[Federal Register: July 27, 2006 (Volume 71, Number 144)]
[Proposed Rules]
[Page 42611-42622]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27jy06-14]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
23 CFR Parts 771 and 774
Federal Transit Administration
49 CFR Part 622
[Docket No. FHWA-05-22884]
RIN 2125-AF14 and 2132-AA83
Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and
Historic Sites
AGENCIES: Federal Highway Administration (FHWA) and Federal Transit
Administration (FTA), DOT.
ACTION: Notice of proposed rulemaking (NPRM); request for comments.
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SUMMARY: This proposal would modify the procedures for granting
approvals under 23 U.S.C. 138 and 49 U.S.C. 303 (hereafter referred to
as ``Section 4(f)'' \1\) in several ways. First, this proposal
clarifies the factors to be considered and the standards to be applied
when determining if an alternative for avoiding the use of Section 4(f)
property is feasible and prudent. Second, this NPRM proposes to clarify
the factors to be considered when selecting a project alternative in
situations where all alternatives use Section 4(f) property and no
feasible and prudent avoidance alternative exists. Third, this proposal
would establish procedures for determining that the use of a Section
4(f) property has de minimis impacts. Fourth, the proposal updates the
regulation to recognize statutory and common-sense exceptions for uses
that advance Section 4(f)'s preservationist goals; as well as the
option of conducting certain Section 4(f) evaluations on a programmatic
basis. Fifth, this proposal would move the Section 4(f) regulations out
of the agencies' National Environmental Policy Act regulations (23 CFR
part 771, ``Environmental Impact and Related Procedures''), into a
separate part of 23 CFR, with a reorganized structure that is easier to
use.
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\1\ Section 4(f) of the Department of Transportation Act of 1966
was technically repealed in 1983 when it was codified without
substantive change at 49 U.S.C. 303. A provision with the same
meaning is found at 23 U.S.C. 138 and applies only to FHWA actions.
This regulation continues to refer to Section 4(f) as such because
it would create needless confusion to do otherwise; the policies
Section 4(f) engendered are widely referred to as ``Section 4(f)''
matters.
DATES: Comments must be received on or before September 25, 2006. Late-
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filed comments will be considered to the extent practicable.
ADDRESSES: Written Comments: Submit written comments to the Dockets
Management System, U.S. Department of Transportation, Room PL-401, 400
Seventh Street, SW., Washington, DC 20590-0001.
Comments. You may submit comments identified by the docket number
(FHWA-05-22884) by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
Web site: http://dms.dot.gov. Follow the instructions for
submitting comments on the DOT electronic docket site.
Fax: 1-202-493-2478.
Mail: Docket Management System; U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590-0001.
Hand Delivery: To the Docket Management System; Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW.,
Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except
Federal holidays.
Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
notice. For detailed instructions on submitting comments and additional
information on the rulemaking process, see the Public Participation
heading of the Supplementary Information section of this document. Note
that all comments received will be posted without change to http://dms.dot.gov
including any personal information provided. Please see the
Privacy Act heading under Supplementary Information.
Docket: For access to the docket to read background documents or
comments received, go to http://dms.dot.gov at any time or to the
Docket Management System (see ADDRESSES).
FOR FURTHER INFORMATION CONTACT: For FHWA, Diane Mobley, Office of the
[[Page 42612]]
Chief Counsel, 202-366-1372, or Lamar Smith, Office of Project
Development and Environmental Review, 202-366-8994. For FTA, Joseph
Ossi, Office of Planning and Environment, 202-366-1613, or Christopher
VanWyk, Office of Chief Counsel, 202-366-1733. Both agencies are
located at 400 Seventh Street, SW., Washington, DC 20590-0001. Office
hours are from 7:45 a.m. to 4:15 p.m. for FHWA, and 9 a.m. to 5:30 p.m.
for FTA, Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Background
SAFETEA-LU. Section 6009 of the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU)
(Pub. L. 109-59, Aug. 10, 2005, 119 Stat. 1144) is the impetus for this
rulemaking action. Section 6009(b) directs the Secretary of
Transportation (Secretary) to promulgate regulations within 1 year
(i.e., by August 10, 2006). The rulemaking must clarify ``the factors
to be considered and the standards to be applied in determining the
prudence and feasibility of alternatives, to using Section 4(f)
properties for transportation projects. Section 4(f) properties are
significant parks, recreation areas, refuges, and historic sites
described in section 4(f) of the Department of Transportation Act of
1966, (Pub. L. 89-670, 80 Stat. 931) currently codified at 23 U.S.C.
138 and 49 U.S.C. 303. A joint FHWA-FTA regulation implementing Section
4(f) is currently located at 23 CFR 771.135. The regulation does not
currently address what factors should be considered and what standards
should be applied when determining if an avoidance alternative is
feasible and prudent. This rulemaking proposes to establish those
factors and standards as directed by SAFETEA-LU.
The rulemaking also includes a new, alternative method of
compliance for uses with de minimis impacts to a Section 4(f) property.
Prior to SAFETEA-LU, Section 4(f) prohibited all uses of Section 4(f)
properties for transportation projects unless the agency determined
there was no feasible and prudent avoidance alternative and all
possible planning to minimize harm had occurred. Section 6009(a) of
SAFETEA-LU amended the statute such that uses with de minimis impacts
can be approved without an analysis of avoidance alternatives. This
section does not need regulations to become effective. However, we
propose to incorporate the procedures implementing this provision into
this rule. These procedures reflect the statutory provisions, and
guidance issued on December 13, 2005 and provided to the public via
FHWA's Web site at http://www.fhwa.dot.gov/hep/legreg.htm.
