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Section 4(f) Overview Workshop. Fairbanks, AK July 2, 2008. My contact info:. Tim Haugh, Environmental Program Manager FHWA Alaska Division P.O. Box 21648 Juneau, AK 99802 Phone: 907-586-7430 Fax: 907-586-7420 email: tim.haugh@dot.gov. Agenda. Background Transportation Decisionmaking

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section 4 f overview workshop
Section 4(f) Overview Workshop

Fairbanks, AK

July 2, 2008

slide2

My contact info:

Tim Haugh, Environmental Program Manager

FHWA Alaska Division

P.O. Box 21648

Juneau, AK 99802

Phone: 907-586-7430

Fax: 907-586-7420

email: tim.haugh@dot.gov

agenda
Agenda
  • Background
    • Transportation Decisionmaking
    • Environmental Laws
  • Section 4(f)
    • Eligibility
    • Use
    • Alternatives Analysis
  • Open Discussion, Q & A
introductions
Introductions
  • Name
  • Employer
  • Job Description / Experience
  • Questions / Discussion Items
evolution of decisionmaking
Evolution of Decisionmaking

1966 DOT Act

1987 FHWA Regs.

1966 NHPA

1969 NEPA

2005 SAFETEA-LU

1978 CEQ Regs.

1956 FaHA

1991 ISTEA

1998 TEA-21

1950 1960 1970 1980 1990 2000 2010

environmental laws and eo s affecting our decisionmaking
Environmental Laws and EO’sAffecting our Decisionmaking

E0 13274

TEA-21

EO 13061

EO 13007

NAGPRA

SDWA

EO 13186

ADA

CBRA

EO 13112

STURRA

EO 12898

ISTEA

FPPA

CERCLA

EO 11990

CZMA

ANILCA

ESA

CWA

NHPA

ARPA

HBA

NEPA

HSBAA

MBTA

RHAA

CAA

AA

4(f)

GBA

FWCA

CRA

LWCFA

FAHA

1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000 2010

hierarchy
Hierarchy
  • Laws
  • Regulations
  • Other
    • Executive Orders
    • Policy
    • Guidance
hierarchy cont
Hierarchy (cont.)

From the preamble to 23 CFR 774 regarding comments on including the 12/13/05 Section 4(f) de minimis guidance in Part 774.5:

“…The joint FHWA/FTA guidance for determining de minimis impacts to section 4f resources remains in effect, but the Administration may review it and make clarifying revisions some time in the future.

The FHWA Section 4(f) Policy Paper, March 2, 2005, was written prior to enactment of the SAFETEA-LU amendment to the Section 4(f) statute, remains in effect except where it could be interpreted to conflict with this regulation, in which case the regulation takes precedence.”

national environmental policy act of 1969 nepa
National Environmental Policy Act of 1969 (NEPA)
  • Declare a NATIONAL POLICY which will encourage a productive and enjoyable harmony between man and his environment …
  • NEPA applies to all Federal undertakings
  • NEPA is a procedural statute
nepa decisionmaking framework
NEPA Decisionmaking Framework
  • Use a systematic and interdisciplinary approach
  • Environment given appropriate consideration with economic and technical considerations
  • Include in proposals, a detailed statement on:
    • Environmental impacts of the action
    • Adverse impacts which cannot be avoided
    • Alternatives to the proposed action
    • Consequences of taking the proposed action
  • Consult with Federal agencies
  • Involve the public
fhwa nepa regulations
FHWA NEPA Regulations

“Environmental Impact and Related Procedures”23 CFR Section 771

23 cfr 771 105 policy
23 CFR 771.105 - Policy
  • Environmental reviews be coordinated as a single process
  • Compliance with all applicable environmental regulations
  • Evaluation of alternative courses of action
  • Balance transportation need with environmental considerations
  • Public and agency involvement
  • Mitigation of impacts
nepa process options
NEPA Process Options

Early Project

Development Activities

Significant Impact ?

No

Unsure

Yes

Categorical Exclusion

Environmental

Assessment

EIS

Yes

Significant Impact ?

No

FONSI

ROD

national historic preservation act of 1966 nhpa
National Historic Preservation Act of 1966 (NHPA)
  • Does not mandate preservation, but seeks to resolve conflicts via consultation process among stakeholders
  • Applies to all Federal undertakings
  • Participants – Federal agencies, Advisory Council on Historic Preservation (ACHP), SHPO/THPO, other consulting parties
  • ACHP Regulations – 36 CFR 800
section 106 of nhpa
Section 106 of NHPA
  • Federal agencies must consider the effect of their undertakings prior to granting approval or funding
  • Must provide the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment
what are historic sites
What are Historic Sites?
  • Buildings, bridges, roadways, canals, railways & related facilities
  • Farms, landscapes, districts
  • Battlefields
  • Industrial sites
  • Traditional cultural properties
what makes a site historic
What Makes a Site Historic?
  • Must meet National Register eligibility criteria
      • 4 Eligibility Criteria
  • Must have integrity
      • 7 Aspects of Integrity
section 4 f of the 1966 dot act
Section 4(f) of the 1966 DOT Act
  • From a highway project in San Antonio, TX through Brackenridge Park
  • A law separate from NEPA, NHPA…
  • Applies ONLY to the actions of DOT agencies
  • Goal is total avoidance and preservation
  • Controversial and often challenged part of FHWA’s project development process
section 4 f the law
Section 4(f) - The Law:

The Secretary may approve a transportation program or project requiring the use of publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge, or land of a historic site of National, State, or local significance (as determined by the Federal, State, or local officials having jurisdiction)only if -

49 U.S.C. 303

only if
Only If -
  • there is no prudent and feasible alternative to using the land; and
  • the program or project includes all possible planning to minimize harm to the … Section 4(f) resource(s).
  • Or, the FHWA makes a finding that the project has a de minimis impact on the Section 4 (f) resource.

49 U.S.C. 303

slide23

The Section 4(f)

Process

4(f) property and use identified

Prepare 4(f) Evaluation

Consultation/coordination w/DOI, HUD, DOA, and agencies with jurisdiction and Section 106 for Historic Resources

FHWA Approves Draft 4(f) Evaluation for Circulation

Review Comments

Prepare Final 4(f)

Legal Sufficiency Review

FHWA Division Office Approves

Final 4(f) Evaluation

section 4 f processing options
Section 4(f)Processing Options
  • Individual Section 4(f) Evaluation
  • Programmatic Section 4(f) Evaluation
  • Finding of de minimis impact
procedural vs substantive
Procedural vs. Substantive
  • NEPA is procedural
  • Considers the process used to make the decision.
  • No specific outcome required. In theory, any alternative can be selected.
  • Section 4(f) is substantive
  • More than a process
  • Requires a certain outcome
what are section 4 f resources
What are Section 4(f) Resources?
  • Parks
  • Recreation Areas
  • Wildlife & Waterfowl Refuges

** (Must be publicly-owned)

  • Historic Sites

** (Public or private ownership)

“ Parks+ “

parks
Parks+
  • Publicly owned
  • Public park
  • Major purpose
  • Significant
wildlife and waterfowl refuges
Wildlife and Waterfowl Refuges
  • Major Purpose

conservation, restoration, or management of endangered species, their habitat, and other wildlife and waterfowl resources

  • Publicly owned
historic sites
Historic Sites
  • Land of National, State or Local Significance
    • public ownership not required
    • on or eligible for the National Register, or
    • locally significant
      • determined by FHWA when an Official provides adequate information to show a property is of local significance
  • 4(f) Policy Paper Question 3A
interstate exemption per safetea lu
Interstate Exemption per SAFETEA-LU
  • Interstate system is not to be considered to be a historic site subject to Section 4(f), with the exception of those individual elements of the Interstate system formally identified by FHWA on the basis of national or exceptional historic significance.
  • Examples – historic bridge or highly significant engineering feature
other eligibility issues
Other Eligibility Issues
  • Multiple use properties
  • Planned facilities
  • Joint development
  • School playgrounds
  • Trails and bikeways
  • Archaeological sites
  • Air rights
  • Golf courses
  • Entrance fees
  • Mitigation sites
  • TE projects
use of land
Use of Land
  • Fee simple
  • Permanent Easement
  • Temporary Easement
  • Constructive Use
  • De minimis Impact (Use)
slide35

FEE SIMPLE USE

Highway

R-O-W

Park

slide36

Permanent & Temporary Easements

Culvert

ROUTE 52

Highway ROW Line

AND Park Boundary

Easement

PARK

constructive use
Constructive Use
  • No actual incorporation of land
  • Proximity impacts substantially impair the activities, features, or attributes that qualify a resource for Section 4(f) protection
de minimis impact use per safetea lu
De Minimis Impact (Use)per SAFETEA-LU
  • de minimis:
    • Latin for “of minimum importance” or “trifling”

- Must pass the “red faced test”

de minimis impact use per safetea lu39
De Minimis Impact (Use)per SAFETEA-LU
  • May be applied to any project
  • De minimis impact findings are based on the degree of impact including any avoidance, minimization, and mitigation or enhancement measures included in the project
  • Have different criteria / impact thresholds for Parks+ and historic sites
de minimis for parks
De Minimis for Parks+

Section 4(f) requirements are satisfied if:

  • Project does not adversely affect the activities, features, and attributes that qualify the resource for protection under Section 4(f)
  • Written concurrence from officials with jurisdiction
  • Public has been afforded an opportunity to review and comment
de minimis for historic sites
De Minimis for Historic Sites

Section 4(f) requirements are satisfied if:

  • Section 106 consultation process results in a determination of:
    • No effect , or
    • no adverse effect
  • Written concurrence necessary from SHPO (must be made aware of FHWA’s intent)
  • Lead agency has considered views of any consulting parties
use of de minimis impact provision
Use of De Minimis Impact Provision
  • 41 States have made a de minimis impact finding
  • 70% of these involve historic resources
slide43

Other De Minimis Issues

  • Applied to each individual Section 4(f) resource
  • May be applied to temporary occupancy situations
  • May not be applied to Section 4(f) Constructive use situations
  • Lead agency makes de minimis finding
  • Only satisfies the Section 4(f) requirement
does a section 4 f use of land always equate to a section 106 adverse effect or

Questions?

Does a Section 4(f) use of land always equate to a Section 106 adverse effect?or

Does a Section 106 adverse effect determination always equate to a Section 4(f) use?

slide47

Consideration of Location Alternatives

to Avoid 4(f) Property

3

1

Rte 64

2

Rte 22

2b

2a

1 Mile

4

10 Miles

4(f) Property

slide48

Consideration of Design Shifts to Avoid a 4(f) Property

Existing: Two-Lane Highway

Proposed: Four-Lane Divided Highway

With 44’ Grassed Median

NR Boundary

Proposed

Roadway

Existing

Roadway

ABC Industries

feasible prudent
Feasible & Prudent
  • Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402 (1971)

The Supreme Court established a high standard for the “prudent and feasible” statutory language

slide50

IF AN ALTERNATIVE IS NOT FEASIBLE AND PRUDENT,

IT MUST CREATE

TRULY UNIQUE PROBLEMS

COMMUNITY

DISRUPTION OF

EXTR. MAGNITUDE

TRULY

UNIQUE

FACTORS

COST OF

EXTRAORDINARY

MAGNITUDE

ONE FACTOR OR THE SUM OF MANY FACTORS

clarification of feasible prudent standard
Clarification of Feasible & Prudent Standard
  • SAFETEA-LU required regulations to be issued to clarify the factors to be considered and the standards to be applied when determining whether avoidance alternatives are feasible & prudent
feasible prudent53
Feasible & Prudent
  • A feasible and prudent avoidance alternative avoids using Section 4(f) property and does not cause other severe problems of a magnitude that substantially outweighs the importance of protecting the Section 4(f) property. In assessing the importance of protecting the Section 4(f) property, it is appropriate to consider the relative value of the resource to the preservation purpose of the statute.

23 CFR 774.17

feasible prudent54
Feasible & Prudent
  • An alternative is not feasible if it cannot be built as a matter of sound engineering judgment.
  • An alternative is not prudent if…

(refer to listing of items in

23 CFR 774.117)

things to consider
Things to consider:
  • Nature and quality of Section 4(f) resources may be considered (not all are equal)
  • Effect of project on Section 4(f) resources may be considered (not all are equal)
  • Consider the net effect on Section 4(f) resources after factoring in mitigation
  • Do not rely solely on costs
slide56

Is the Avoidance Alternative Prudent?

4(f) property

Relative value of the property

P & N

Safety

Impacts

?

Cost

slide57

Questions?

What do you do if there are no feasible and prudent avoidance alternatives?

least harm
Least Harm
  • If there are no feasible and prudent avoidance alternatives, then FHWA must analyze alternatives to determine which has the least overall harm in light of the statute’s preservationist purpose.

23 CFR 774.3

slide59

Park

Park

Size of Take

slide60

Park

Park

Location of Take

slide61

Historic Site

Severity of Take

slide63

B

A

C

Least Harm

D

O

O

O

O

O

O

O

O

Park Boundary

least overall harm
Least Overall Harm

The least overall harm is determined by balancing the following factors:

  • Ability to mitigate adverse impacts to each 4(f) property
  • Relative severity of remaining harm to each 4(f) property after mitigation
  • Relative significance of each 4(f) property
  • Views of officials with jurisdiction
  • Degree to which alternative meets P&N
  • Magnitude of adverse impact to non-4(f) sites
  • Substantial differences in cost among alternatives

23 CFR 774.3(c)(1)

mitigation minimization of harm
Mitigation / Minimization of Harm:
  • Replacement land is not always required, but is commonly done.
  • Replacement, or enhancement, of functions or facilities
  • Monetary compensation
  • Section 106 MOA stipulations
  • …be open to creative or innovative ideas
mitigation minimization of harm66
Mitigation / Minimization of Harm
  • 23 CFR 771.105(d)
  • It is the policy of the Administration that measures necessary to mitigate adverse impacts be incorporated into the proposed action
mitigation minimization of harm67
Mitigation / Minimization of Harm
  • Measures necessary to mitigate adverse impacts are eligible for Federal funding when the Administration determines that:
    • The impacts result from the proposed action, and
    • The mitigation represents a reasonable public expenditure after considering the impacts of the action and the benefits of the proposed mitigation
mitigation minimization of harm68
Mitigation / Minimization of Harm
  • 23 CFR 771.109(b)
  • It shall be the responsibility of the applicant, in cooperation with the Administration to implement those measures stated as commitments in the environmental document
  • The FHWA will assure that this is accomplished as part of its program management responsibilities
useful resources
Useful Resources
  • FHWA website – fhwa.dot.gov
    • Environmental Review Toolkit
    • Environmental Guidebook
    • March 2005 Section 4(f) Policy Paper
  • FHWA re:NEPA website
  • MDSHA Interactive Section 4(f) training – www.section4f.com
slide70

My contact info:

Tim A. Haugh

Environmental Program Manager

FHWA Alaska Division

P.O. Box 21648

Juneau, AK 99802

Phone: 907-586-7430

Fax: 907-586-7420

email: tim.haugh@dot.gov