[Federal Register Volume 70, Number 75 (Wednesday, April 20, 2005)]
[Notices]
[Pages 20618-20630]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-7812]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[FHWA Docket No. FHWA-2002-13290]
Final Nationwide Programmatic Section 4(f) Evaluation and
Determination for Federal-Aid Transportation Projects That Have a Net
Benefit to a Section 4(f) Property
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The FHWA is issuing this approved final nationwide
programmatic Section 4(f) evaluation (programmatic evaluation) for use
in certain Federal (Federal-aid or Federal Lands Highway)
transportation improvement projects where the use of publicly owned
property from a Section 4(f) park, recreation area, or wildlife and
waterfowl refuge or property from a historic site results in a net
benefit to the Section 4(f) property. The application of this
programmatic evaluation is intended to promote environmental
stewardship by encouraging the development of measures that enhance
Section 4(f) properties and to streamline the Section 4(f) process by
reducing the time it takes to prepare, review and circulate a draft and
final individual Section 4(f) Evaluation (individual evaluation) that
documents compliance with Section 4(f) requirements. This programmatic
evaluation provides a procedural option for demonstrating compliance
with the statutory requirements of Section 4(f) and is an addition to
the existing nationwide programmatic evaluations, all of which remain
in effect. This programmatic evaluation can be applied to specific
project situations that fit the criteria contained in the Applicability
section. To fully realize the streamlining benefits of this
programmatic evaluation, the FHWA and the Applicant (defined later) are
encouraged to initiate coordination with the official(s) with
jurisdiction (defined later) over a Section 4(f) property as early as
possible and practicable to facilitate the assessment of benefits and
harm to a Section 4(f) property.
EFFECTIVE DATE: April 20, 2005.
FOR FURTHER INFORMATION CONTACT: Mr. Lamar S. Smith, Office of Project
Development and Environmental Review, HEPE, (202) 366-8994 and Ms.
Diane Mobley, Office of the Chief Counsel, HCC-30, (202) 366-1366. FHWA
office hours are from 7:45 a.m. to 4:15 p.m. e.t., Monday through
Friday, except Federal holidays. The offices are located at 400 Seventh
Street, SW., Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
Electronic Access
An electronic copy of this notice may be downloaded using a
computer, modem, and suitable communications software from the
Government Printing Office's Electronic Bulletin Board Service at (202)
512-1661. Internet users may reach the Office of the Federal Register's
home page at http://www.archives.gov and the Government Printing
Office's Web site at http://
[[Page 20619]]
www.access.gpo.gov. An electronic version of the programmatic
evaluation may be downloaded at the FHWA Web site: http://www.environment.fhwa.dot.gov/guidebook/gbwhatsnew.htm.
Contents of Preamble
Background on the Nationwide Section 4(f) Evaluation and
Determination.
Description of Action.
Why Issue a New Nationwide Section 4(f) Evaluation?
Actions Taken to Date.
Comments and Responses on the Draft Nationwide Section
4(f) Evaluation and Determination.
Examples.
Background on the Nationwide Section 4(f) Evaluation and Determination
The FTA initially anticipated participating in this proposed
programmatic evaluation as reflected in the draft Nationwide Section
4(f) Evaluation and Proposed Determination for Federal-Aid
Transportation Projects That Have a Net Benefit to a Section 4(f)
Property published at 67 FR 77551, on December 18, 2002. The FTA
currently utilizes no programmatic evaluation and relies on individual
evaluations to satisfy the requirements of Section 4(f) for transit
projects that use Section 4(f) properties. Upon further transit program
and policy review, the FTA has elected not to participate in this
programmatic evaluation and will continue to perform individual Section
4(f) evaluations in all cases.
Proposed federally funded highway projects that would use property
from significant publicly owned public parks, recreation areas, or
wildlife and waterfowl refuges or from significant historic sites are
subject to Section 4(f) of the U.S. Department of Transportation Act of
1966 (Public Law 89-670, 80 Stat. 931, October 15, 1966), a provision
now codified in title 49, United States Code, Section 303. Section 4(f)
prohibits such use unless the FHWA determines that: (1) There is no
feasible and prudent avoidance alternative; and (2) that the project
includes all possible planning to minimize harm to the Section 4(f)
property. These efforts are normally documented in an individual
evaluation or one of four existing nationwide programmatic evaluations.
For some FHWA projects, it may be possible to utilize one or more
programmatic evaluations that were developed for specific
circumstances.\1\
---------------------------------------------------------------------------
\1\ Final Nationwide Section 4(f) Evaluation and Approval for
Federally-Aided Highway Projects With Minor Involvements With Public
Parks, Recreational Lands, and Wildlife and Waterfowl Refuges,
Issued December 23, 1986, Published in Federal Register, August 19,
1987, and can be found at 52 FR 31111.
Final Nationwide Section 4(f) Evaluation and Approval for
Federally-Aided Highway Projects With Minor Involvements With
Historic Sites, Issued December 23, 1986, Published in Federal
Register, August 19, 1987, and can be found at 52 FR 31118.
Department of Transportation, Federal Highway Administration--
Programmatic Section 4(f) Evaluation and Approval for FHWA Projects
that Necessitate the Use of Historic Bridges, Issued July 5, 1983,
Published in Federal Register, August 22, 1983, and can be found at
48 FR 38135.
Negative Declaration/Section 4(f) Statement for Independent
Bikeway or Walkway Construction Projects, FHWA Memorandum, May 23,
1977, and can be found at http.//www.environment.fhwa.dot.gov/projdev/4fbikeways.htm.
---------------------------------------------------------------------------
Court decisions, particularly in the 1970s, resulted in strict
interpretations of Section 4(f) requirements. Many of these early
decisions resulted from large projects that impacted Section 4(f)
properties during the peak of Interstate highway construction and
expansion. In recent years, however, some courts have provided a more
flexible interpretation, responding to the reduction in the severity of
impacts and a transportation program that is currently focused more on
system preservation and modernization than on expansion.
Programmatic evaluations reduce the processing time and effort
necessary to document the analysis and illustrate that the Section 4(f)
requirements have been met. Each of the programmatic evaluations
contains specific and limiting applicability criteria and findings. For
projects that do not meet the specified applicability criteria, the
FHWA must prepare and circulate for comment, a draft individual
evaluation, which is subject to internal legal sufficiency review prior
to approval and circulation of a final individual Section 4(f)
evaluation.
Description of Action
This programmatic evaluation facilitates compliance with Section
4(f) requirements for those situations in which there is agreement
among the FHWA, the Applicant and the official(s) with jurisdiction
over the Section 4(f) property that the transportation use of Section
4(f) property, the measures to minimize harm and the mitigation
incorporated into the project will result in a net benefit to the
Section 4(f) property. If an agreement on net benefit cannot be reached
among the FHWA, the Applicant and the official(s) with jurisdiction
over the Section 4(f) property, then this programmatic evaluation
cannot be used. This programmatic evaluation may be used, when
applicable, for a project of any class of action as defined in 23 CFR
771.115 of the FHWA Environmental Impact and Related Procedures
(National Environmental Policy Act (NEPA) regulations).
Why Issue a New Nationwide Programmatic Section 4(f) Evaluation?
Individual evaluations are approved after extensive internal review
and interagency coordination. The internal process consists of a review
of both a draft and final evaluation by the FHWA Division Office and,
in some cases, the FHWA Headquarters Office. In addition, each final
individual evaluation undergoes a separate review by the FHWA Office of
Chief Counsel to ensure legal sufficiency. Interagency coordination is
undertaken on all individual evaluations with the official(s) with
jurisdiction over the Section 4(f) property and with the DOI. A draft
individual Section 4(f) evaluation is provided for coordination and
comment for a minimum of 45 days and a final individual Section 4(f)
evaluation is prepared to support the FHWA Section 4(f) determination.
In addition, the U.S. Departments of Agriculture (USDA) and Housing and
Urban Development (HUD) are consulted on those projects involving a
Section 4(f) property for which they have program responsibilities.
The process associated with individual evaluation documentation,
review and consultation is time consuming. The process is appropriate
for projects that have the potential to substantially impair, through
use, the activities, features or attributes that qualify the property
for Section 4(f) protection. For other projects, where the use of
Section 4(f) property is minor and/or does not result in a substantial
impairment of specific qualities that make a property eligible for
Section 4(f) protection, the project is still subject to the same
thorough and time-consuming process of evaluation, unless it qualifies
for a simplified review under one of the existing programmatic
evaluations. This programmatic evaluation is intended to address those
projects where there is agreement among the FHWA, the Applicant and the
official(s) with jurisdiction that, (1) a use of property does not
result in a substantial impairment; (2) the project includes all
possible planning to minimize harm, including mitigation; and (3) that
the cumulative result is an overall improvement and enhancement of the
Section 4(f) property.
