[Federal Register Volume 67, Number 243 (Wednesday, December 18, 2002)]
[Notices]
[Pages 77551-77555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31888]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
Federal Transit Administration
[FHWA Docket No. FHWA-2002-13290]
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.
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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
[[Page 77552]]
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, (202) 366-2058; Ms.
April Marchese, Office of the Chief Counsel, HCC-30 (202) 366-0791.
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, (202) 366-0096; Mr. Scott Biehl, Office of the Chief
Counsel, TCC-30, (202) 366-0952. 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 (202)
512-1661 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.
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\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.
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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.
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\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.
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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
[[Page 77553]]
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\
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\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.
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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.
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\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.''
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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.
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\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.
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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)
[[Page 77554]]
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.
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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.
[FR Doc. 02-31888 Filed 12-17-02; 8:45 am]
BILLING CODE 4910-22-P