History. Section 4(f) was enacted during the peak of the Interstate
Highway construction program. At that time, many proposed Interstate
Highways threatened major urban parks and historic districts. Much of
the early case law on Section 4(f) was decided prior to the
establishment of implementing regulations on cases involving these
major new highways, prompting some courts to issue strict
interpretations of Section 4(f). This began with the Supreme Court's
seminal decision in Citizens to Preserve Overton Park v. Volpe, 401
U.S. 402 (1971) (``Overton Park'').
In Overton Park, the Supreme Court considered a challenge to the
Secretary's approval for the construction of a six-lane highway, mostly
at-grade through Memphis, Tennessee's centerpiece, inner-city Overton
Park. Much of the planning for the highway location occurred prior to
the enactment of Section 4(f), and the reasons for FHWA's rejection of
avoidance alternatives were not documented. The Court remanded the case
to the district court on other grounds to answer several questions that
could not be determined from the sparse administrative record. However,
in its opinion, the Court articulated a high standard for compliance
with Section 4(f), stating that Congress intended the protection of
parkland to be of paramount importance. The Court further opined that
an avoidance alternative to using Section 4(f) property must always be
selected unless it would present ``uniquely difficult problems'' or
require ``costs or community disruption of extraordinary magnitude.''
Id., at 411-12, 416. The Court remanded the case back to the district
court. This very stringent reading of Section 4(f) has guided courts
ever since in applying Section 4(f) to specific decisions made by
transportation agencies.
In the years following Overton Park, courts around the country
applied the decision differently to essentially similar situations,
reaching different conclusions as to how various factors may be
considered and what weight may be attached to those factors when the
agency determines if an avoidance alternative is or is not feasible and
prudent. Some court decisions produced relatively strict and
inflexible, almost mechanical, interpretations of Section 4(f) and
resulted in an even more stringent interpretation of what is feasible
and prudent than did Overton Park. Those decisions severely restricted
the agencies' ability to make tradeoffs among societally important
resources and forced the selection of alternatives that had other
significant adverse economic, social, and environmental costs, even if
the impact to the Section 4(f) property was minor or the property
itself relatively unimportant. One early decision, for example, held
that any harm to 4(f) property, no matter how small, would trigger the
application of Section 4(f). Louisiana Environmental Society v.
Coleman, 537 F.2d 79 (5th Cir. 1976). Further, an avoidance alternative
with significant residential displacements (more than 1500 homes taken)
could not be rejected as imprudent, regardless of the scale or degree
of corresponding harm to the Section 4(f) property. Id.
Other later cases struggled to apply Overton Park to more factually
complex projects, such as projects with multiple Section 4(f)
properties and for which no total avoidance alternative is possible. At
the same time, the highway program evolved from an emphasis on
constructing the vast Interstate System to today's primary concerns of
system preservation, congestion relief, and modernization of existing
facilities. Regulations were implemented for Section 4(f) establishing
a process for making and documenting decisions, including documenting
the reasons for rejecting avoidance alternatives. See 23 CFR 771.135,
52 FR 32660, Aug. 28, 1987.
Planning rules evolved to require early attention to avoiding major
Section 4(f) properties. Each State is now required to have a continual
process for evaluating and updating its long range plan for
transportation improvements. One element of the planning process is to
``consider, analyze as appropriate and reflect in the planning process
products * * * access to * * * national parks, recreation and scenic
areas, monuments and historic sites.'' 23 CFR 450.208(a)(4), 58 FR
58064, Oct. 28, 1993.\2\ Innumerable new mitigation options and
techniques have also been developed since Section 4(f) was enacted,
including context sensitive design principles, new methods for
mitigating noise and reducing adverse effects to historic properties,
and new stormwater treatment options. The result of these developments
is that the rigid interpretations from the early court decisions are
often an awkward fit with the consequences to the Section 4(f)
[[Page 42613]]
property. In most instances, those consequences are not as extreme as
what was considered in Overton Park and other early cases.
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\2\ The statewide transportation planning process was also
amended by SAFETEA-LU (sections 3006 and 6001); the agencies will
likely implement these changes in a separate rulemaking.
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Over time, some courts reconciled these changes by interpreting the
language of Section 4(f) and Overton Park in a way that balances the
harm to the property with impacts to other resources. While those
courts continued to insist on a heightened standard for protecting
Section 4(f) sites, they did allow for consideration of mitigation
opportunities, harm to other important resources, and the magnitude of
impact to the Section 4(f) property. This balancing approach became the
new case law standard in several areas of the country. An example of
the balancing approach is a 1993 case involving the construction of a
replacement road for one that had formerly traversed the top of a dam.
The proposed road replacement alternative would travel through a 347
acre park, taking a total of 5.7 acres of the park. The FHWA found that
there was no feasible and prudent alternative to this alignment.
Committee to Preserve Boomer Lake Park v. Skinner, 4 F.3d 1543 (10th
Cir. 1993).
