Introducing the New Section 4f Regulation 23 CFR 774

3. Agenda Why the new Section 4(f) Regulation 4(f) reminders and things worth noting Highlights of the Final Rule: Approvals Coordination Documentation Applicability Exceptions Update on the 6009 Implementation Study

4. Why a New 4(f) Regulation 1971 U.S. Supreme Court decision in Citizens to Preserve Overton Park v. Volpe articulated a high standard of compliance An avoidance alternative must be selected unless it causes: �uniquely different problems� or �costs or community disruption of extraordinary magnitude� Protection of parkland is of paramount importance The leading United States Supreme Court case, commonly known as Overton Park, (Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)), held that to find that an alternative (that avoids a 4(f) resource) is not "prudent" one must find that there are unique problems or unusual factors involved with the use of such alternatives. This means that the cost, social, economic and environmental impacts, and/or community disruption resulting from such alternatives reach extraordinary magnitudes. One can use a totality of these circumstances to establish that these unique problems, unusual factors or other impacts reach extraordinary magnitudes. FHWA has incorporated this decision into existing regulations found at 23 C.F.R. 771.135(a)(2). The leading United States Supreme Court case, commonly known as Overton Park, (Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)), held that to find that an alternative (that avoids a 4(f) resource) is not "prudent" one must find that there are unique problems or unusual factors involved with the use of such alternatives. This means that the cost, social, economic and environmental impacts, and/or community disruption resulting from such alternatives reach extraordinary magnitudes. One can use a totality of these circumstances to establish that these unique problems, unusual factors or other impacts reach extraordinary magnitudes. FHWA has incorporated this decision into existing regulations found at 23 C.F.R. 771.135(a)(2).

5. �[T]he few green havens that are public parks were not to be lost unless there were truly unusual factors present in a particular case or the cost or community disruption resulting from alternative routes reached extraordinary magnitudes.� Citizens to Preserve Overton Park v. Volpe 401 U.S. 402 (1971) 401 U.S. 402 (1971)

6. Courts reached varying conclusions on: How various factors may be considered, and What weight to assign the factors in deciding if avoidance is feasible and prudent Some courts took an avoidance at all cost position or �black box� approach Inconsistencies were addressed in SAFETEA-LU 6009(b) -- �Clarification of Existing Standards� Why a New 4(f) Regulation

7. Directed the Secretary to issue regulations that clarify the: Factors to be considered and the standards to be applied � � in determining the feasibility and prudence of avoidance alternatives, and Application of legal standards to a variety of transportation programs and projects SAFETEA-LU Section 6009(b)

8. How the Rule was Developed Team Approach: FHWA and FTA - HQ Program Office and Legal Counsel Resource Center and Division Offices Office of the Secretary NPRM issued on July 27, 2006 Comment period closed September 25, 2006 37 responses received on the NPRM FHWA & FTA Washington Office assembled team that included Resource Center, Division Office, & Office of Secretary representatives Notice of Proposed Rulemaking (NPRM) issued in Federal Register on July 27, 2006 NPRM solicited comment on clarification of factors & standards, as well as on de minimis & other proposed changes Comment period closed September 25, 2006 FHWA & FTA Washington Office assembled team that included Resource Center, Division Office, & Office of Secretary representatives Notice of Proposed Rulemaking (NPRM) issued in Federal Register on July 27, 2006 NPRM solicited comment on clarification of factors & standards, as well as on de minimis & other proposed changes Comment period closed September 25, 2006

9. Summary of Comments State/regional transportation agencies Trade associations AASHTO, ACEC, etc. National/local advocacy groups National Trust, Nature Conservancy, RTC, NPRA, NRDC, ED, etc. Federal agencies (U.S. DOI & ACHP) One SHPO Private individuals 37 responses received on NPRM 17 by 20 state/regional transportation agencies 6 by trade associations (AASHTO, American Council of Engineering Companies, etc.) 9 by 11 national/local advocacy groups (National Trust for Historic Preservation, Nature Conservancy, Rails to Trails Conservancy, National Park & Recreation Association, NRDC, Environmental Defense, etc.) 2 from Federal agencies (U.S. DOI & ACHP) 1 from a SHPO 2 from private individuals37 responses received on NPRM 17 by 20 state/regional transportation agencies 6 by trade associations (AASHTO, American Council of Engineering Companies, etc.) 9 by 11 national/local advocacy groups (National Trust for Historic Preservation, Nature Conservancy, Rails to Trails Conservancy, National Park & Recreation Association, NRDC, Environmental Defense, etc.) 2 from Federal agencies (U.S. DOI & ACHP) 1 from a SHPO 2 from private individuals

10. Generally supportive Specificity and flexibility on various aspects of 4(f) Improve decisionmaking and expedite environmental review Protects Section 4(f) properties Some negative Inconsistent with SAFETEA-LU Confusing May cause more litigation Will not streamline, etc. NPRM Comments