An understanding of the intent of this programmatic evaluation,
applicability requirements and the meaning of net benefit is a
prerequisite to agreement.
[[Page 20620]]
Where conflict arises in reaching agreement with the official(s) with
jurisdiction, the FHWA should assess the nature of the disagreement to
determine whether it is procedural or substantive (related to the
applicability criteria of the actual project action) before deciding
not to use this programmatic evaluation. If substantive disagreement
persists, then this programmatic evaluation cannot be used.
As established in this programmatic evaluation, the Administration
will review the specific facts of a project, compare them to the
applicability requirements of the programmatic evaluation and determine
if it is applicable. When applicable, appropriate supporting
documentation will be placed in the project file and/or referenced in
the appropriate environmental document. Since this programmatic
evaluation was reviewed and determined to be legally sufficient
according to the requirements of 23 CFR 771.135(k), the utilization of
this programmatic evaluation on specific projects will not require
legal sufficiency review under 23 CFR 771.135(k). Similarly,
interagency coordination is streamlined, as described in this
programmatic evaluation, by consulting only with the official(s) with
jurisdiction, and not with DOI, USDA, or HUD, except when those
agencies have an official responsibility related to the property or
where conversion of the 4(f) property to highway use is encumbered such
that, specific subsequent agency action will be required (e.g., lands
acquired with Land and Water Conservation Fund Act (LWCFA) assistance,
16 U.S.C. 460l(8)(f)(3)). It is estimated that these streamlining steps
will reduce processing and approval time for certain projects by 3 to 6
months. Of equal importance is the extent of internal review and
interagency coordination, which will be commensurate with the severity
of impacts and the potential for enhancement of the Section 4(f)
property.
Actions Taken to Date
The draft Nationwide Section 4(f) Evaluation and Proposed
Determination for Federal-Aid Transportation Projects That Have a Net
Benefit to a Section 4(f) Property was published on December 18, 2002,
at 67 FR 77551, requesting public and agency comment (FHWA Docket No.
FHWA-2002-13290). The proposed programmatic evaluation was provided
specifically to the DOI, the USDA, HUD and the Advisory Council on
Historic Preservation (ACHP).
After careful analysis of all comments received, the FHWA has
decided to finalize and approve this programmatic evaluation. Minor
changes have been made in this final programmatic evaluation to add
clarity and incorporate suggested improvements from insightful
comments. This decision is based upon the belief that the programmatic
evaluation will assure full compliance with the statute while enhancing
Section 4(f) properties and reducing duplicative administrative
processes for eligible projects. The decision is consistent with
congressional streamlining initiatives.
Comments and Responses on the Draft Nationwide Programmatic Section
4(f) Evaluation
The following discussion is a summary of comments received on the
draft programmatic evaluation. Responses are provided on how the FHWA
considered and addressed the concerns and/or issues raised.
Comments were received from 18 entities, including Federal
agencies, two national transportation organizations, one national
environmental organization, eight State transportation agencies, one
transit agency, two State resource agencies, and two private consulting
firms. Commenters included the Department of the Interior (DOI), and
the National Park Service (NPS), the American Highway Users Alliance
(AHUA), the American Association of State Highway and Transportation
Officials (AASHTO), the Sierra Club, the State of California Department
of Transportation (CALTRANS), the Maryland State Highway Administration
(MDSHA), the Pennsylvania Department of Transportation (PennDOT), the
New York State Department of Transportation (NYSDOT), the Missouri
Department of Transportation (MODOT), the Texas Department of
Transportation (TXDOT), the Wisconsin Department of Transportation
(WIDOT), the Washington State Department of Transportation (WSDOT), the
Central Puget Sound Regional Transit Authority (Sound Transit), the
State of Alabama Historical Commission (AHC), the Wyoming Game and Fish
Department (WGF) through its Office of Federal Land Policy,
Transportation Environmental Management Inc. (TEM) and the HR Green
Company (HR Green). In addition, the FTA provided comments and
recommendations for consideration prior to its decision not to be a
participant in the programmatic evaluation.
Many comments were general in nature and are summarized and
addressed collectively under the following general comment headings:
General Comments, Net Benefit, Official(s) with Jurisdiction, and
Section 106 Integration. Many comments included recommendations related
to a specific section of the programmatic evaluation which are
addressed in the section-by-section analysis.
A number of the specific comments received, focused on the overall
reform of Section 4(f) and suggested that this programmatic evaluation
does not do enough to reform and streamline existing Section 4(f)
requirements. All comments and recommendations have been read and
considered by the FHWA. These concerns are beyond the scope of this
effort and have not been addressed in this document.
General Comments
Comments received demonstrated a need for additional definition of
terms used in the final programmatic evaluation. Definitions were added
for: ``Administration'', ``Applicant'', ``net-benefit'' and ``officials
with jurisdiction.''
``Administration'' refers to the Federal Highway Administration,
FHWA Division Administrator or Division Engineer.
``Applicant'' refers to the State Highway Agency or State
Department of Transportation, or local governmental agency acting
through the State Highway Agency or State Department of Transportation.
A ``net benefit'' is achieved when the transportation use, the
measures to minimize harm and the mitigation incorporated into the
project results in an overall enhancement of the Section 4(f) property
when compared to both the future do-nothing or avoidance alternatives
and the present condition of the Section 4(f) property taking into
consideration the activities, features and attributes that qualify the
property for Section 4(f) protection. A project does not achieve a
``net benefit'' if it will result in a substantial diminishment of
specific functions or values that made the property eligible for
Section 4(f) protection.
``Official(s) with jurisdiction'' over Section 4(f) property
(typically) include: for a park, the Federal, State or local park
authorities or agencies that own and/or manage the park; for a refuge,
the Federal, State or local wildlife or waterfowl refuge owners and
managers; and for historic sites, the State Historic Preservation
Officer (SHPO) or Tribal Historic Preservation Officer (THPO),
whichever has jurisdiction under Section 106 of the National Historic
Preservation Act (16 U.S.C. 470f).
[[Page 20621]]
Many commenters expressed overall support for the programmatic
evaluation. They generally recognized and noted the potential benefits
of the programmatic evaluation in streamlining the procedural
requirements of Section 4(f), such as reducing paperwork and internal
review, while at the same time, encouraging enhancement of Section 4(f)
properties and promoting environmental stewardship.
The guiding principle regarding the use of the programmatic
evaluation is that there must be a ``net benefit'' to the Section 4(f)
property. The ability of the FHWA, the Applicant and the official(s)
with jurisdiction to reach agreement with respect to the impacts,
measures to minimize harm, mitigation and that a net benefit will
result is inherent in the decision of whether or not the programmatic
evaluation is applicable. ``Negotiations'' in this regard, should be no
more complicated or require skills other than those required for normal
project development and Section 4(f) consultations related to impacts,
measures to minimize harm and mitigation.
A situation where the necessary agreement or determination of
applicability is substantially difficult to achieve or make may be an
indication that an individual Section 4(f) evaluation is appropriate in
that case. On the other hand, this situation may be an indication that
one or more of the participants lack understanding of the intent of the
programmatic evaluation or the individual applicability requirements.
As stated above, an understanding of the intent of the applicability
and net benefit requirements is a prerequisite to agreement. Where
conflict arises in coordinating agreement with the officials with
jurisdiction, the FHWA should assess the nature of the disagreement to
see if it is procedural or substantive before deciding not to use this
programmatic evaluation.
The FHWA is committed to providing additional guidance, if needed,
on a case-by-case basis to ensure that misunderstanding about the
intent of the programmatic evaluation is not an impediment to its use.
Although only a few comments received can be characterized as
negative or in general opposition to this programmatic evaluation, many
commenters requested clarification and/or refinement of the language
used.
The Sierra Club generally objected to the programmatic evaluation
because in its view, it contradicts judicial interpretations of Section
4(f), derails the regulatory safeguards and circumvents the 4(f)
mandate that special effort be taken to preserve the natural beauty of
the countryside, public park and recreation lands, wildlife and
waterfowl refuges, and historic sites. The Sierra Club also suggested
that FHWA has provided no evidence that the new programmatic evaluation
will result in any tangible benefits to areas currently protected under
Section 4(f) and the streamlining approach may severely reduce the
number of protected natural areas and historic sites.
This programmatic evaluation is not a waiver or relaxation of any
of the Section 4(f) standards or judicial interpretations of the
legislative requirements. All existing Section 4(f) legislative
provisions remain intact. In addition, the use of the programmatic
evaluation will allow an increase in environmental stewardship
opportunities resulting in greater protection and enhancement of
Section 4(f) protected properties.
The requirement for a documented agreement of the resulting net
benefit to a Section 4(f) property will safeguard the preservation
provisions of Section 4(f) law by ensuring that there will be an
enhancement of the functions and values that originally qualified the
property for Section 4(f) protection. There is no less protection
afforded by this programmatic evaluation than with an individual
evaluation and its application will allow a more efficient process of
the regulatory requirements.
The DOI was neutral regarding the advantages of the programmatic
evaluation and recommended that FHWA expand on and clarify what ``net
benefits'' to a Section 4(f) property means, especially with regard to
resources under its jurisdiction. The DOI also noted that that without
further clarification the programmatic may not satisfy the statutory
mandate to consult with DOI on Section 4(f) issues. In response to this
and other similar comments, we have clarified the definition of ``net
benefit'' in the final programmatic.
The PennDOT commented that the programmatic would provide some time
savings in processes but that it would be limited. The NYSDOT and the
TEM offered similar comments regarding limited benefit, suggesting that
the procedure for utilizing a programmatic evaluation is the same as
that required for an individual evaluation.
The intent of this programmatic evaluation is to address
administrative burden when it is in the interest of all parties
involved to take an action where a use of Section 4(f) property will
result in an enhancement of that property. There may be a limited
history of experience with this programmatic evaluation; however, there
are many examples of ``missed opportunities'' to benefit or enhance an
existing property where a transportation use was imminent.
This programmatic evaluation constitutes an approved evaluation for
which the FHWA need only to demonstrate compliance with the criteria
contained in the programmatic evaluation. The independent review by the
DOI and the USDA or HUD official(s) of the draft and final individual
Section 4(f) evaluations and the legal sufficiency review by the FHWA
necessary for an individual evaluation are not required for this or
other programmatic evaluations. In many instances the time necessary to
conduct these regulatory internal reviews for individual Section 4(f)
evaluations are not apparent to the parties not directly involved in
the evaluation process. Procedurally, the time savings may be limited
to 3 to 6 months in normal project development; however, the overall
benefit is enough to encourage its use and will result in efforts that
enhance Section 4(f) properties while avoiding some procedural steps.
The Sierra Club commented that the proposed changes do not
``streamline'' the Section 4(f) procedural requirements. As an example,
the Sierra Club noted that the programmatic evaluation cannot be
utilized if a feasible and prudent alternative exists and when a
project has no prudent and feasible alternative, the agency with
jurisdiction must agree to mitigation measures to ensure the proposed
action results in a net benefit. The Sierra Club further opined that
under this scenario, the programmatic evaluation expands FHWA's
discretion and the review process, without full consideration of
benefits or losses to Section 4(f) areas.
As stated above, the programmatic evaluation does not waive any of
the existing Section 4(f) requirements including the determination that
there are no feasible and prudent avoidance alternatives to the Section
4(f) use of the property, and that the project includes all possible
measures to minimize harm to the Section 4(f) property. The savings
that are being sought through use of the programmatic evaluation come
from eliminating internal reviews within the FHWA and the case-by-case
coordination with the DOI and other Federal agencies currently required
for individual evaluations. Coordination, consultation and agreement
with the officials with jurisdiction are essential components of
compliance.
[[Page 20622]]
There is an important distinction to be made in understanding the
programmatic evaluation and how the agreement of net benefit is
reached, documented, and approved by the Administration. Comments
received from the Sierra Club and others appear to have interpreted the
FHWA as the ``official with jurisdiction.'' This is not the case. For
clarification, the definition of ``official(s) with jurisdiction'' was
added to the final programmatic evaluation. The Sierra Club's concerns
regarding the expansion of agency discretion are unfounded, given that
the FHWA must reach an agreement with the official(s) with jurisdiction
over the Section 4(f) property in order for the programmatic evaluation
to apply. If anything, the role of the officials with jurisdiction is
enhanced due to their required participation and agreement on achieving
a net benefit.
The MDSHA and the AHC commented that the official(s) with
jurisdiction over Section 4(f) property may be the SHPO or THPO and
recommended changes to Applicability, Item Number 5 to denote that
official(s) with jurisdiction may include the SHPO or THPO.
The definition of ``officials with jurisdiction'' has been
clarified as to the role of the SHPO or THPO as the official in the
case of historic properties. As previously noted, there may be
instances where a Section 4(f) property has more than one official with
jurisdiction.
The Sierra Club expressed concern that without a coherent set of
criteria to measure the impact of the project on the Section 4(f) area
itself, the proposed changes alter the FHWA's role in parkland and
historic site preservation by placing undue weight on external factors.
The role of the FHWA throughout the history of Section 4(f) has
been to protect and preserve specific defined properties. That role or
responsibility does not change with this programmatic evaluation;
indeed, protection of Section 4(f) properties is enhanced, by providing
an incentive to improve the property and a less cumbersome mechanism
when agreement on net benefit can be reached.
The FHWA retains the responsibility for determining the
applicability of Section 4(f) and of this programmatic evaluation,
which is dependent on agreement of net benefit. The FHWA will give
deference to the official(s) with jurisdiction to assist in determining
whether the project will ``substantially diminish'' the function or
values for which Section 4(f) was found to be applicable to the
property, and all parties involved must reach agreement as to whether a
proposed project will result in a ``net benefit'' to the property. If
agreement is not reached, this programmatic evaluation will not apply.
The programmatic evaluation also does not include impact criteria
as part of the applicability standards. This was done intentionally to
allow the official(s) with jurisdiction, the FHWA and the Applicant
flexibility in determining the measures appropriate to each individual
property necessary to generate a net benefit. Deference is given to
officials with jurisdiction, who have special expertise in the
property, to determine positive outcomes where there will be a use of
the property by a transportation project.
Through the review of all the comments, it was noted that some
questions or confusion might be attributable to the inconsistent use of
the terms Section 4(f) ``land'', ``property'' and ``resource''
throughout Section 4(f) regulations, guidance, documents and even the
statute itself. For this final programmatic evaluation, the term
``property'' has been used as consistently as possible, when not quoted
from or directly related to the language of an existing document.
Net Benefit
Several commenters asked for further clarification on what
constitutes a ``net benefit'' and who makes that determination.
The DOI suggested that the term ``net benefits'' is subjective and
could potentially lead to counterproductive proposals. DOI recommended
that the definition of ``net benefit'' to Section 4(f) property be
expanded and clarified.
Both the ACH and the MDSHA questioned how and by whom the
determination of ``net benefit'' would be made. Several commenters also
recommended that criteria be developed to ensure that people with
knowledge about the property have key roles in the determination of net
benefit.
There is a wide range of what will constitute a net benefit, which
will vary depending on the property and the project situation. In other
words, net benefit determination is property and project specific,
rather than generally subjective, and the development of criteria would
serve to restrict the ability to develop mutually agreeable net
benefits. For this reason the FHWA, the Applicant and the official(s)
with jurisdiction must work collaboratively to define and agree upon
what is reasonable and required to achieve a net benefit to a
particular Section 4(f) property, on a case-by-case basis. Each of the
participants plays an important role in this joint determination to
ensure that individual resource experts will be involved. Net benefit
is a joint decision, but it is only one of the prerequisites to
application of this programmatic evaluation. Consistent with the
responsibilities and authorities provided by Section 4(f) itself, the
FHWA will determine whether the proposed action satisfies the
applicability criteria for the use of this programmatic evaluation.
The AASHTO recognized one major difference in this programmatic
evaluation compared to the existing programmatic evaluations related to
historic properties considered under the National Historic Preservation
Act. In some cases, this programmatic evaluation could apply where a
Section 106 ``adverse effect'' finding has been made. The AASHTO,
however, expressed some concern that it would apply only if the project
had a net benefit on each individual historic property affected by the
project and recommended that the programmatic evaluation allow the net
``benefit'' finding to be made for the project as whole rather than
each individual property affected by a project. Similarly the NYSDOT
recommended revising the net benefit finding to apply to the project as
a whole, as a change more likely to promote environmental stewardship.
As noted earlier, this programmatic evaluation does not allow for
the waiver or relaxation of existing Section 4(f) standards or the
judicial interpretation of the legislative requirements. As such, each
Section 4(f) protected property must continue to be considered
individually as is currently required for any project or Section 4(f)
evaluation. Generally speaking, impacts and benefits to individual
Section 4(f) properties must be considered when applying the
Applicability criteria. An individual Section 4(f) property, such as an
historic district or park complex, might have multiple components. The
net benefit must be achieved for an individual Section 4(f) property
and for the functions and values that qualified that property for
Section 4(f) protection. Although a historic district may experience a
net benefit and be appropriately covered by this programmatic
evaluation, each property within the historic district that is
individually eligible for the National Register and is used by the
project must be considered separately under this programmatic
evaluation, if it applies, or in an individual Section 4(f) evaluation.
There can be impacts to the functions and values of the Section
4(f) property,
[[Page 20623]]
but these impacts cannot reach a level of ``substantial diminishment''
as determined by the FHWA. This determination will be made in
consultation with the official(s) with jurisdiction. For instance,
there may be general agreement among the FHWA, the Applicant and the
official(s) with jurisdiction that an overall enhancement to a Section
4(f) property is achievable. However, if the official with jurisdiction
believes that the functions and values that made the property eligible
for Section 4(f) protection will be substantially diminished upon
completion of the project, then the FHWA must find that the
programmatic evaluation is not applicable and that the protected
property requires the preparation of an individual Section 4(f)
evaluation.
The AASHTO recommended that the net benefit finding take into
account the likely future condition of the historic property if the
transportation project is not implemented, e.g., the potential for
demolition of the historic property by a private landowner.
The revised definition of net benefit included in the final
programmatic evaluation addresses this comment, in part. This
determination relies on a comparison of Section 4(f) functions and
values of the property without the transportation project and use to
determine net benefit.
The WIDOT commented that agreements on what constitutes ``net
benefit'' could be difficult to reach among the stakeholders involved.
The WIDOT recognized the potential difficulties that may occur when
working out the details sufficiently enough that all officials with
jurisdiction are satisfied that a net benefit will result. Because the
range of what constitutes a net benefit will vary from property to
property, by the official(s) with jurisdiction, and by the policies of
both the FHWA and the Applicant, creative measures used to achieve net
benefits on a project level should be developed and shared with the
larger environmental and transportation community in the form of ``Best
Practices.'' The flexibility inherent within the language of the
programmatic evaluation provides official(s) with jurisdiction an
opportunity and incentive to participate in efforts that maintain and
achieve benefits to Section 4(f) properties under their protection. The
Applicant and the FHWA are encouraged to communicate the beneficial
qualities of the programmatic evaluation with the official(s) with
jurisdiction in order to maximize its potential benefit to the Section
4(f) property.
Several commenters noted that the use of the term ``net benefit''
is inconsistent throughout the programmatic evaluation. It was unclear
whether there merely needs to be a net benefit, or does the project
have to preserve, rehabilitate, enhance, and have a net benefit. It was
further noted that in some situations, it would be difficult to argue
that the project does all four even though it may have an overall net
benefit.
From these comments and others, the FHWA recognizes the need to
clarify the term ``net benefit.'' Therefore, as noted above, the
definition of net benefit has been modified and simplified for
consistency in the final programmatic evaluation. This definition
clarifies that the resulting Section 4(f) functions and values of the
property are ``better,'' overall, than if the project did not use the
Section 4(f) property. The ``net benefit'' determination may be based
on a number of approaches to mitigate and minimize harm as long as
there is an overall enhancement or betterment from the future do-
nothing or avoidance condition.
As previously discussed, further instruction has been provided in
this programmatic evaluation on how the net benefit is determined and
by whom it is determined.
The NPS expressed concern with the definition of ``net benefit''
and objected to the inclusion of the ``substantial diminishment''
requirement without providing standards for measuring what is or is not
substantial.
The subjectivity of individual values and functions of a
significant Section 4(f) property demonstrate the variability of
impacts, mitigation, and net benefits, thus, providing guidance or
strict criteria on this determination may be viewed as overly
prescriptive. There is similar subjectivity and context in determining
``substantial diminishment.'' For these reasons, it is important to
consider the insight of the official(s) with jurisdiction when it comes
to deciding ``net benefit'' and/or ``substantial diminishment'' and the
officials with jurisdiction are in the best position to assist in these
determinations. Therefore, some deference should be given to the
officials with jurisdiction when determining if the project will
``substantially diminish'' the activities, features or attributes that
qualify the property for Section 4(f) protection. And this
determination is essential to deciding if there is a ``net benefit.''
If agreement on net benefit cannot be reached, this programmatic
evaluation will not apply to the property.
Officials With Jurisdiction
Addressing park, recreational, wildlife and waterfowl resources and
cultural, historic, and tribal properties within a single nationwide
programmatic evaluation has created some confusion when discussing
coordination with appropriate individuals or official(s) with
jurisdiction. Several comments were received that reflect a general
concern about the definition and intended role of the official(s) with
jurisdiction.
For example, the AHC asked that the programmatic evaluation clarify
who has official jurisdiction over Section 4(f) property and whether it
must take the SHPO's advice into consideration.
A substantial effort has been made to clarify language in the final
programmatic evaluation. Consistent with existing Section 4(f)
regulations and guidance, whichever of the SHPO and/or THPO has
responsibility under the Section 106 regulations is considered the
official with jurisdiction over an historic property. The FHWA must
seek and consider the opinion of the SHPO when determining effect under
the Section 106 regulations and would likewise, under Section 4(f),
seek the opinion of the SHPO as an official with jurisdiction when
determining whether a net benefit will result from the Section 4(f) use
of an historic site. In an example of an historic park owned by a
municipality that was purchased with funding from the Land and Water
Conservation Funds Act, the officials with jurisdiction would be the
municipal parks department and the SHPO. All officials with
jurisdiction must agree with a net benefit determination to a Section
4(f) property for this programmatic evaluation to apply. Coordination
with the NPS would also be required in this case, relative to its
responsibilities under the LWCFA, to assist in determining appropriate
and acceptable mitigation for the project's Section 4(f) use.
Section 106 Integration
Several commenters expressed a desire to improve the integration of
Section 4(f) requirements with those of the Section 106 process. The
NYSDOT commented that the programmatic evaluation would do little or
nothing to streamline the Section 4(f) process with respect to an
historic property. The TEM recommended that the programmatic evaluation
``adopt'' the conclusion of the Section 106 process such that, if a
project has been found to have no effect, no adverse effect, or results
in a MOU that addresses adverse effects, it should
[[Page 20624]]
be exempt from Section 4(f) requirements on that basis.
The current laws and regulations continue to apply. The FHWA has,
to the extent consistent with both laws, combined the common elements
of the two processes for this programmatic evaluation. Much of the
coordination required, the assessment of impacts, and mitigation is
basically the same whether intended to comply with NEPA, Section 106 or
Section 4(f). An integrated approach that satisfies multiple
requirements is consistent with existing FHWA policy to use the NEPA
process as the ``umbrella'' under which all environmental and related
laws and regulations are addressed. It is within the unique
requirements of Section 4(f) that this programmatic evaluation will
provide relief in the preparation of a single evaluation rather than a
draft and a final, the elimination of certain internal FHWA reviews,
and the elimination of project-by-project review by the DOI and the
USDA, and the HUD, all of which are now required for an individual
Section 4(f) evaluation.
Section-by-Section Analysis
Revisions were made to several sections of the programmatic
evaluation based upon either suggestions or comments received. The
substantive changes not discussed above are considered in this Section-
by-Section Analysis.
Preamble
In response to comments, the Preamble has been revised to improve
its consistency with the main body of the programmatic evaluation and
to respond to the comments received.
Examples
Several comments were received on the examples provided in the
draft to illustrate application and implementation of the programmatic
evaluation. These examples have been rewritten to provide further
clarity on the use of the programmatic evaluation.
The TXDOT commented on the example of a renovated historic railroad
station with the opinion that such renovation, if completed in
compliance with the Secretary of Interior's Standards and Guidelines,
should result in a ``no adverse effect'' determination, and thus, no
4(f) analysis would be required.
In specific instances, where the purpose of a project was to
improve an existing transportation facility, the observation of the
TXDOT would be correct (as provided in 23 CFR 771.135(f)). However, for
situations not covered by 23 CFR 771.135(f), the FHWA's determination
of ``no adverse effect,'' as defined by the regulations implementing
the NHPA, and its subsequent concurrence by the SHPO, would not
necessarily eliminate the need for a Section 4(f) evaluation. The
programmatic evaluation provides additional flexibility in addressing
adverse impacts and Section 106 ``adverse effects'' to historic
property, where, notwithstanding these impacts, there results an
overall enhancement of the Section 4(f) property. In the example cited
above, if the Applicant or the FHWA developed plans to renovate the
historic railroad station in such a way that the functions and values
of the station were enhanced yet the design still did not meet the
Secretary of Interior's Standards and Guidelines (e.g., due to changes
necessary to comply with the Americans with Disabilities Act), the
project might still qualify for this programmatic evaluation. The
example has been rewritten for clarity.
The MDSHA commented on the example where a Section 106 adverse
effect determination was rendered; that it was not clear how the
programmatic evaluation could be applied as the official with
jurisdiction would be contradicting itself by agreeing that the action
had a beneficial effect.
This result would depend upon the enhancement and mitigation
provided and, in the end, how the officials with jurisdiction view the
results of that mitigation and enhancement. The FHWA may determine that
a project has an adverse effect as defined in the Section 106
regulation on a particular function or value of a Section 4(f)
property, but for the programmatic evaluation to apply there cannot be
a ``substantial diminishment'' of the activities, features, and
attributes that qualify the property for Section 4(f) protection. Not
every adverse effect rises to the level of substantial diminishment.
For instance, the removal or moving of one contributing component of a
historic district may result in an improvement to the access or
continuity of the overall property. An example would be the creation of
a pedestrian promenade within the historic district that recreates a
lost element of the district and improves its economic vitality.
Additionally, the Section 106 process does not consider the future do-
nothing alternative, yet within this programmatic evaluation the future
do-nothing is considered when determining net benefit. Therefore, the
SHPO, without conflict, may concur with an adverse effect determination
under Section 106, but may agree that the proposed project has a net
benefit and will not result in substantial diminishment of the property
under this programmatic evaluation.
When the FHWA utilizes this programmatic evaluation, documentation
should be requested from the official(s) with jurisdiction that a net
benefit will result from implementation of the project and that there
is no substantial diminishment of protected activities, features or
attributes of the protected property. This agreement may be
incorporated into the Section 106 Agreement or other correspondence
related to the Section 106 consultation process where the Section 4(f)
protected property is historic, however, it should be clear that the
Section 4(f) related request is separate and distinct from Section 106
consultation. If a historic property also meets other Section 4(f)
criteria (i.e., historic park) and there are multiple officials with
jurisdiction, they also have a role in determining net benefit.
In response to the comments received concerning needed guidance and
in recognition of the need to further clarify the intended use of this
programmatic evaluation, the examples from the draft were rewritten and
new examples were added.
Introduction
Referring to the last sentence of the Introduction, the NPS
commented that the listing of these few programs in the proposed
programmatic evaluation might lead to the incorrect interpretation that
the list is all-inclusive rather than a sampling.
Not to mislead any intending user of the programmatic evaluation,
the partial listing has been removed and the portion of the all-
inclusive discussion stating, ``any other applicable Federal
environmental requirements'' was retained.
Applicability
The WIDOT commented that the proposed programmatic evaluation is
limited in its scope and will apply only to a small subset of projects.
Initially, utilization of the programmatic evaluation may be
limited, but over time it is anticipated that it will have increased
use as Applicants, the official(s) with jurisdiction, and the FHWA
learn how to incorporate actions beneficial to Section 4(f) properties
into transportation projects and realize the reduction in regulatory
and internal review times that will result from the application of this
programmatic evaluation.
The TXDOT and others requested clarification of language found in
[[Page 20625]]
Applicability, Item Numbers 4 and 5, which contain discussions of the
roles of ``all parties'' and ``other appropriate parties.'' It was
suggested that this be clarified to avoid the appearance of
subjectively defining these categories on a case-by-case basis and
recommend referencing Section 106 language for ``consulting parties.''
The concern expressed in this comment is recognized and the
recommendation has been adopted in part. The language has been reworded
to eliminate ``other appropriate parties.'' This change respects the
distinction between Section 4(f) and 36 CFR part 800.
The NPS commented that the success of existing ``minor
involvement'' programmatic Section 4(f) evaluations has been due to the
following factors, (1) they are restricted to improvements on
essentially the existing alignment, (2) the maximum acreage limitations
are defined, and (3) they do not apply to projects for which an EIS is
prepared.
The essence of this programmatic evaluation is distinct from the
existing ``minor uses'' programmatic evaluations in that its
application is dependent on a resulting positive outcome instead of a
minor use. For this reason its application is appropriate and allowable
in conjunction with both existing and new alignments. The maximum-
acreage-allowable criterion was specified in the programmatic
evaluation for minor uses of parks, recreation areas and wildlife and
waterfowl refuges to assist in defining minor use in spatial terms. The
amount of property used is not an appropriate factor in determining the
net benefit and may inappropriately limit application of this
evaluation in some cases. Therefore, the application of this
programmatic will remain the same so as not to reduce its potential
effectiveness and application.
Since this programmatic evaluation can provide the impetus
necessary to develop creative measures of avoidance, minimization, and
enhancement for impacts to protected Section 4(f) properties, it is
appropriate for use with all environmental class of actions, including
EISs, in which the applicability criteria is satisfied.
The NPS and DOI noted that the programmatic evaluation does not
clearly define the role of agencies holding a contractual or real
estate interest in the subject property.
We do not believe it is necessary to specify a criterion that
singles out the NPS or any other agency in determining applicability of
the programmatic evaluation. Such an encumbrance would not be affected
by FHWA's Section 4(f) determination. Where the NPS or another agency
has the ``last word'', under another statute, that responsibility
remains intact. A sentence was added to the final programmatic
evaluation requiring coordination with the appropriate agency, where
such encumbrances exist, to clarify the process.
For Section 4(f) properties, other than privately owned historic
resources, the FHWA and the Applicant shall pursue with due diligence,
during early stages of project development, determination of whether or
not the property in question received a LWCFA grant. If the Applicant
or the FHWA have concerns about whether a park area might have received
a LWCF grant they should contact one of the National Park Service field
offices or State Agency, as listed in the ``Contact List'' on the
following Web site: http://www.nps.gov/ncrc/programs/lwcf/protect.html.
Administrators have databases of grant-assisted sites that will help
them to determine whether Fund protections apply; also some States have
their own grant programs that afford similar protection. Additional
information and addresses for National Park Service Offices and State
Liaison Officers for the Land and Water Conservation Fund can be found
at the following Web site: http://www.nps.gov/ncrc/programs/lwcf/protect.html.
The NEPA documentation, project file or Section 4(f) documentation
shall include evidence of the determination.
The DOI suggested that ``National Historic Landmarks'' should be
explicitly identified as National Register eligible property and that
additional stipulations to address situations that involve National
Natural Landmarks be added.
Since there is no distinction between National Historic Landmarks
and other National Register eligible properties where Section 4(f) is
concerned, the draft language is retained. Also, the programmatic
evaluation would apply to those National Natural Landmarks that met the
statutory definition of a Section 4(f) protected property.
The NPS also expressed concern that the FHWA will have the ``sole
responsibility'' for determining whether a public park area will
receive a net benefit. The programmatic evaluation requires the FHWA to
reach agreement with the officials with jurisdiction; therefore, FHWA
will never have the ``sole responsibility'' for determining net
benefit.
As stated above, the language in the final programmatic evaluation
addresses the concerns of the NPS. If agreement is not reached among
the FHWA, the Applicant and official(s) with jurisdiction, then the
programmatic evaluation cannot be used. If, for example, the NPS
requires full replacement of federally encumbered property pursuant to
LWCFA, then that obligation will continue to require at least full
replacement of the impacted land as determined under that statute
whether or not there is a net benefit finding. This holds true for any
necessary provision, whether Federal or State, that relates to the
impacts of a Section 4(f) property. This is why early consultation and
input from all appropriate official(s) with jurisdiction is necessary
and required.
The MDSHA commented on an apparent discrepancy between one of the
examples and the Applicability section. The MDSHA notes that the
Applicability section states that the programmatic evaluation may be
applied if, among other things, the project does not require the
demolition or major alteration of the characteristics that qualify the
property for the NRHP. Yet the example of the reconstructed,
deteriorated historic feature was deemed appropriate, even given the
adverse effect determination.
Changes have been made to the Applicability section to address this
concern. Additionally, the example has been rewritten for clarity.
There is no discrepancy as the example is for a reconstruction of a
contributing element, which the SHPO, as the official with
jurisdiction, deems to be a net benefit to the property when compared
to the do-nothing alternative, which leaves the wall in a deteriorated
condition. Even though the FHWA could determine and the SHPO concur
that the removal and reconstruction of the wall would be an adverse
effect under Section 106, the SHPO or THPO could find that the project
results in an overall benefit. The programmatic evaluation allows for
impacts of some of the functions and/or values of the property as long
as there is a collective improvement and there is no substantial
diminishment to those functions and values that originally qualified
the property for protection.
Relating this back to the example at hand, even though the wall is
considered an important function or value in determining Section 106
significance of the historic property, the reconstruction of the wall
is neither considered a substantial diminishment nor a major alteration
but rather an improvement over its existing condition, the anticipated
condition of the future no-build and the condition of the historic site
itself, thereby qualifying as a net benefit.
[[Page 20626]]
The MDSHA commented on Applicability, Item Number 4, and identified
a perceived duplication of Section 106 and Section 4(f) efforts. The
MDSHA asked whether an adverse effect on an historic property is
obviated by a net benefit to the resource such that, there will not be
a need for a Section 106 MOA. The CALTRANS added that the SHPO's or
THPO's written determination of no adverse effect under Section 106
should suffice as evidence of written agreement under Applicability,
Item Number 5 to eliminate the need for additional efforts on the part
of the SHPO or THPO.
Where required by 36 CFR part 800, an MOA or Programmatic Agreement
would be a prerequisite for Section 4(f) approval under this
programmatic evaluation similar to the Final Nationwide Section 4(f)
Evaluation and Approval for Federally-Aided Highway Projects with Minor
Involvements with Historic Sites and the Programmatic Section 4(f)
Evaluation and Approval for FHWA Projects that Necessitate the Use of
Historic Bridges. The conditions and measures to achieve a net benefit
may be established in the MOA. However, the MOA, or any additional or
separate documentation, must clearly record that agreement has been
reached among the officials with jurisdiction, the FHWA and the
Applicant and all appropriate documentation must be retained for the
project record consistent with NEPA project documentation retention
practices and policies.
In summation, any written agreement developed as part of the
Section 106 process can suffice for the Applicability criteria of this
programmatic evaluation if such agreements (typically MOAs) include an
agreement by the officials with jurisdiction that the project results
in a net benefit to a protected Section 4(f) property. However, all the
officials with jurisdiction may not want to be party to a Section 106
agreement and other Section 106 parties not necessarily the ``officials
with jurisdiction.''
Regarding Applicability, Item Number 4, the AHC commented that
``such measures'' are ``vague and weak'' and recommended that this be a
stronger, more specific statement.
The language in Applicability, Item Number 4 is consistent with
existing programmatic evaluations and is retained with minor editorial
changes in the final version. The language allows for flexibility that
makes the programmatic evaluation as viable a procedural option as
possible while being as responsive to the expert opinions of the
official(s) with jurisdiction and the varied qualities of the
properties they manage.
The NYSDOT commented on the ``substantial diminishment''
requirement related to determining ``net benefit'' in the Applicability
section. It suggested that the requirement is contrary to the concept
of ``net benefit'', weakens the concept and narrows the opportunity to
effectively benefit the resource.
Programmatic evaluations by their nature are limited to projects
that meet a specific set of facts and applicability requirements. A
project that will result in a substantial diminishment of any of the
functions or values that originally qualified the property for Section
4(f) protection should be evaluated using an individual evaluation. The
wording of this programmatic evaluation is designed to ensure that a
net benefit is achieved without substantial diminishment of the
functions or values (features or attributes) that make the property
eligible for Section 4(f) protection. Still, there is flexibility in
determining what function or values are keys to the properties'
eligibility for protection and what constitutes a substantial
diminishment of those functions and values.
Alternatives
The AHC commented that it is difficult to discern how the
programmatic evaluation helps the FHWA when it comes to its avoidance
alternatives analysis and the PennDOT recognized that the programmatic
evaluation limits the alternatives that must be analyzed and
documented.
The PennDOT is correct; the avoidance alternatives that must be
considered are all-inclusive. This approach is consistent with the
existing programmatic evaluations.
The DOI suggested that the ``Do Nothing Alternative'' be replaced
with the term ``No Action Alternative,'' in accordance with NEPA
guidance.
To avoid confusion, the term ``Do Nothing Alternative'' will be
retained, as it is consistent with the other programmatic evaluations.
The PennDOT recommended that the ``qualitative importance or
value'' of each Section 4(f) resource should be considered in
determining whether or not an avoidance alternative is feasible and
prudent. It further recommended that for historic properties, the
condition and ownership should be considered as well.
The programmatic addresses those situations where the
transportation use results in an overall enhancement of the property as
agreed to by the official(s) with jurisdiction, the FHWA and the
Applicant. The ability to benefit the property must be factored into
the feasible and prudent determination. The consideration of the
avoidance alternative comes from the Section 4(f) statutory
requirements, which have not changed. The Section 4(f) legislation
addresses historic properties regardless of ownership of the property.
Findings
The DOI recommended revising the first sentence to indicate that to
apply the programmatic evaluation to a project, the required no-action
and avoidance alternatives must be found not feasible and prudent
through a written determination.
The wording has been changed to reflect the comment.
The DOI suggested inserting the phrase ``jeopardize the continued
existence of any endangered or threatened species or result in the
destruction or adverse modification of designated critical habitat,''
before the phrase ``substantial damage to wetlands''. The suggested
language has been incorporated.
The NYSDOT commented on the proposed language, ``An accumulation of
these kinds of problems must be of extraordinary magnitude when
compared to the proposed use of the Section 4(f) land to determine that
(the avoidance) alternative is not feasible and prudent.'' It was
suggested that this approach would seem more valid in the context of a
full 4(f) evaluation where there is a net negative effect to a historic
property, than in a programmatic evaluation context where the ``net''
effect is positive.
This language is consistent with existing Section 4(f)
implementation policy and has been incorporated in essence. The first
condition of Section 4(f) use is the determination that no feasible and
prudent avoidance alternatives exist. The programmatic evaluation must
include this determination in order to facilitate compliance with the
statute and regulations. This programmatic evaluation identifies the
variables that must be considered when making the determination of
feasible and prudent. Application of this programmatic evaluation is
optional and an individual evaluation may be prepared at the discretion
of the Administration in those cases where it is appropriate.
The AHC asked about how the evidence of no feasible and prudent
alternative will be collected and distributed.
Appropriate evidence that no feasible and prudent alternative to
the use of Section 4(f) property exists must be a part of the FHWA's
administrative record for the project. This supporting
[[Page 20627]]
information and determination will be documented in the appropriate
NEPA document or project record consistent with current Section 4(f)
policy, guidance and the requirements of this programmatic evaluation.
The AHC also asked about what would constitute a ``substantial
increase in cost'' and suggested that we include an approximate figure
or at least a percentage.
The FHWA, in consultation with the Applicant, will determine what
is considered a substantial increase. The language is identical to that
used in previous programmatic evaluations.
The AHC commented that Findings 2(e) seem to be intended to play
one resource improvement against another's adverse effect.
The statement found in Findings 2(e) is not intended to play one
property against another. The purpose of the statement is to give
appropriate consideration and weight to the beneficial measures of the
project when determining whether an alternative is prudent and
feasible.
In regard to item number 2(e), the NPS questioned whether ``a
missed opportunity'' to benefit a Section 4(f) property has any
relevance in determining whether or not an alternative is feasible and
prudent.
Section 4(f) established a two-fold emphasis for the Secretary of
Transportation: to protect and to enhance significant resources
identified for special consideration. To date, programmatic evaluations
have focused on projects with minor impacts to these protected
properties. This programmatic evaluation is designed to allow the FHWA,
the Applicant and official(s) with jurisdiction over the Section 4(f)
properties, to look for opportunities where transportation actions can
enhance Section 4(f) properties, even where there is a use of some
property. Because a net benefit on a property can only be determined
when all parties agree, the programmatic evaluation will only be used
when it is deemed appropriate and in the best interests of the
protected property. To ensure that 2(e) is not abused or equated to a
low bar, we included language to clarify that for a project to qualify
for 2(e) there must be a substantial missed opportunity to benefit a
Section 4(f) property.
Mitigation and Measures To Minimize Harm
Several commenters indicated a confusion regarding the wording of
this section and offered suggestions. The principal reason is the
combination of ``Measures to Minimize Harm'' and ``Mitigation
Measures.'' When put together, commenters read it as ``Measures to
Minimize Harm and Measures to Minimize Mitigation''. Obviously this is
not the intent; however, to rectify this misunderstanding the language
has been changed to read: ``Mitigation and Measures to Minimize Harm.''
Although, measures to minimize harm are considered mitigation, this
language is consistent with the Section 4(f) statute.
Coordination
The NPS recommended that the programmatic evaluation require that
all projects be coordinated with the appropriate DOI bureaus.
As noted earlier, for those projects where an agency or bureau of
DOI is an official with jurisdiction, or where the LWCFA applies,
coordination will be necessary as a procedure in meeting the
applicability requirements and approval of this programmatic
evaluation.
Another comment questioned the statement regarding the need for the
FHWA to coordinate with the United States Coast Guard (USCG) before
applying the programmatic evaluation to projects requiring a Section 9
Bridge permit.
When the proposed programmatic evaluation was issued, the USCG was
still a part of the USDOT and therefore it had Section 4(f)
responsibilities. Since that time, the USCG has been relocated to the
U.S. Department of Homeland Security, eliminating its Section 4(f)
responsibility. However, the USCG still has responsibility related to
issuance of Section 9 Bridge permits. Wording has been changed to
remove coordination with the USCG relative to Section 4(f) compliance.
The WIDOT noted that the constructive consultation of
transportation officials, the officials with jurisdiction and resource
agency staff is encouraged.
Consultation is not only encouraged, it is required. For this
programmatic evaluation to be successful, good coordination and
consultation are imperative.
Public Involvement
There were no substantive comments regarding this section and no
changes have been made.
Approval Procedure
The AHC asked, relative to the last sentence of Item Number 6, if
the Advisory Council on Historic Preservation agreed to review all
programmatic evaluations.
The last sentence in Item Number 6 of the Approval Procedures in
the draft programmatic should have been a separate paragraph. The
purpose of the statement in the draft was to indicate that the ACHP and
other agencies had been given the opportunity to review and comment on
the draft. Furthermore, the FHWA consulted with the ACHP, the DOI and
the NPS prior to finalizing the programmatic evaluation. To avoid
confusion, this statement has been removed from the final programmatic
evaluation.
Examples of Intended Use
One example of a net benefit to a historic property would be the
reconstruction of a deteriorated or lost historic feature (such as a
rock wall or auxiliary building) where mitigation related to Section
106 consultation includes the reconstruction of the feature in a
slightly different location because of the design requirements of a
needed improvement to the adjacent transportation facility.
Consultation pursuant to Section 106 of the National Historic
Preservation Act (16 U.S.C. 470f) would likely result in an ``adverse
effect'' determination. However, the SHPO, the FHWA, and the Applicant
all agree that the reconstruction would enhance those qualities for
which the property was determined eligible, even with the removal and
replacement of the historically associated feature. In this case, the
existing FHWA Final Nationwide Section 4(f) Evaluation and Approval for
Federally-Aided Highway Projects with Minor Involvements with Historic
Sites would not be applicable, but if SHPO, as the official with
jurisdiction, agrees that the impacts do not reach a level of
substantial diminishment, the FHWA may determine that this programmatic
evaluation would be applicable if the evaluation finds that the use of
the property is prudent.
A second example involves a partial or even total relocation of a
Section 4(f) property (such as a community park) to a location within
the community that would have a greater value and use to that
community. In this case, the existing nationwide minor use programmatic
could not be used because the take of land would exceed the limitation
included in it and would impair the use of the remaining Section 4(f)
land. Again, this programmatic evaluation would be applicable if the
officials with jurisdiction agree that the partial (or total)
relocation would be a net benefit to the park and that the relocation
does not result in the substantial diminishment of the activities,
feature or attributes for which
[[Page 20628]]
the park is protected under Section 4(f). For instance, this
programmatic evaluation can apply where the officials with jurisdiction
identify a net benefit due to existing inadequate or unsafe access
conditions to a park which presently minimizes the use of the park and
the partial relocation can provide safe access; or in a situation where
a park has minimal public use due to changes in adjacent land use and
where the officials with jurisdiction agree that the total relocation
will be of greater park or recreational value to the community.
A final example is the rehabilitation of an historic railroad
station to maintain its major historic elements and to permit its
continued use as a historic transportation facility. In some cases,
such rehabilitation, even with considerable sensitivity to the historic
character of the resource, cannot be accomplished without a Section 106
adverse effect determination, and neither the regulatory provision at
23 CFR 771.135(f) related to historic transportation facilities nor the
historic site programmatic could be used. The adverse effect may be
caused, for example, by modifications to provide access for the
disabled or by interior reconfiguration to provide retail space to keep
the station economically viable as a transportation facility. The SHPO,
as the official with jurisdiction, may concur with the FHWA
determination of ``adverse effect,'' but may also recognize the net
benefits of the restoration of the station and the assurance of its
continued use may greatly outweigh the adverse effect, i.e., not
substantially diminish the qualities for which the property was
determined eligible.
There will be situations when this programmatic evaluation would
not apply. For example, the owner of an individually eligible historic
building has abandoned the building so that it is likely to continue to
deteriorate. The transportation agency proposes to demolish the
building for a transportation improvement, and agrees to record the
building in accordance with the standards set by the Historic American
Building Survey (HABS) prior to its demolition. In the project design
year (20 years hence) without the project, the building may be
effectively demolished through neglect. In the design year of the
project, the building will be demolished but a record of the building
will be made. Although having the record of the demolished building is
an improvement over not having such a record, it is not a net benefit
to the resource, as the resource will no longer exist. Therefore, this
programmatic evaluation would not apply because it requires that there
be a resource to which a net benefit would result. In this case, an
individual Section 4(f) evaluation would be needed. On the other hand,
if the same abandoned historic building (contributing component) lies
within a large commercial historic district, where the officials with
jurisdiction (i.e., the SHPO) concur with an ``adverse effect''
determination pursuant to Section 106 consultation, but determine that
the removal of the building with appropriate mitigation will have a net
benefit to the historic district as the use of the resource (historic
district) by the transportation project will improve access or parking
which will likely improve the economic viability of the majority of the
historic district, thus determining that the use will not rise to the
level of ``substantial diminishment'' of the qualities of the resource.
In such a situation, this programmatic evaluation might be applied.
The FHWA recognizes and appreciates the effort of all parties who
provided comments for consideration in the development and finalization
of this programmatic evaluation.
Authority: 49 U.S.C. 303; 23 U.S.C. 138; 49 CFR 1.48.
Issued on: April 13, 2005.
Mary E. Peters,
Federal Highway Administrator.
The text of the FHWA Programmatic Section 4(f) Evaluation and
Approval for Transportation Projects That Have a Net Benefit to a
Section 4(f) Property is as follows:
U.S. Department of Transportation
Federal Highway Administration (FHWA)
FINAL
Programmatic Section 4(f) Evaluation and Approval for Transportation
Projects That Have a Net Benefit to a Section 4(f) Property
This nationwide programmatic Section 4(f) evaluation (programmatic
evaluation) has been prepared for certain federally assisted
transportation improvement projects on existing or new alignments that
will use property of a Section 4(f) park, recreation area, wildlife or
waterfowl refuge, or historic property, which in the view of the
Administration and official(s) with jurisdiction over the Section 4(f)
property, the use of the Section 4(f) property will result in a net
benefit to the Section 4(f) property. Definitions:
``Administration'' refers to the Federal Highway Division
Administrator or Division Engineer (as appropriate).
``Applicant'' refers to a State Highway Agency or State Department
of Transportation, local governmental agency acting through the State
Highway Agency or State Department of Transportation.
A ``net benefit'' is achieved when the transportation use, the
measures to minimize harm and the mitigation incorporated into the
project results in an overall enhancement of the Section 4(f) property
when compared to both the future do-nothing or avoidance alternatives
and the present condition of the Section 4(f) property, considering the
activities, features and attributes that qualify the property for
Section 4(f) protection. A project does not achieve a ``net benefit''
if it will result in a substantial diminishment of the function or
value that made the property eligible for Section 4(f) protection.
``Official(s) with jurisdiction'' over Section 4(f) property
(typically) include: for a park, the Federal, State or local park
authorities or agencies that own and/or manage the park; for a refuge,
the Federal, State or local wildlife or waterfowl refuge owners and
managers; and for historic sites, the State Historic Preservation
Officer (SHPO) or Tribal Historic Preservation Officer (THPO),
whichever has jurisdiction under Section 106 of the National Historic
Preservation Act (16 U.S.C. 470f).
