02-31888. 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

AGENCIES:

Federal Highway Administration (FHWA), Federal Transit Administration (FTA), DOT.

ACTION:

Notice and request for comments.

SUMMARY:

The FHWA jointly with the FTA proposes a nationwide programmatic Section 4(f) evaluation (programmatic evaluation) for use in certain federally assisted or direct Federal transportation improvement projects where the use of land from a Section 4(f) park, recreation area, wildlife or waterfowl refuge, or historic property will result in a net benefit to the Section 4(f) property. The use of such a programmatic evaluation is intended to promote environmental stewardship and streamline the Section 4(f) process by reducing the time necessary to prepare an evaluation that satisfies Section 4(f) requirements. This programmatic evaluation would provide an additional procedural option for demonstrating compliance with the requirements of Section 4(f). It would supplement existing nationwide Section 4(f) evaluations all of which would remain in effect. The FHWA and the FTA solicit comments on this proposed nationwide programmatic Section 4(f) evaluation that could be used in certain instances where the effects of a proposed transportation project result in a net benefit to a Section 4(f) property.

DATES:

Comments must be received on or before February 18, 2003.

ADDRESSES:

Submit written, signed comments to FHWA Docket No. FHWA-2002-13290 to the Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001, or submit electronically at http://dms.dot.gov/​submit. All comments should include the docket number that appears in the heading of this document. All comments received will be available for examination and copying at the above address from 9 a.m. to 5 p.m., e.t., Monday through Friday, except Federal holidays. Those desiring notification of receipt of comments must include a self-addressed, stamped postcard or you may print the acknowledgement page that appears after submitting comments electronically.

FOR FURTHER INFORMATION CONTACT:

For FHWA: Mr. Leland Dong, Office of Project Development and Environmental Review, HEPE, [phone]; Ms. April Marchese, Office of the Chief Counsel, HCC-30 [phone]. FHWA office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays. For FTA: Mr. Joseph Ossi, Office of Planning, TPL-22, [phone]; Mr. Scott Biehl, Office of the Chief Counsel, TCC-30, [phone]. FTA office hours are from 8:30 a.m. to 5:00 p.m. e.t., Monday through Friday, except Federal holidays. Both offices are located at 400 Seventh Street SW., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Electronic Access and Filing: You may submit or retrieve comments online through the Document Management System (DMS) at: http://dms.dot.gov/​submit. Acceptable formats include: MS Word (versions 95 to 97), MS Word for Mac (versions 6 to 8), Rich Text File (RTF), American Standard Code Information Interchange (ASCII)(TXT), Portable Document Format (PDF), and WordPerfect (versions 7 or 8). The DMS is available 24 hours each day, 365 days each year. Electronic submission and retrieval help and guidelines are available under the help section of the web site.

An electronic copy of this document may also be downloaded from the Government Printing Office's Electronic Bulletin Board Service at [phone] by using a computer, modem and suitable communications software. Internet users may also reach the Office of the Federal Register's home page at: http://www.archives.gov and the Government Printing Office's web page at: http://www.access.gpo.gov/​nara.

Background

Federally aided and direct Federal transportation projects that propose to use land from significant public parks, recreation areas, and wildlife and/or waterfowl refuges, or from significant historic sites are subject to Section 4(1) ^[1] 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 (the Act). The Act prohibits such use unless the FHWA or FTA 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 Section 4(f) evaluation. For FHWA projects, it may be possible to utilize one of four nationwide programmatic Section 4(f) evaluations that were developed for specific circumstances.^[2] It should be noted that the FTA has not previously made any programmatic Section 4(f) determinations.

The benefits of nationwide programmatic Section 4(f) evaluations are realized by substantially reducing the time and effort necessary to satisfy the requirements of the Act, however, each has specific limiting applicability criteria. For projects that do not meet the applicability criteria, the FHWA or the FTA must prepare an individual, case-specific Section 4(f) evaluation.

The purpose in drafting this proposed nationwide programmatic Section 4(f) evaluation is to address projects that have a net benefit, or enhancement to a Section 4(f) property. Currently, if a transportation project proposes a use of a Section 4(f) property, it is possible that none of the existing nationwide programmatic Section 4(f) evaluations can be utilized, even if transportation officials and officials having jurisdiction over the Section 4(f) property all agree that there would be a net benefit to the Section 4(f) property. Officials having jurisdiction may include: Federal, State or local park authorities; in the case of historic resources, the State Historic Preservation Officer (SHPO); or when appropriate, the Tribal Historic Preservation Officer (THPO); and any other official having official involvement (i.e. Department of Interior (DOI) representative because of funding from the Land and Water Conservation Fund Act, etc.). A net benefit is achieved when the use and mitigation measures result in an overall enhancement, as compared to the do-nothing alternative, in the functions and values for which the 4(f) property was originally determined eligible for Section 4(f) protection.

Description of Proposed Action

This action presents a proposed nationwide programmatic evaluation that could be used when there is a net benefit to a Section 4(f) property. The applicability criteria for this proposed programmatic evaluation states that all parties must agree with the assessment of the impacts of the project; the proposed mitigation and other measures must preserve and enhance those activities, features, or attributes of the Section 4(f) property that originally qualified the property for Section 4(f) protection when compared to the avoidance or the do-nothing alternatives; and the result must be a net benefit to the Section 4(f) property. If agreement cannot be reached, then the programmatic evaluation cannot be utilized.

Use of this proposed programmatic evaluation has the potential to streamline the existing Section 4(f) process by allowing the programmatic evaluation in lieu of an individual Section 4(f) evaluation. The programmatic evaluation is also allowed in conjunction with an Environmental Impact Statement (EIS) required by the National Environmental Policy Act of 1969 (42 U.S.C 4331 et al.).^[3]

Examples

We thought it would be beneficial to list some examples of projects having net benefits to Section 4(f) resources. These examples are as follows:

One typical example of a net benefit is the reconstruction of a deteriorated or lost historic feature (such as a rock wall) of a historic Section 4(f) property in a location slightly different than originally sited because of a needed improvement to the adjacent transportation facility. Although the property owner, the SHPO and the transportation agency all agree that the reconstruction would enhance the property, even with the loss of historic land, the consultation required by Section 106 of the National Historic Preservation Act (16 U.S.C. 470f) ^[4] would likely result in an “adverse affect” determination. In such a case, the existing FHWA nationwide programmatic evaluation for historic sites would not be applicable. However, in this situation this proposed programmatic evaluation would be applicable.

A second example could be a partial or even total relocation of a Section 4(f) property (such as a small 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 park programmatic could not be used since there is impairment of the remaining Section 4(f) land. Again, this proposed programmatic evaluation would be applicable. A third example is the placement of transportation guide signs for a recreation facility within the boundary of the Section 4(f) property. The signs would benefit both the traveling public and the Section 4(f) property itself; however, placement location could be considered a permanent use and one of the existing programmatics would not be applicable. Therefore, the proposed programmatic evaluation would be beneficial.

A final example is the renovation of an historic railroad station to maintain its major historic elements and to permit its continued use as a historic transportation facility. In most cases, such renovation, even with considerable sensitivity to the historic character of the resource, cannot be accomplished without an adverse effect on the station. Therefore, neither the regulatory provision at 23 CFR 771.135(f) related to historic transportation facilities nor the historic site programmatic could be utilized. 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 benefits of the restoration of the station and the assurance of its continued use for its historic purpose may greatly outweigh the small adverse effect.

However, there may be times when the proposed programmatic evaluation would not apply. For example, the owner of a 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) ^[5] 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. The SHPO agrees that having the record of the demolished building is an improvement over not having such a record. Nevertheless, this programmatic evaluation would not apply because it requires that the improvement of the resource be relative to the present-day condition and status of the resource. The future condition of the resource without the project is too speculative to serve as the basis for deciding whether there is a benefit to the resource. An individual Section 4(f) evaluation would be needed.

Mechanics

When it is necessary to use this proposed programmatic evaluation, the FHWA Division Administrator/Division Engineer or FTA Regional Administrator will make the appropriate Section 4(f) determination only after assuring and documenting that the project meets the applicability criteria provided in the programmatic evaluation, that the alternatives to the use of Section 4(f) property have been fully considered, that the measures to minimize harm and mitigation efforts agreed upon by the officials with net benefit to the Section 4(f) property, and that such measures have been incorporated into the project.

Authority: 49 U.S.C. 303; 23 U.S.C. 138; 49 CFR 1.48.

Issued on: December 11, 2002.

Jennifer L. Dorn,

Federal Transit Administrator.

Mary E. Peters,

Federal Highway Administrator.

The text of the FHWA/FTA Proposed Programmatic Section 4(f) Evaluation and Approval for Transportation Projects That Have a Net Benefit to a Section 4(f) Property is as follows:

Department of Transportation

Federal Highway Administration

Federal Transit Administration

Proposed 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 transportation improvement projects on existing or new alignments that will use land of a Section 4(f) park, recreation area, wildlife or waterfowl refuge, or historic property, which in the view of the official with jurisdiction over the Section 4(f) land, the use of the Section 4(f) land will result in a net benefit to the Section 4(f) property. 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.

“Administration” refers to the Federal Highway Division Administrator or Division Engineer (as appropriate) for the Federal Highway Administration, and the Regional Administrator for the Federal Transit Administration.

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. This programmatic evaluation will not change any existing procedures for NEPA compliance, public involvement, National Historic Preservation Act (NHPA) Section 106 consultation procedures, Land and Water Conservation Fund Act Section 6(f) requirements, or any other applicable Federal environmental requirements.

Applicability

This programmatic evaluation may be applied by the Administration to projects meeting the following criteria:

1. The proposed transportation project uses land of a Section 4(f) park, recreation area, wildlife or waterfowl refuge, or historic site.

2. The proposed project resulting in the use of the Section 4(f) land includes all appropriate measures to minimize harm and mitigation to preserve, rehabilitate, and enhance the activities, features, or attributes of the property that originally qualified the property for Section 4(f) protection.

3. For historic Section 4(f) properties, the project does not require the demolition or major alteration of the characteristics that qualify the property for the National Register of Historic Places (NRHP). Nor does the project require the disturbance or removal of archaeological properties that are determined important for preservation in-place rather than information obtained through data recovery. The determination of a major alteration or the importance to preserve in-place will be based on consultation in accordance with 36 CFR part 800.

4. In accordance with 36 CFR part 800, for historic Section 4(f) properties, there must be agreement reached amongst the SHPO or THPO, as appropriate, transportation officials, and other appropriate parties, on mitigation to minimize harm when there is a use of Section 4(f) property. Such measures must be incorporated into the project.

5. The officials with jurisdiction over the Section 4(f) property, or the SHPO/THPO (for historic/historic tribal properties) agree in writing with the assessment of the impacts, the proposed measures to minimize harm and mitigation necessary to preserve and enhance those activities, features, or attributes of the Section 4(f) property, and that the mitigation will result in a net benefit to the Section 4(f) property. A net benefit is achieved when the use and subsequent measures to minimize harm and mitigation result in an overall enhancement when compared to the do-nothing or avoidance alternatives using the functions and values that made the property eligible for Section 4(f) protection. A project does not achieve a “net benefit” if it will result in a substantial diminishment of any particular function or value that made the property eligible for Section 4(f) protection, even if the property overall is enhanced.

6. The Administration determines that the project facts match those set forth in the Applicability, Alternatives, Findings, and Mitigation 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 is no feasible and prudent alternative to the use of Section 4(f) property, the programmatic evaluation analysis must address alternatives that avoid the Section 4(f) land. The following alternatives avoid the use of the Section 4(f) land:

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 applied to a project, there must be a finding that the do-nothing and avoidance alternatives are not feasible and prudent. The finding must be supported by the circumstances, studies, consultations, and other relevant information for the project. To support the finding, adverse factors associated with the avoidance alternative, such as environmental impacts, safety and geometric problems, decreased transportation service, increased costs, and any other factors may be considered collectively. 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 alternative is not feasible and prudent. The net impact of any no-build or build alternative must also consider the before-and-after value and benefit of the Section 4(f) property itself and relationship 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 in the Purpose and Need, which necessitated the proposed project.

2. Improve the 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) lands 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. Implementing such measures would result in:

(a) Substantial adverse community impacts to adjacent homes, businesses or other improved properties;

(b) Substantially increased transportation facility or structure cost;

(c) Unique engineering, traffic, maintenance, or safety problems;

(d) Substantial adverse social, economic, or environmental impacts;

(e) A substantial missed opportunity to benefit a Section 4(f) property;

(f) Identified transportation needs not being met; or

(g) Impacts, costs, or problems of truly unusual or unique, or extraordinary magnitude when compared with the proposed use of Section 4(f) lands after taking into account proposed measures to minimize use and mitigate for adverse uses, and enhance the functions and value of the Section 4(f) property. Flexibility in the use of applicable standards is encouraged during the analysis of this alternative.

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) lands by constructing at a new location because:

(a) A new location would not address or correct the problems cited in the Purpose and Need, which necessitated the proposed project;

(b) A 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, substantial damage to wetlands or other sensitive natural areas, or greater impacts to other Section 4(f) lands);

(c) A 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); or

(d) 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 use, mitigation for adverse uses, and the enhancement of the Section 4(f) property's functions and value.

Flexibility in the use of applicable standards is encouraged during the analysis of this alternative.

Measures To Minimize Harm and Mitigation

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 and includes mitigation measures, and that the agency with jurisdiction agrees in writing with the assessment that the project, including measures to minimize harm, will have a net benefit and contribute towards the preservation and enhancement of the function and values of the Section 4(f) property.

Coordination

In early stages of project development, each project will require coordination with the Federal, State, and/or local agency officials having jurisdiction over the Section 4(f) property. For non-Federal Section 4(f) properties, i.e. State or local properties, the official 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 support required under this programmatic Section 4(f) evaluation shall be provided to the official(s) having jurisdiction over the Section 4(f) property and to other interested parties as part of the normal NEPA documentation process, or upon request.

The Administration will coordinate with the appropriate U.S. Coast Guard District Commander before applying this programmatic evaluation to projects requiring a Section 9 Bridge Permit.

Public Involvement

The project includes 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 hearings are held, information on the proposed use of the Section 4(f) land is communicated at the public hearing(s).

Approval Procedure

This programmatic Section 4(f) 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 this document (which conclude that the alternative recommended is the only feasible and prudent alternative) results in a clear net benefit to the function and value of the Section 4(f) property;

4. Determined that the project complies with the Measures to Minimize Harm and Mitigation section of this document;

5. Determined that the coordination and public involvement indicated in 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.

Pursuant to Section 4(f), this statement has been coordinated with the Departments of Interior, Agriculture, Housing and Urban Development, and the Advisory Council on Historic Preservation.

Footnotes

1.  Section 4(f) of the U.S. DOT Act of 1966, as subsequently amended, stated in relevant part:

“(b) The Secretary of Transportation shall cooperate with the Secretaries of the Interior, Housing and Urban Development, and Agriculture, and with the States in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of lands crossed by transportation activities.

(c) The Secretary may approve a transportation program or project requiring the use (other than any project for a park road or parkway under section 204 of title 23) of publically owned land of a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance, or land of an historic site of national, State, or local significance (as determined by the Federal, State, or local officials having jurisdiction over the park, area, refuge, or site) only if—

(1) there is no prudent and feasible alternative to using that land; and

(2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.” 49 U.S.C 303.

2.  Final Nationwide Section 4(f) Evaluations and Approvals for Federally-Aided Highway Projects with Minor Involvements With Public Parks, Recreational Lands, Wildlife and Waterfowl Refuges, and Historic Sites; see 52 FR 31111, August 19, 1987. The Final Nationwide Section 4(f) Evaluation and Approval for Federally-Aided Highway Projects With Minor Involvements With Historic Sites was also published on August 19, 1987, and can be found at 52 FR 31118.

See also a notice regarding programmatic Section 4(f) evaluation and approval for FHWA projects that necessitate the use of historic bridges. This notice is entitled, “Historic Bridges; Programmatic Section 4(f) Evaluation and Approval” and was published in the Federal Register on August 22, 1983, at 48 FR 38135. Negative Declaration/Section 4(f) Statement for Independent Bikeway or Walkway Construction Projects, FHWA Memorandum, May 23, 1977.

3.  The National Environmental Policy Act of 1969 (NEPA) states that Environmental Impact Statements (EIS) are required for all major Federal actions (or those involving Federal monies) that could have a significant effect on the environment.

4.  Section 106 (16 U.S.C. 470f) states that “The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under Title II of this Act a reasonable opportunity to comment with regard to such undertaking.”

5.  The Secretary of the Interior issued Standards for Architectural and Engineering Documentation in the Federal Register on September 29, 1983. These standards are commonly known as the Historic American Building Survey/Historic American Engineering Record (HABS/HAER) Standards for the HABS/HAER program of the National Park Service. These Standards are available at the following URL: http://www.cr.nps.gov/​habshaer/​pubs/​sisgaed.pdf.