In its review of FHWA's decision, the Boomer Lake court described
the term ``prudent'' as involving a ``common sense balancing of
practical concerns,'' although cautioning that the problems encountered
by proposed avoidance alternatives must be ``truly unusual'' or reach
``extraordinary magnitude'' before parkland can be taken. The court
found that the avoidance alternative had several problems when compared
to the proposed route, including higher road user costs, substandard
curves raising safety concerns, more traffic congestion due to failure
to accommodate east-west traffic, more relocations, more intersection
modifications, and higher construction costs. Additionally, the court
found that the proposed alignment had beneficial impacts by providing
better fishing access, improving water quality, and connecting the east
and west sides of the park. The court concluded that, although none of
these factors alone would be a basis for rejecting the avoidance
alternative, their cumulative weight was sufficient to support FHWA's
decision. Id.
General Discussion of the Proposed Rule
Feasible and Prudent Test. As directed by Congress, this NPRM
proposes to clarify the factors to be considered and the standards to
be applied in determining the feasibility and prudence of alternatives
avoiding the use of Section 4(f) properties by transportation projects.
In the SAFETEA-LU conference report, Congress noted that ``the
fundamental legal standard contained in the Overton Park decision for
evaluating the prudence and feasibility of avoidance alternatives will
remain as the legal authority for these regulations, however, the
Secretary will be able to provide more detailed guidance on applying
these standards on a case-by-case basis.'' H.R. Rep. No. 109-203, at
pp. 1057-1058 (2005).
This NPRM proposes a standard that is consistent with the
fundamental legal standard of Overton Park. It would recognize the
importance of protecting Section 4(f) properties and, when the impacts
are more than de minimis, it would require the consideration and
documentation of the severe problems associated with avoidance
alternatives before the use of a Section 4(f) property could be
approved. The agencies intend to adopt the reasoning of several U.S.
Circuit Courts of Appeal that safety concerns, adverse impacts to non-
Section 4(f) resources such as communities and natural environmental
resources, and the costs of constructing and operating an alternative
must be compared to the harm that would result to the features,
activities, and attributes that qualify the Section 4(f) property for
protection.
This balancing must be done with a ``thumb on the scale'' in favor
of the Section 4(f) property because of the paramount importance
Section 4(f) places on those properties. Thus, to support a finding
that an avoidance alternative is not feasible and prudent, the problems
associated with avoiding the Section 4(f) property would always have to
be severe in nature and not easily mitigated. However, a sliding scale
approach to the magnitude of harm is proposed, because it is
appropriate to consider the value of the individual Section 4(f)
property in context. For example, some historic sites are significant
beyond doubt and are permanently protected. Such properties should be
protected absent extraordinary problems with the avoidance
alternatives. Other historic sites of less significance, or which are
likely to be legally destroyed or developed by their owner in the near
future, may be outweighed by relatively less severe problems with the
avoidance alternatives.
A number of examples exist of a strict and inflexible
interpretation of Section 4(f) causing the re-routing of a proposed
transportation project at great cost in terms of money and other
environmental impacts, only to see the historic property torn down soon
after construction. The holistic approach proposed will provide the
flexibility needed to make wise transportation decisions while still
protecting Section 4(f) properties as well as other important
resources. When Section 4(f) is applied without regard to other
resources or without flexibility, it undermines support for Section
4(f).
This proposal does not require a finding that every factor
mitigating against an avoidance alternative is ``unique,'' despite that
term appearing several times in Overton Park's dicta. The Seventh
Circuit has explained that the Overton Park Court ``was being emphatic,
not substituting `unique' for `prudent' in the text of Sec. 4(f).''
Eagle Foundation v. Dole, 813 F.2d 798, 804-05 (7th Cir. 1987). We
agree that severe difficulties may justify the use of a Section 4(f)
property even if the type of problem is not uncommonly encountered when
constructing a transportation project. Therefore, we do not propose to
require a finding in every instance that the problem rendering an
avoidance alternative not feasible and prudent is a ``unique'' problem.
Rather, in determining whether there are ``extraordinary
circumstances'' that would lead to a conclusion that it is not feasible
and prudent to avoid a Section 4(f) property, it is appropriate to
consider the situation as a whole, taking into account the cumulative
effects of avoiding the Section 4(f) property and the net harm to the
property after incorporating available mitigation.
Standard for De Minimis Impacts. Section 6009(a) of SAFETEA-LU
modified Section 4(f) to allow the agencies to approve a transportation
use of Section 4(f) property with ``de minimis'' impacts, without an
alternatives analysis and determination that no feasible and prudent
avoidance alternative exists. The FHWA and the FTA issued guidance for
implementing the de minimis impact provision on December 13, 2005. A
copy of the guidance was placed in the docket for this NPRM and it is
also available for review online at http://www.fhwa.dot.gov/hep/legreg.htm.
This rulemaking includes a definition of de minimis
impacts, and also proposes to include general standards and procedures
for making findings of de minimis impacts.
Establishment of a New Part 774. This NPRM proposes to separate
Section 4(f) from the agencies' National Environmental Policy Act
(NEPA) regulations in 23 CFR 771. Years of applying Section 4(f) to new
and unprecedented situations have led to a history of case experience
that is reflected in the regulation. As a result,
[[Page 42614]]
the rules governing Section 4(f) have grown in length and complexity to
the point that they warrant their own part in the CFR for ease of
reference and citation. The new part was reorganized to make it more
user-friendly, and consistent terminology was adopted where the current
regulation uses inconsistent terms with the same meaning. For example,
Section 4(f) properties would no longer be called Section 4(f)
``resources'' in some sections.
