National Trust Submits Response….

Betsy Merritt, Deputy General Counsel for the National Trust for Historic Preservation, submitted the following public comment to the Federal Railroad Administration in response to the NEC Future Tier 1 Final Environmental Impact Statement

Merritt “has been responsible for the National Trust’s legal advocacy program for the past 25 years … having represented the National Trust in nearly 200 cases in state and federal courts, including two dozen transportation cases.”

March 1, 2017

U.S. DOT Federal Railroad Administration
One Bowling Green, Suite 429
New York, NY 10004
via Email:

Re: Northeast Corridor NEC Future Tier 1 Final Environmental Impact Statement

Dear Federal Railroad Administration and NEC Future Project Team:

On behalf of the National Trust for Historic Preservation, this letter serves as a comment on the Tier 1 Final Environmental Impact Statement (FEIS) for the Northeast Corridor NEC Future project.
While some areas of the proposed project would have a minimal adverse effect on historic resources, the portion of the project along the coast of Connecticut and Rhode Island would be devastating to historic communities under the preferred alternative, which proposes 79 miles of rail corridor on new alignment just within Connecticut–29 miles in the New Rochelle to Greens Farms Bypass, and 50 miles in the Old Saybrook to Kenyon Bypass, much of which would be elevated on aerial structures. Historic communities such as Old Lyme in Connecticut, and Charlestown in Rhode Island, would be especially hard hit. In these historic communities, the opposition to the preferred alternative—by local governments, by elected officials at all levels, and by the public at large—has been quite extraordinary.

As you know, the Connecticut Trust for Historic Preservation has submitted detailed comments on these harmful impacts, including a thorough discussion of the legal and analytical flaws of the Tier 1 FEIS. The National Trust strongly endorses the comments of the Connecticut Trust for Historic Preservation.

In addition, we wish to emphasize that, in our view, the proposed project fails to comply with Section 4(f) of the Department of Transportation Act. Section 4(f) prohibits the use of historic properties and park land for transportation projects unless there is no feasible and prudent alternative to doing so, and the project incorporates “all possible planning to minimize harm.” 49 U.S.C. § 303(c). As the FEIS points out, a large number of Section 4(f) resources are located within and immediately adjacent to the corridor. However, the information in the FEIS regarding cultural resources and historic properties does not effectively convey the nature and magnitude of the potential adverse impacts to those resources.

The FEIS assumes that Section 4(f) compliance will occur much later in the process, during the Tier 2 review. However, the FEIS acknowledges that the agency must ensure that opportunities to avoid and minimize harm to historic resources, as required by Section 4(f), “have not been precluded by decisions made at the Tier 1 stage.” FEIS at 7.16-13 (emphasis added); cf. 23 C.F.R. § 774.7(e)(1). We believe that compliance with Section 4(f) will indeed be precluded, unless this portion of the project is removed from the Tier 1 Record of Decision. It is simply not possible for the agency to make any meaningful determination that there is no feasible and prudent alternative to the use of historic resources protected by Section 4(f). See Corridor H Alternatives, Inc. v. Slater, 166 F.3d 368 (D.C. Cir. 1999).

In sum, we urge the Federal Railroad Administration to remove from its Tier 1 Record of Decision the portions of the project in Connecticut and Rhode Island that involve bypasses on new alignment and other draconian impacts on historic resources. Instead, the agency should conduct more detailed reviews to develop feasible and prudent alternatives that would avoid and minimize harm to these resources.

Thank you for considering the comments of the National Trust for Historic Preservation.

Elizabeth S. Merritt
Deputy General Counsel

cc: Laura Shick, Federal Preservation Officer, Federal Railroad Administration

Amishi Castelli, Environmental Protection Specialist,
Federal Railroad Administration

Chris Wilson, Charlene Vaughn, and Reid Nelson,
Advisory Council on Historic Preservation

Kristina Newman-Scott, Connecticut State Historic Preservation Officer

Daniel Mackay and Gregory Stroud,
Connecticut Trust for Historic Preservation

You can find the original here: