Service. When the 
question is whether the bridge should be replaced under section 
4(f), the final decision belongs to the Federal agency in the 
Transportation Department, Federal Transit Administration, or 
Federal Railroad Administration, whoever is providing the 
funding. And the fact that a resource is determined eligible 
for the National Register does not determine whether it can be 
replaced or altered.
    As Mr. Fowler said, that just requires consideration of 
alternatives but it doesn't prohibit replacement or alteration. 
And the programmatic agreement for replacing the 57 timber 
bridges on the Alaska Railroad is a perfect example of that, of 
how section 106, even when resources are determined to be 
historic, does allow for upgrades and needed improvements.
    Mr. Oberstar. Mr. Brooks, do you disagree with that?
    Mr. Brooks. No.
    Mr. Oberstar. Mr. Simmons?
    Mr. Simmons. Mr. Chairman, I do not agree that there is 
process. There is, in fact, process.
    My point is, as applied to a corridor as opposed to a 
distinct resource, such as a bridge or a facility or a 
structure, that that then can readily--in our case, it 
transcends two States. I think that because our corridor 
transcends six or seven States as it goes from Washington to 
across the South and Southeast, that we are on the cusp of a 
Federal issue. It is one that goes beyond the issue of whether 
the State Department or Transportation is in conversation and 
working hand in glove with the State SHPO office. I think we 
are, and we have demonstrated that.
    But when you look at the broader application of this, that 
is the challenge that I foresee and would appreciate some 
guidance and facility to make that happen so we can construct--
--
    Mr. Oberstar. I gather from your statement, not from Mr. 
Brooks, you are not opposed to--in principle--to having 
portions or specific items, aspects, facilities considered 
historic. You are concerned about the process you have to go 
through that takes so long to get there. Is that largely right?
    Mr. Simmons. That is very close, Mr. Chairman. I will make 
the distinction. I will use the example that we have between 
Raleigh and Petersburg or Raleigh and Richmond where we are 
doing work today. We are studying, analyzing a corridor that is 
about 1,000 feet wide. We have identified every structure in 
it, we have documented all of that. In addition to that, we 
have been asked to document and we have documented the 
corridor.
    But it is the corridor aspect that I find most challenging, 
and I think potentially could be an additional difficulty for 
us to ever build something.
    Mr. Oberstar. In the current law, and then-Chairman Young 
and I spent a great deal of time on this--and, particularly, I 
undertook to negotiate over a period of 6 or 7 months with all 
the various parties on project streamlining to simplify the 
process. And one of these was with respect to historic sites. 
And the language of the current law says quote, with respect to 
historic sites, the Secretary may make--Secretary of 
Transportation may make a finding of de minimis impact.
    I think this is very important for your purposes. Only if 
the Secretary has determined, in accordance with the 
consultation process required under the National Historic 
Preservation Act, that the transportation program or project 
will have no adverse effect on the historic site, or there will 
be no historic properties affected by the program or project.
    The finding of the Secretary has received written 
concurrence from the applicable State Historic Preservation 
Office or Tribal Historic Preservation Officer, et cetera, et 
cetera, participating, and the finding of the Secretary has 
been developed in consultation with parties consulting as part 
of the process. That is current law. Do you have a problem with 
that?
    Mr. Simmons. No, sir.
    Mr. Oberstar. Mr. Brooks?
    Mr. Brooks. Could you put the first part of that question 
together again?
    Mr. Oberstar. The first part of the question is, I read all 
the current language of the law. And the question is, do you 
have a problem with applying current law to your current 
project?
    Mr. Brooks. And I am sorry. Could you read the first couple 
of lines again, please?
    Mr. Oberstar. Oh, my goodness. It is a long section here. 
The Secretary may make a finding of de minimis impact if the 
Secretary has determined, in accordance with the consultation 
process required under the National Historic Preservation Act, 
that the transportation program or project will have no adverse 
on the historic site, or there will be no historic properties 
affected by the transportation program or project.