11. All comments fully considered Responses included in the preamble to the Final Rule Coordination with ACHP, DOI and others Reviewed by OST, OMB, and others Final Rule published in the Federal Register on March 12, 2008 Effective April 11, 2008 How the Rule was Developed

12. Note Worthy Use is defined in 23 CFR 774.17 -- (1) When land is permanently incorporated into a transportation facility; or (2) When there is a temporary occupancy of land that is adverse in terms of the statute�s preservation purpose as determined by the criteria in 774.13(d); or (3) When there is a constructive use of a Section 4(f) property as determined by the criteria in 774.15

13. Constructive Use Added to 23 CFR 771 in 1991 and has withstood the test of time Minor changes in 23 CFR 774.15 Allows consideration of likely future conditions absent the project New example: noise impact on wildlife viewing Additional direction on when vibration and ecological intrusions are a constructive use

14. Historic Properties SHPO or THPO concurs in writing with Section 106 �no�historic properties affected� or �no adverse effect� Parks, Recreation Areas, Refuges Use after mitigation does not adversely affect activities, features, and attributes of 4(f) property De Minimis Impacts

15. Final rule preamble stresses the importance of the preservation purpose of statute Balancing of factors in least harm analysis� � preservation purpose must be given �proper weight� or �thumb on the scale� in favor of protecting the 4(f) properties Also Worth Noting

16. Reminders Section 6009 amended 49 U.S.C. 303 (all DOT agencies) and 23 U.S.C. 138 (FHWA) � to include de minimis impact approval 23 CFR 774 applies only to FHWA and FTA FAA and FRA may adopt or use the rule and any other FHWA/FTA guidance March 2005 Section 4(f) Policy Paper remains in effect If a conflict arises - the regulation rules 49 USC 303(c) Approval of Programs and Projects. -- Subject to subsection (d), the Secretary may approve a transportation program or project � � only if -- 1. there is no prudent and feasible alternative � 2. the program or project includes all possible planning to minimize harm � resulting from the use. (d) De Minimis Impacts. 49 USC 303(c) Approval of Programs and Projects. -- Subject to subsection (d), the Secretary may approve a transportation program or project � � only if -- 1. there is no prudent and feasible alternative � 2. the program or project includes all possible planning to minimize harm � resulting from the use. (d) De Minimis Impacts.

17. Reminders December 2005 De Minimis Impact Guidance remains in effect: Process and criteria for parks, recreation areas, refuges, and historic sites All NEPA classes of action Individual 4(f) property use not project use Impact after mitigation and/or enhancement Section 4(f) complete upon Division or Regional Administrator approval of the finding

18. 23 CFR 774 774.1 � Purpose [to implement Section 4(f)] 774.3 � Section 4(f) Approvals 774.5 � Coordination 774.7 � Documentation 774.9 � Timing 774.11 � Applicability 774.13 � Exceptions 774.15 � Constructive Use Determinations 774.17 � Definitions

19. 774.3 - Section 4(f) Approvals

20. De Minimis Impact Determinations No need for alternatives analysis No need to document all possible planning to minimize harm as a separate step You can mitigate down to a de minimis impact

22. Applying a Programmatic Evaluation Not available for FTA projects at this time A simpler and faster process than completing an individual Section 4(f) evaluation There are 5 programmatic evaluations: Independent bikeway and walkway projects Projects using historic bridges Projects with very minor uses of parks/historic sites Projects with a net benefit for 4(f) property Apply each programmatic on its own terms

23. Individual Section 4(f) Evaluations

24. Step One for Individual Evaluations Search for alternatives that avoid all 4(f) use but do not cause other severe problems of a magnitude that substantially outweigh the importance of protecting 4(f) property �Feasible� has the same meaning, but �prudent� has a new list of considerations Employ the terminology from the regulation The no-build alternative must be evaluated

25. �Feasible and Prudent Avoidance Alternative� Imprudence could based upon: Failure to meet purpose and need Unacceptable safety or operational problems Severe impacts to non-4(f) resources after reasonable mitigation Extraordinary additional cost Unique problems An accumulation of problems

26. Is the Avoidance Alternative Prudent?

27. Step One for Individual Evaluations Of note for the prudence test: Must consider the views of officials with jurisdiction Can consider impacts to non-4(f) resources, but must assume reasonable mitigation The drawbacks of avoidance are cumulative It�s a sliding scale

28. The Least Overall Harm Determination: When applicable, apply this test in between steps one and two It�s an additional balancing test that is weighted differently than the feasible and prudent test The determination weighs the drawbacks and benefits of the �bad� alternatives against each other to select an alternative The harm to 4(f) properties is weighed more heavily than other drawbacks Step One for Individual Evaluations

29. The Least Overall Harm Factors Ability to mitigate the adverse impacts to each 4(f) property Relative severity of harm, after reasonable mitigation, to the 4(f) qualities Relative significance of each 4(f) property Views of officials with jurisdiction Degree that purpose and need is met Magnitude of adverse impacts, after reasonable mitigation, to non-4(f) resources Substantial differences in cost

