Congress considers easing protection for transportation projects.

Story from the magazine by Lawrence Hurley / Sept. 12, 2003

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A funeral mound at Ocmulgee Old Fields, outside Macon, Ga. (NPS photo)

Joyce A. Bear is angry that anyone would jeopardize the Ocmulgee Old Fields. The 16,000-acre site of wetlands, abundant wildlife, burial mounds, and other evidence of ancient Native American culture on the outskirts of Macon, Ga., is "our ancestral land, the cradle of the Muscogee Confederacy," says Bear, the cultural preservation officer for the Muscogee Nation.

For 10 years, Native American, preservation, and environmental groups have helped her stave off the state's plan to push a four-lane highway through land the Muscogee were forced to abandon in the early 1800s. Their strongest weapon has been a federal law obligating road projects to avoid historic and many natural places unless there's no "feasible and prudent" alternative.

Section 4(f) of the Department of Transportation Act of 1966 was written when resentment of rampant highway construction persuaded Congress to protect historic sites, public parks, wildlife refuges, and recreation areas from road and bridge projects that use federal funds. It stopped highways from ramming through Baltimore's Inner Harbor and the French Quarter in New Orleans, and according to National Trust lawyer Elizabeth Merritt, it is "the primary legal protection standing between Ocmulgee Old Fields and pavement." But now a bipartisan transportation bill introduced in Congress in May at the request of the Bush administration would substantially weaken the law.

Under Section 4(f), "you have to avoid a historic site," Merritt says. But provisions proposed by the Safe, Accountable, Flexible and Efficient Transportation Equity Act of 2003 (SAFETEA) direct the agencies to consider up to five factors when making a decision. They include the significance of the site being protected, the views of local officials, and the severity of the impact on the site.

"The effect of these factors would be to give transportation officials an incredible degree of discretion to use a variety of excuses for harming or destroying historic properties," explains Merritt. "It would be disastrous."

Under SAFETEA, disputes over historic resources would be resolved using only Section 106 of the National Historic Preservation Act. The law encourages negotiation between parties, but, says Andrea Ferster, a Washington, D.C., lawyer who specializes in preservation litigation, "there's nothing that requires them to avoid, preserve, or protect historic properties." The threat of litigation would be effectively emasculated.

The bill would also exempt the federal interstate highway system, including historic bridges listed on the National Register, from all historic preservation reviews—"the extra nail in the coffin," Merritt says.

Opponents of the proposed revisions contend that the current method for reviewing the impact of construction projects on historic resources is not the major holdup that the government thinks it is. Anne Canby, president of the Surface Transportation Policy Project, a Washington-based group, says Section 4(f) would work more smoothly if planners identified threatened sites earlier in the process and involved local preservation groups right from the beginning. "While there are ways to make it work better, we don't think the law needs to be changed," she says.

The difference the law can make is apparent in Ybor City, a Tampa neighborhood that grew around cigar manufacturers in the late 19th century. In the 1960s, before Congress passed the transportation act, Interstate 4 was built through the northern end of Ybor City, destroying houses and cigar factories in its path. When the state transportation agency proposed widening I-4 in the 1990s, community groups and officials hammered out an agreement, signed in 1996, that saved 64 houses. Federal and state transportation funds paid not only to move the structures a mile across town but also to rehabilitate and market them to potential owners.

"Without Section 4(f), [the state transportation department] wouldn't have had to look at how much damage they would have caused," says Jo-Anne M. Peck, president of Preservation Resource Inc. in Tampa. "Their approach would have been to tear the houses down."

Every six years, Congress reauthorizes federal transportation policies. The current law expires in October, but if Congress hasn't waded through pending legislation by then, it may extend the authorization another year and reconsider SAFETEA next session. The National Trust and its allies continue to lobby on Capitol Hill to save Section 4(f), which Canby calls "a law that has stood the test of time."

Meanwhile, the future of Ocmulgee Old Fields—and its 10,000 years of history—hangs in the balance. The site, a portion of which was designated the Ocmulgee National Monument in the 1930s, is listed among the National Trust's 11 Most Endangered Historic Places this year. "We have been fighting since 1992, and we will carry on," says Bear.

Lawrence Hurley is a legal affairs reporter for The Daily Record in Baltimore.

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