Applicability
The Administration is responsible for review of each transportation
project for which this programmatic evaluation is contemplated to
determine that it meets the criteria and procedures of this
programmatic evaluation. The information and determination will be
included in the applicable National Environmental Policy Act (NEPA)
documentation and administrative record. This programmatic evaluation
will not change any existing procedures for NEPA compliance, public
involvement, or any other applicable Federal environmental requirement.
This programmatic evaluation satisfies the requirements of Section
4(f) for projects meeting the applicability criteria listed below. An
individual Section 4(f) evaluation will not need to be prepared for
such projects:
1. The proposed transportation project uses a Section 4(f) park,
recreation area, wildlife or waterfowl refuge, or historic site.
2. The proposed project includes all appropriate measures to
minimize harm and subsequent mitigation necessary to preserve and
enhance those features and values of the property that originally
qualified the property for Section 4(f) protection.
3. For historic properties, the project does not require the major
alteration of
[[Page 20629]]
the characteristics that qualify the property for the National Register
of Historic Places (NRHP) such that the property would no longer retain
sufficient integrity to be considered eligible for listing. For
archeological properties, the project does not require the disturbance
or removal of the archaeological resources that have been determined
important for preservation in-place rather than for the information
that can be obtained through data recovery. The determination of a
major alteration or the importance to preserve in-place will be based
on consultation consistent with 36 CFR part 800.
4. For historic properties, consistent with 36 CFR part 800, there
must be agreement reached amongst the SHPO and/or THPO, as appropriate,
the FHWA and the Applicant on measures to minimize harm when there is a
use of Section 4(f) property. Such measures must be incorporated into
the project.
5. The official(s) with jurisdiction over the Section 4(f) property
agree in writing with the assessment of the impacts; the proposed
measures to minimize harm; and the mitigation necessary to preserve,
rehabilitate and enhance those features and values of the Section 4(f)
property; and that such measures will result in a net benefit to the
Section 4(f) property.
6. The Administration determines that the project facts match those
set forth in the Applicability, Alternatives, Findings, Mitigation and
Measures to Minimize Harm, Coordination, and Public Involvement
sections of this programmatic evaluation.
This programmatic evaluation can be applied to any project
regardless of class of action under NEPA.
Alternatives
To demonstrate that there are no feasible and prudent alternatives
to the use of Section 4(f) property, the programmatic evaluation
analysis must address alternatives that avoid the Section 4(f)
property. The following alternatives avoid the use of the Section 4(f)
property:
1. Do nothing.
2. Improve the transportation facility in a manner that addresses
the project's purpose and need without a use of the Section 4(f)
property.
3. Build the transportation facility at a location that does not
require use of the Section 4(f) property.
This list is intended to be all-inclusive. The programmatic
evaluation does not apply if a feasible and prudent alternative is
identified that is not discussed in this document. The project record
must clearly demonstrate that each of the above alternatives was fully
evaluated before the Administration can conclude that the programmatic
evaluation can be applied to the project.
Findings
For this programmatic evaluation to be utilized on a project there
must be a finding, given the present condition of the Section 4(f)
property, that the do-nothing and avoidance alternatives described in
the Alternatives section above are not feasible and prudent. The
findings (1, 2, and 3. below) must be supported by the circumstances,
studies, consultations, and other relevant information and included in
the administrative record for the project. This supporting information
and determination will be documented in the appropriate NEPA document
and/or project record consistent with current Section 4(f) policy and
guidance.
To support the finding, adverse factors associated with the no-
build and avoidance alternatives, such as environmental impacts, safety
and geometric problems, decreased transportation service, increased
costs, and any other factors may be considered collectively. One or an
accumulation of these kinds of factors must be of extraordinary
magnitude when compared to the proposed use of the Section 4(f)
property to determine that an alternative is not feasible and prudent.
The net impact of the do-nothing or build alternatives must also
consider the function and value of the Section 4(f) property before and
after project implementation as well as the physical and/or functional
relationship of the Section 4(f) property to the surrounding area or
community.
1. Do-Nothing Alternative.
The Do-Nothing Alternative is not feasible and prudent because it
would neither address nor correct the transportation need cited as the
NEPA purpose and need, which necessitated the proposed project.
2. Improve the transportation facility in a manner that addresses
purpose and need without use of the Section 4(f) property.
It is not feasible and prudent to avoid Section 4(f) property by
using engineering design or transportation system management
techniques, such as minor location shifts, changes in engineering
design standards, use of retaining walls and/or other structures and
traffic diversions or other traffic management measures if implementing
such measures would result in any of the following:
(a) Substantial adverse community impacts to adjacent homes,
businesses or other improved properties; or
(b) Substantially increased transportation facility or structure
cost; or
(c) Unique engineering, traffic, maintenance or safety problems; or
(d) Substantial adverse social, economic or environmental impacts;
or
(e) A substantial missed opportunity to benefit a Section 4(f)
property; or
(f) Identified transportation needs not being met; and
(g) Impacts, costs or problems would be truly unusual, unique or of
extraordinary magnitude when compared with the proposed use of Section
4(f) property after taking into account measures to minimize harm and
mitigate for adverse uses, and enhance the functions and value of the
Section 4(f) property.
Flexibility in the use of applicable design standards is encouraged
during the analysis of these feasible and prudent alternatives.
3. Build a new facility at a new location without a use of the
Section 4(f) property.
It is not feasible and prudent to avoid Section 4(f) property by
constructing at a new location if:
(a) The new location would not address or correct the problems
cited as the NEPA purpose and need, which necessitated the proposed
project; or
(b) The new location would result in substantial adverse social,
economic or environmental impacts (including such impacts as extensive
severing of productive farmlands, displacement of a substantial number
of families or businesses, serious disruption of community cohesion,
jeopardize the continued existence of any endangered or threatened
species or resulting in the destruction or adverse modification of
their designated critical habitat, substantial damage to wetlands or
other sensitive natural areas, or greater impacts to other Section 4(f)
properties); or
(c) The new location would substantially increase costs or cause
substantial engineering difficulties (such as an inability to achieve
minimum design standards or to meet the requirements of various
permitting agencies such as those involved with navigation, pollution,
or the environment); and
(d) Such problems, impacts, costs, or difficulties would be truly
unusual or unique or of extraordinary magnitude when compared with the
proposed use of the Section 4(f) property after taking into account
proposed measures to minimize harm, mitigation for adverse use, and the
enhancement of the Section 4(f) property's functions and value.
[[Page 20630]]
Flexibility in the use of applicable design standards is encouraged
during the analysis of feasible and prudent alternatives.
Mitigation and Measures To Minimize Harm
This programmatic evaluation and approval may be used only for
projects where the Administration, in accordance with this evaluation,
ensures that the proposed action includes all possible planning to
minimize harm, includes appropriate mitigation measures, and that the
official(s) with jurisdiction agree in writing.
Coordination
In early stages of project development, each project will require
coordination with the Federal, State, and/or local agency official(s)
with jurisdiction over the Section 4(f) property. For non-Federal
Section 4(f) properties, i.e., State or local properties, the
official(s) with jurisdiction will be asked to identify any Federal
encumbrances. When encumbrances exist, coordination will be required
with the Federal agency responsible for such encumbrances.
Copies of the final written report required under this programmatic
evaluation shall be offered to the official(s) with jurisdiction over
the Section 4(f) property, to other interested parties as part of the
normal NEPA project documentation distribution practices and policies
or upon request.
Public Involvement
The project shall include public involvement activities that are
consistent with the specific requirements of 23 CFR 771.111, Early
coordination, public involvement and project development. For a project
where one or more public meetings or hearings are held, information on
the proposed use of the Section 4(f) property shall be communicated at
the public meeting(s) or hearing(s).
Approval Procedure
This programmatic evaluation approval applies only after the
Administration has:
1. Determined that the project meets the applicability criteria set
forth in Applicability section;
2. Determined that all of the alternatives set forth in the
Findings section have been fully evaluated;
3. Determined that the findings in the programmatic evaluation
(which conclude that the alternative recommended is the only feasible
and prudent alternative) result in a clear net benefit to the Section
4(f) property;
4. Determined that the project complies with the Mitigation and
Measures to Minimize Harm section of this document;
5. Determined that the coordination and public involvement efforts
required by this programmatic evaluation have been successfully
completed and necessary written agreements have been obtained; and
6. Documented the information that clearly identifies the basis for
the above determinations and assurances.
[FR Doc. 05-7812 Filed 4-19-05; 8:45 am]
BILLING CODE 4910-22-P