30. Step Two for Individual Evaluations All Possible Planning to Minimize Harm: Newly defined, located in 774.17 For the selected alternative only �All reasonable measures identified � must be included in the project.� No need to look at alternatives Must consult with the officials with jurisdiction Take credit for all of your work

31. For Projects Already in Development: Grace period over � 23 CFR 774 is in effect You will need to add documentation Pay special attention to: Feasible and Prudent Avoidance Alternatives Least overall harm All possible planning to minimize harm FHWA and FTA field and HQ offices available for assistance

32. Suggested Procedure

33. 774.3 � Section 4(f) Approvals Wrap-Up You should be seeing fewer individual Section 4(f) evaluations in the future Not needed if de minimis impacts Not needed if a programmatic applies The broken record on the administrative record: it�s your key to winning in court when your 4(f) approval is challenged

34. 774.5 � Coordination For Individual Evaluations: 45-day minimum comment period retained May assume lack of objection if comments not received within 15 days of deadline Coordinate with officials with jurisdiction (defined in 23 CFR 774.17 and on a later slide) and DOI (and HUD & DOA, as appropriate)

35. For Historic De Minimis Determinations: SHPO or THPO (and ACHP if participating in Section 106 consultation) must concur in writing with finding of �no historic properties affected� or �no adverse effect� Agency informs these officials of intent to make de minimis impact finding based on their written concurrence Consider views of consulting parties 774.5 � Coordination

36. For Park/Recreation Area/Refuge De Minimis Determinations: Public notice and opportunity for review & comment on the project effects to property Agency informs officials with jurisdiction of intent to make de minimis impact finding These officials concur in writing that property features, activities, or attributes are not adversely affected (after public opportunity for review & comment) 774.5 � Coordination

37. Application of programmatic evaluation: Coordinate as specified in programmatic When Federal encumbrance (lien or claim) exists: Determine applicable agency�s position on project effect Determine if other Federal requirements exist 774.5 � Coordination

38. Officials with Jurisdiction For Historic Sites not on Tribal Lands: State Historic Preservation Officer (SHPO) For Historic Sites on Tribal Lands: Tribal Historic Preservation Officer (THPO), or � SHPO (if THPO has not assumed SHPO responsibilities) and designated tribal representative For Parks/Recreation/Refuges: Officials of the agency/agencies that own or administer the property and are empowered to represent the agency concerning the property

39. Officials with Jurisdiction For Historic Sites (including de minimis): Advisory Council on Historic Preservation (when involved in consultation) For National Historic Landmarks: National Park Service For Wild and Scenic Rivers: Officials of the Federal agency (or agencies) that own or administer applicable portions Include State officials when State-administered

40. 774.7 � Documentation For Individual Evaluations: Why avoidance is not feasible and prudent All possible planning to minimize harm Basis for determining least overall harm if no feasible and prudent avoidance alternative exists Requirement for legal sufficiency review remains

41. 774.7 � Documentation For De Minimis Determinations: Basis for deciding impacts qualify as de minimis after considering avoidance, minimization, mitigation, or enhancement measures Coordination required in 774.5(b)

42. For Tiered EISs: 1st Tier � Preliminary Section 4(f) approval regarding whether impacts are de minimis or whether avoidance is feasible and prudent 2nd Tier � Finalize Section 4(f) approval 774.7 � Documentation

43. 774.9 � Timing Requirements for separate Section 4(f) approvals following CE, FONSI, or ROD Changes or circumstances resulting in new or substantially increased Section 4(f) uses or degree of impact Substantial reduction in minimization measures Section 4(f) is newly found to apply to a property Will not necessarily require new or supplemental NEPA document (23 CFR 771.130) Discovery of archeological site during construction Review process may be expedited

44. 774.11 � Applicability Traditional concepts: significance, multiple use concept, historic and archeological sites, and joint planning scenarios New to the regulation: Exemption of Interstate system Wild & Scenic rivers Reserved transportation right-of-way that temporarily functions as a Section 4(f) property

45. Certain historic transportation facilities Archeological sites valuable for data recovery Certain late designations Certain temporary occupancies Federal Lands� park roads & parkways Certain trails, paths, bikeways, sidewalks Certain transportation enhancement and mitigation projects 774.13 � Exceptions

46. Implementation Study 6009(c) Evaluation Studies for Congress requires looking at Section 4(f) changes for: Efficiencies that may result Post-construction effectiveness of impact mitigation and avoidance commitments Quantity of projects with impacts that are considered de minimis, including � � location, size, and cost of the projects

47. 6009(c) requires independent review by TRB committee of the study plan, methodology, and associated conclusions Two reports to Congress, DOI and ACHP, and make available to the public No sooner than August 10, 2008 No later than March 1, 2010 Implementation Study

48. Questions?