It should be noted that the proposed separation of the Section 4(f)
and NEPA regulations is not intended to fragment compliance with
Section 4(f) and NEPA. Our intent is to continue a fully integrated
implementation under the unified and coordinated process provided by
the NEPA procedures for compliance with the requirements of all
applicable environmental laws. Placing the two regulations in close
proximity within the Code of Federal Regulations, with cross-references
between them, is intended to communicate the continued integration of
Section 4(f) approvals with the NEPA process.
Section-by-Section Analysis
The following segment of this NPRM provides a section-by-section
analysis of the proposed changes.
Title 23
Section 771.127 Record of Decision
Paragraph (a) of this section would be revised to refer to part 774
in place of 771.135.
Section 771.135 Section 4(f) (49 U.S.C. 303)
This section would be deleted in its entirety.
Part 774--Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and
Historic Sites (Section 4(f))
We propose to move the current Section 4(f) regulations from the
National Environmental Policy Act regulations (23 CFR part 771) into a
new 23 CFR part 774. The title of the part is proposed to be revised
from simply ``Section 4(f)'' to incorporate the descriptive language
from the title of section 6009 of SAFETEA-LU; ``Parks, Recreation
Areas, Wildlife and Waterfowl Refuges, and Historic Sites (Section
4(f)).'' The authority is revised from part 771 to include only the
citations relevant to Section 4(f) and a reference to SAFETEA-LU was
added.
While the agencies propose to move the current Section 4(f)
regulation from 23 CFR part 771 to 23 CFR part 774 without significant
substantive changes other than those noted in this preamble, the
existing provisions have been reorganized to make the requirements
easier to understand. The proposed structure begins with the general
framework of the process of Section 4(f) approvals, followed by
coordination, format, and timing requirements for making approvals, and
concluding with the many specific requirements applicable to Section
4(f) decisionmaking. Since a few of the definitions were quite lengthy
and complex, the agencies propose to include the definitions section at
the end, rather than the more typical location at the beginning, which
the agencies believe would make the regulations easier to understand.
Since most of the practitioners to whom this regulation would be
directed are responsible for analyses under dozens of different
environmental laws, the simplified structure will facilitate
compliance. The proposed structure is:
Sec.
774.1 Purpose.
774.3 Section 4(f) approvals.
774.5 Coordination.
774.7 Format.
774.9 Timing.
774.11 Applicability.
774.13 Exceptions.
774.15 Constructive use determinations.
774.17 Definitions.
For ease of reference, a distribution table is provided tracking
the current sections and proposed sections:
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Current section in part 771 Proposed section
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None.................................... 774.1 Purpose.
771.135(a)(1)........................... 774.3 Section 4(f) approvals.
771.135(i) [in part].................... 774.5 Coordination.
771.135(a)(2), (i) [in part], (j), (k), 774.7 Format.
and (o).
771.135(b) [in part], (g)(1), (l), (m) 774.9 Timing.
and (n).
771.135(b) [in part], (c), (d), (e), 774.11 Applicability.
(g)(1) and p(5)(v).
771.135(f), (g)(2), (h), (p)(5) [in 774.13 Exceptions.
part], and (p)(7).
771.135(p)(3), (p)(4) and (p)(6)........ 774.15 Constructive use
determinations.
771.107(d) and (a)(2), and 771.135(p)(1) 774.17 Definitions.
and (p)(2).
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Section 774.1 Purpose
This section is new. It was added to clarify the purpose of the
regulations, which is to implement 49 U.S.C. 303 and 23 U.S.C. 138
(Section 4(f)).
Section 774.3 Section 4(f) Approvals
This section describes the general requirements for approving the
use of Section 4(f) property. Current section 771.135(a)(1) provided
the basis for the part of this section concerning traditional Section
4(f) approvals. The new provision in section 6009(a) of SAFETEA-LU for
making de minimis impact determinations in lieu of the traditional
analysis is implemented with language that largely follows the statute.
There are cross-references to the definitions for ``use,'' ``feasible
and prudent,'' and ``all possible planning,'' and to the sections of
the regulation governing the coordination, format, and timing of
approvals as a road map for the practitioner.
This section would also provide new regulatory direction for how to
analyze and select an alternative when all feasible and prudent project
alternatives use some Section 4(f) property, with a list of factors
that should be considered. The factors were drawn from case law
experience and FHWA's Section 4(f) Policy Paper.\3\ It should be kept
in mind that the weight given each factor would necessarily depend on
the facts in each particular case, and not every factor would be
relevant to every decision. Our intent is to provide the tools that
will allow wise transportation decisions that minimize overall harm in
these situations, while still providing the special protection afforded
by Section 4(f) by requiring the problems to be severe and not easily
mitigated. We encourage commenters to provide actual or hypothetical
project examples of how these factors can help arrive at a better
overall decision.
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\3\ The Section 4(f) Policy Paper, issued March 1, 2005, is
available for review online at http://environment.fhwa.dot.gov/projdev/4fpolicy.htm.
A copy was also placed in the docket for this
rulemaking.
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[[Page 42615]]
Section 774.5 Coordination
This section would set forth the coordination required prior to
making Section 4(f) approvals. With respect to the coordination for
traditional Section 4(f) evaluations, part of current section
771.135(i) was included without significant substantive change. For de
minimis impact determinations, section 6009(a) of SAFETEA-LU includes
several specific coordination requirements, and those were included as
well.
Section 774.7 Format
This section would contain the requirements related to the format
for the various types of Section 4(f) analyses and approvals. Current
sections 771.135(j), (k), (o), and part of (i) were the basis for this
section, without significant substantive change except as discussed
below. New text was added describing the format for making the de
minimis impact determinations and for making approvals when all
feasible and prudent project alternatives use some Section 4(f)
property. The section also provides a clear regulatory basis for
programmatic Section 4(f) evaluations and approvals, a practice which
the FHWA uses from time to time,\4\ and which FTA may also use in the
future. Finally, we propose to clarify that a preliminary Section 4(f)
determination made as part of the Administration's approval of a first-
tier Environmental Impact Statement (EIS) is final with respect to
those issues addressed in the preliminary determination and are not to
be revisited after a final section 4(f) approval is granted during the
second-tier NEPA study, which may or may not be an EIS.
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\4\ FHWA has issued the following five programmatic Section 4(f)
Evaluations: (1) 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, 70 Fed. Reg.
20618 (April 20, 2005); (2) 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, 52 Fed. Reg. 31111 (August 19, 1987); (3) Final
Nationwide Section 4(f) Evaluation and Approval for Federally-Aided
Highway Projects With Minor Involvements With Historic Sites, 52
Fed. Reg. 31118 (August 19, 1987); (4) Department of Transportation,
Federal Highway Administration-Programmatic Section 4(f) Evaluation
and Approval for FHWA Projects that Necessitate the Use of Historic
Bridges, 48 Fed. Reg. 38135 (August 22, 1983); and (5) Negative
Declaration/Section 4(f) Statement for Independent Bikeway or
Walkway Construction Projects, FHWA Memorandum, May 23, 1977, can be
found at http://www.environment.fhwa.dot.gov/projdev/4fbikeways.htm.
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Section 774.9 Timing
This section would contain the requirements for the timing of
Section 4(f) approvals. Current sections 771.135(l), and part of (b),
and (g)(1) were incorporated into this section without significant
substantive change. Current sections 771.135(m) and (n) were simplified
and incorporated.
Section 774.11 Applicability
This section answers many common questions about when Section 4(f)
is applicable (additional guidance for certain resource situations can
be found in FHWA's Section 4(f) Policy Paper). The section incorporates
current sections 771.135(c), (d), (e), and parts of (b) and (g)(1)
without significant substantive change. New text was added clarifying
that when recreational activities are permitted on rights-of-way
formally reserved for future transportation use, Section 4(f) does not
apply to the property. The purpose of this clarification is to
encourage State and local transportation agencies to permit public
recreation on reserved transportation corridors. Current text from
section 771.135(p)(5)(v), regarding constructive use of parks adjacent
to reserved corridors where the transportation use and the park were
jointly planned, was also incorporated here without significant
substantive change.
Section 774.13 Exceptions
This section would list exceptions to Section 4(f). Many of these
situations are exceptions because the application of Section 4(f) would
be contrary to the preservationist goals of the statute. Others are
exceptions created by Congress in various statutes. Five of the
exceptions, sections 771.135(f), (g)(2), (h), part of (p)(5), and
(p)(7), are incorporated from the current regulations without
significant substantive change. Five of the exceptions are new: (1)
Park road and parkway projects constructed under the Federal Lands
Highway Program; \5\ (2) trail projects under the Recreational Trails
Program; \6\ (3) enhancement and mitigation projects solely for the
purpose of enhancing the activities, features, or attributes of a
Section 4(f) property; \7\ (4) alternative transportation projects in
parks and public lands; \8\ and (5) the Interstate System and certain
elements of the Interstate System.\9\
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\5\ 23 U.S.C. 204. Projects under this program are expressly
excepted from Section 4(f) requirements within the Section 4(f)
statute itself.
\6\ These projects are expressly excepted from Section 4(f)
requirements by 23 U.S.C. 206(h)(2).
\7\ This exception is proposed as a common-sense addition to the
regulations.
\8\ This is a new transit program that was created by Congress
in section 3021 of SAFETEA-LU ``to enhance the protection of
national parks and public lands and increase the enjoyment of those
visiting the parks and public lands.'' It is proposed as a common-
sense addition to the regulations.
\9\ These projects were expressly excepted from Section 4(f)
requirements by section 6007 of SAFETEA-LU.
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Section 774.15 Constructive Use Determinations
This section would set forth the standards and procedures for
deciding if a proximity impact caused by a project would be so severe
as to constitute a use under Section 4(f) where there is no physical
taking of property. This section incorporates current sections
771.135(p)(3), (p)(4), and (p)(6) without significant substantive
change. It also includes two new examples of constructive use of
wildlife and waterfowl refuges.
Section 774.17 Definitions
This section incorporates the definitions contained in 23 U.S.C.
101(a), and also provides definitions for: Administration; All Possible
Planning; Applicant; Constructive Use; De Minimis Impact; Environmental
Assessment (EA); Environmental Impact Statement (EIS); Feasible and
Prudent Alternative; Finding of No Significant Impact (FONSI);
Official(s) with Jurisdiction; Record of Decision; and Use. The
definitions of ``use'' and ``constructive use'' were incorporated from
current sections 771.135(p)(1) and (2) without significant substantive
change. The definition of ``Administration'' was incorporated from
section 771.107(d) without substantive change. The other definitions
are new.
The definition of ``Feasible and Prudent Alternative'' was required
by section 6009(b) of SAFETEA-LU. The proposal includes the factors to
consider when deciding if an avoidance alternative is a feasible and
prudent alternative to the use of a Section 4(f) property. The list of
factors would promote consistent decisionmaking nationwide. The factors
are based on case law and the agencies' experience assessing the
environmental impacts of transportation projects. An avoidance
alternative may be found not feasible and prudent based on a single
factor or a combination of factors; however, we intend that these
factors would only render the alternative imprudent if the problem is
severe in nature and not easily mitigated.
The feasible and prudent determination should include a comparison
of the problems associated
[[Page 42616]]
with the avoidance alternative and the magnitude of harm that would
befall the activities, features, and attributes qualifying the property
for protection under Section 4(f). As the magnitude of harm to the
Section 4(f) property increases, the severity of the problems that
would have to exist before the alternative could be deemed not feasible
and prudent would also increase. For example, where the avoidance
alternative being evaluated would cause only minor harm to an important
feature of a Section 4(f) property, but would divide an established,
cohesive community and relocate a substantial percent of the homes, the
community impact might be considered severe enough to render the
alternative not feasible and prudent. However, if the alternative would
devastate the Section 4(f) property, the alternative might be deemed
feasible and prudent despite the community impact. These will not
always be easy decisions on which all parties will agree, and it will
be crucial in such cases that the agencies thoroughly explain the
reasons for their decisions.
Title 49
Section 622.101 Cross-Reference to Procedures
This section, which contains FTA's cross-reference to 23 CFR part
771 for FTA's NEPA regulations, would be revised to include a cross-
reference to the new 23 CFR part 774, which would contain the proposed
joint FHWA/FTA Section 4(f) regulations.
Rulemaking Analyses and Notices
All comments received on or before the close of business on the
comment closing date indicated above will be considered and will be
available for examination in the docket at the above address. Comments
received after the comment closing date will be filed in the docket and
will be considered to the extent practicable. In addition to late
comments, the FHWA and the FTA will also continue to file relevant
information in the docket as it becomes available after the comment
period closing date, and interested persons should continue to examine
the docket for new material. A final rule may be published at any time
after close of the comment period.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
We have determined preliminarily that this action would be a
significant regulatory action within the meaning of Executive Order
12866 and would be significant within the meaning of Department of
Transportation regulatory policies and procedures because of
substantial congressional, State and local government, and public
interest. Those interests include the receipt of Federal financial
support for transportation investments, appropriate compliance with
statutory requirements, and balancing of transportation mobility and
environmental goals. We anticipate that the direct economic impact of
this rulemaking would be minimal. The clarification of current
regulatory requirements is mandated in SAFETEA-LU. We also consider
this proposal a means to clarify and reorganize the existing regulatory
requirements. These proposed changes would not adversely affect, in a
material way, any sector of the economy. In addition, these changes
would not interfere with any action taken or planned by another agency
and would not materially alter the budgetary impact of any
entitlements, grants, user fees, or loan programs.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. 601-612) the agencies have evaluated the effects of this
proposed action on small entities and have determined that the proposed
action would not have a significant economic impact on a substantial
number of small entities. This proposed action does not include any new
regulatory requirements; it simply clarifies and reorganizes existing
requirements. For this reason, the FHWA and the FTA certify that this
action would not have a significant economic impact on a substantial
number of small entities.
Unfunded Mandates Reform Act of 1995
This proposed rule would not impose unfunded mandates as defined by
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22,
1995, 109 Stat. 48). This proposed rule will not result in the
expenditure by State, local, and tribal governments, in the aggregate,
or by the private sector, of $120.7 million or more in any one year (2
U.S.C. 1532). Further, in compliance with the Unfunded Mandates Reform
Act of 1995, the agencies will evaluate any regulatory action that
might be proposed in subsequent stages of the proceeding to assess the
affects on State, local, and tribal governments and the private sector.
Executive Order 13132 (Federalism)
This proposed action has been analyzed in accordance with the
principles and criteria contained in Executive Order 13132, and the
FHWA and the FTA have determined that this proposed action would not
have sufficient federalism implications to warrant the preparation of a
federalism assessment. The agencies have also determined that this
proposed action would not preempt any State law or State regulation or
affect the States' ability to discharge traditional State governmental
functions.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.205,
Highway Planning and Construction; 20.500 et seq., Federal Transit
Capital Investment Grants. The regulations implementing Executive Order
12372 regarding intergovernmental consultation on Federal programs and
activities apply to these programs and were carried out in the
development of this rule. The FHWA and FTA solicit comments on this
issue.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et
seq.), Federal agencies must obtain approval from the Office of
Management and Budget (OMB) for each collection of information they
conduct, sponsor, or require through regulations. The FHWA and the FTA
have determined that this proposal does not contain new collection of
information requirements for the purposes of the PRA.
The information collected in Section 4(f) evaluations is not
requested of non-Federal agencies or private parties. The State and
local governments and transit agencies compiling information are
voluntarily serving as consultants to FHWA and FTA for their own
convenience. As the proposers of the actions subject to Section 4(f),
and the owners, operators, and maintainers of the resulting
transportation facility, and key decision makers regarding the choices
involved in project development, it is easier for them to prepare the
Section 4(f) evaluations. Information is not requested of outside
entities except within the PRA exception relating to ``facts or
opinions submitted in response to general solicitations of comments
from the public.'' (5 CFR 1320.3(h)(4)).
National Environmental Policy Act
This proposed action would not have any effect on the quality of
the environment under the National Environmental Policy Act of 1969 (42
U.S.C. 4321) and is categorically excluded under 23 CFR 771.117(c)(20).
The proposed action is intended to
[[Page 42617]]
lessen adverse environmental impacts by standardizing and clarifying
compliance for Section 4(f), including the incorporation of clear
direction to take into account the overall harm of each alternative.
Executive Order 12630 (Taking of Private Property)
We have analyzed this proposed rule under Executive Order 12630,
Government Actions and Interface with Constitutionally Protected
Property Rights. We do not anticipate that this proposed rule would
effect a taking of private property or otherwise have taking
implications under Executive Order 12630.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
We have analyzed this action under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. We certify that this proposed rule is not an economically
significant rule and would not cause an environmental risk to health or
safety that may disproportionately affect children.
Executive Order 13175 (Tribal Consultation)
We have analyzed this proposed rule under Executive Order 13175,
dated November 6, 2000, and believe that the proposed action would not
have substantial direct effects on one or more Indian tribes; would not
impose substantial direct compliance costs on Indian tribal
governments; and would not preempt tribal laws. The proposed rulemaking
addresses obligations of Federal funds to States for Federal-aid
highway projects and to public transit agencies for capital transit
projects and would not impose any direct compliance requirements on
Indian tribal governments. While some historic Section 4(f) properties
are eligible for Section 4(f) protection because of their cultural
significance to a tribe, the proposed rule does not impose any new
consultation or compliance requirements on tribal governments.
Therefore, a tribal summary impact statement is not required.
Executive Order 13211 (Energy Effects)
We have analyzed this action under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use dated May 18, 2001. We have determined that it is
not a significant energy action under that order because, although it
is a significant regulatory action under Executive Order 12866, it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy. Therefore, a Statement of Energy
Effects is not required.
Privacy Act
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit
http://dms.dot.gov.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RINs contained in the heading of
this document can be used to cross-reference this action with the
Unified Agenda.
List of Subjects
23 CFR Part 771
Environmental protection, Grant program--transportation, Highways
and roads, Historic preservation, Mass transportation, Public lands,
Recreation areas, Reporting and recordkeeping requirements, Wildlife
refuges.
23 CFR Part 774
Environmental protection, Grant programs--transportation, Highways
and roads, Historic preservation, Mass transportation, Public lands,
Recreation areas, Reporting and recordkeeping requirements, Wildlife
refuges.
49 CFR Part 622
Environmental impact statements, Grant programs--transportation,
Mass transportation, Reporting and recordkeeping requirements.
Issued on: July 18, 2006.
Sandra K. Bushue,
Deputy Administrator, Federal Transit Administration.
J. Richard Capka,
Federal Highway Administrator.
For the reasons set forth in the preamble, and under the authority
of 23 U.S.C. 103(c), 109, 138, and 49 U.S.C. 303, and the delegations
of authority at 49 CFR 1.48(b) and 1.51, it is proposed to amend
Chapter I of Title 23 and Chapter VI of Title 49, Code of Federal
Regulations, by revising part 771, adding part 774, and revising part
622, respectively as set forth below.
Title 23--Highways
PART 771--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES [AMENDED]
1. The authority citation for part 771 continues to read as
follows:
Authority: 42 U.S.C. 4321 et seq.; 23 U.S.C. 109, 110, 128, 138
and 315; 49 U.S.C. 303, 5301(e), 5323(b), and 5324; 40 CFR parts
1500 et seq.; 49 CFR 1.48(b) and 1.51.
2. Revise Sec. 771.127(a) to read as follows:
Sec. 771.127 Record of decision.
(a) The Administration will complete and sign a record of decision
(ROD) no sooner than 30 days after publication of the final EIS notice
in the Federal Register or 90 days after publication of a notice for
the draft EIS, whichever is later. The ROD will present the basis for
the decision as specified in 40 CFR 1505.2, summarize any mitigation
measures that will be incorporated in the project and document any
required Section 4(f) approval in accordance with part 774 of this
title. Until any required ROD has been signed, no further approvals may
be given except for administrative activities taken to secure further
project funding and other activities consistent with 40 CFR 1506.1.
Sec. 771.135 [Removed]
3. Remove Sec. 771.135 in its entirety.
4. Add part 774 to read as follows:
PART 774--PARKS, RECREATION AREAS, WILDLIFE AND WATERFOWL REFUGES,
AND HISTORIC SITES (SECTION 4(F))
Sec.
774.1 Purpose.
774.3 Section 4(f) approvals.
774.5 Coordination.
774.7 Format.
774.9 Timing.
774.11 Applicability.
774.13 Exceptions.
[[Page 42618]]
774.15 Constructive use determinations.
774.17 Definitions.
Authority: 23 U.S.C. 103(c), 109(h), 138 and 204(h)(2); 49
U.S.C. 303; Section 6009 of the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users (Pub. L.
109-59, Aug. 10, 2005, 119 Stat. 1144); 49 CFR 1.48 and 1.51.
Sec. 774.1 Purpose.
The purpose of this part is to implement 23 U.S.C. 138 and 49
U.S.C. 303 which were originally enacted as Section 4(f) of the
Department of Transportation Act of 1966 and are still commonly
referred to as ``Section 4(f).''