    Mr. Brooks. The problem we have with that is the effect of 
the Historic District gathers in features of the railroad, 
bridges, tunnels, buildings that wouldn't--that have no 
historic merit on their own. Their merit is because they are 
part of the Alaska Railroad Historic District. The de minimis 
finding, if we do something that impacts one of those 
contributing elements, then there is a finding of adverse 
effect, and it does trigger the 4(f) process.
    Mr. Brooks. That is the problem that we have.
    Mr. Oberstar. We are not going to overturn current law, I 
will tell you that. We are not going to go back and rewrite the 
Federal Highway Act. So you need to find something that speeds 
up; sit down and talk to each other, talk to us, talk to Mr. 
Fowler, talk to Ms. Merritt and find something that speeds up 
this process, and do it fast because we are going to bring this 
bill to the House floor next week.
    Mr. Brooks. We would be happy to do that.
    Mr. Young. Mr. Chairman.
    Mr. Oberstar. I yield to the gentleman.
    Mr. Young. I think we are on the right road here, and 
hopefully you and I will be able to sit down with the Chairman, 
Madam Chairman, because you brought up a good point about where 
we are going to be. And it appears to me that SHPOs caused us 
the most problems, and they are nicely recognized. It is a 
State person that has been the biggest challenge. And somehow 
we have to work around that so that we can upgrade the railroad 
wherever we possibly can for safety purposes, because it will 
expand if we are allowed to do that, because I think we would 
be doing a disservice.
    My amendment is very simple, as you know. All it does is 
adopt the highway safety bill is all it does, and the TEA-LU 
bill. It doesn't add anything else to it. And I want to make 
sure that we do protect the historical sites, but when it comes 
to a wooden bridge that is not safe, that goes back to--and has 
been decided that not by the railroad, by other people, and we 
have got to go through the Corps, and we have got to go through 
da, da, da, and I have one accident, I again ask the question, 
who is liable? Are we liable because we didn't doing do 
something? Is Mr. Fowler liable? Mr. Brooks? I can tell you 
there is going to be a lawyer making sure someone pays.
    Mr. Oberstar. We don't want to let it go to that.
    Mr. Young. We don't want it to go there, so I am going to 
make the suggestion that the three of us sit down and see if we 
can't arrive at a solution to make sure the railroads have the 
ability to keep growing and protect the historical sites. That 
is our main goal. And we can do that if we do it. And I have 
worked with the Chairman and the Chairman of the Full Committee 
and the Chairman of the Subcommittee for the last 6 years, and 
I think we can solve this problem.
    I yield back.
    Mr. Oberstar. I think that we are on the right course here, 
and I know that preservation groups are concerned about getting 
the Secretary of Transportation to be the final authority on 
this matter. But we do have existing law, and we do have 
language that was thrashed out at great length and with great 
effort and in great good will on both sides. So let's see if we 
can work out something between now and Monday morning. Monday 
noon is when we have to file whatever documents you have to 
file with the Rules Committee in order to bring the bill to the 
floor. So you talk, we will talk, and we will get this done.
    Madam Chair, thank you.
    Ms. Brown of Florida. Yes, sir. Let us add into this 
discussion Mr. Brooks, Mr. Fowler, Mr. Simmons and whoever else 
need to be in the room. My recommendation, go in the room, lock 
the door and don't come out. Failure is not an option, and we 
will all be happy if we can move forward and we can just work 
it out and not have to have a problem on the bill on Monday 
when it is time to file our bill.
    I hope I have the commitment of all the parties that we are 
going to work it out, and we want to make Mr. Young happy and 
Mr. Oberstar; then I will automatically be happy.
    I want to thank the witnesses for their testimony and the 
Members for their questions. Again, the Members of this 
Subcommittee may have additional questions for the witnesses, 
and we ask you to respond to these in writing. The hearing 
record will be held open for 14 days for Members wishing to 
make additional statements or to ask further questions.
    Unless there is further business, this Subcommittee is 
adjourned. Thank you, very much. Thank you.
    [Whereupon, at 4:50 p.m., the Subcommittee was adjourned.]

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