Sec. 774.3 Section 4(f) approvals.
(a) The Administration may not approve the use, as defined in Sec.
774.17(l), of land from a significant publicly owned public park,
recreation area, or wildlife and waterfowl refuge, or any significant
historic site unless a determination is made that:
(1) There is no feasible and prudent alternative, as defined in
Sec. 774.17(h), to the use of land from the property; and the action
includes all possible planning, as defined in Sec. 774.17(b), to
minimize harm to the property resulting from such use; or
(2) The use of the property, including any avoidance, minimization,
mitigation, or enhancement measures committed to by the applicant, will
have a de minimis impact, as defined in Sec. 774.17(e), on the
property.
(b) If the analysis in paragraph (a)(1) of this section concludes
that all of the feasible and prudent project alternatives use some
Section 4(f) property, then the Administration may approve the most
prudent alternative that minimizes overall harm by considering the
following factors:
(1) The relative severity of the harm to the protected activities,
attributes, or features that qualify each Section 4(f) property for
protection;
(2) The relative significance of each Section 4(f) property;
(3) The views of the official(s) with jurisdiction over each
Section 4(f) property;
(4) The ability to mitigate adverse impacts to each Section 4(f)
property (including any measures that result in benefits to the
property);
(5) The degree to which each alternative meets the purpose and need
for the project;
(6) The magnitude of any adverse impacts to resources not protected
by Section 4(f);
(7) Extraordinary differences in costs among the alternatives; and
(8) Any history of concurrent planning or development of the
proposed transportation project and the Section 4(f) property.
(c) The coordination requirements in Sec. 774.5 must be completed
before the Administration may make Section 4(f) approvals under this
section. Requirements for the format and timing of Section 4(f)
approvals are located in Sec. Sec. 774.7 and 774.9, respectively.
Sec. 774.5 Coordination.
(a) Prior to making Section 4(f) approvals under Sec. 774.3(a)(1),
the Section 4(f) evaluation shall be provided for coordination and
comment to the official(s) with jurisdiction over the property and to
the Department of the Interior, and as appropriate to the Department of
Agriculture and the Department of Housing and Urban Development. A
minimum of 45 days shall be established by the Administration for
receipt of comments.
(b) Prior to making de minimis impact findings under Sec.
774.3(a)(2), the following coordination shall be undertaken:
(1) For historic properties, the consulting parties identified in
accordance with 36 CFR part 800 must be consulted; and the official(s)
with jurisdiction over the property must concur, in writing, in a
finding of ``no adverse effect'' or ``no historic properties affected''
in accordance with 36 CFR part 800. The Administration shall inform the
official(s) with jurisdiction of its intent to make a de minimis impact
finding based on their concurrence in the finding of ``no adverse
effect'' or ``no historic properties affected.'' Public notice and
comment other than the consultation with consulting parties in
accordance with 36 CFR part 800 is not required.
(2) For parks, recreation areas, and refuges, public notice and an
opportunity for public review and comment concerning the effects on the
protected activities, features, or attributes of the property must be
provided. Following the opportunity for public review and comment, the
Administration shall inform the official(s) with jurisdiction of its
intent to make a de minimis impact finding; and the official(s) with
jurisdiction over the property must concur in writing that the project
will not adversely affect the activities, features, or attributes that
make the property eligible for Section 4(f) protection.
(c) Uses of Section 4(f) property covered by a programmatic Section
4(f) evaluation under Sec. 774.7(g) shall be documented and
coordinated as specified in the programmatic Section 4(f) evaluation.
Sec. 774.7 Format.
(a) A Section 4(f) evaluation prepared under Sec. 774.3(a)(1) must
include sufficient supporting documentation to demonstrate why there is
no feasible and prudent alternative, as defined in Sec. 774.17(h),
that would avoid using the Section 4(f) property; and the evaluation
must summarize all possible planning, as defined in Sec. 774.17(b),
that occurred to minimize harm to the Section 4(f) property.
(b) The documentation supporting a Section 4(f) approval should be
presented in the NEPA document for the project in accordance with
Sec. Sec. 771.105(a) and 771.133 of this title. If the Section 4(f)
documentation cannot be included in the NEPA document, then it shall be
presented in a separate document. The Section 4(f) documentation shall
be developed by the applicant in cooperation with the Administration.
(c) If all feasible and prudent alternatives use some Section 4(f)
property, the applicant must select the most prudent alternative that
minimizes overall harm by considering the factors listed in Sec.
774.3(b). This information must be documented in the Section 4(f)
approval document.
(d) All Section 4(f) approvals under Sec. 774.3(a)(1) must be
reviewed for legal sufficiency.
(e) A Section 4(f) approval may involve different levels of detail
where the Section 4(f) involvement is addressed in a tiered
Environmental Impact Statement (EIS) under Sec. 771.111(g) of this
title.
(1) When the first-tier, broad-scale EIS is prepared, the detailed
information necessary to complete the Section 4(f) approval may not be
available at that stage in the development of the action. In such
cases, the evaluation should be made on the potential impacts that a
proposed action will have on Section 4(f) property and whether those
impacts could have a bearing on the decision to be made. A preliminary
determination may be made at this time as to whether there are feasible
and prudent locations or alternatives for the action to avoid the use
of Section 4(f) property. This preliminary determination shall consider
all possible planning to minimize harm to the extent that the level of
detail available at the first-tier EIS stage allows. It is recognized
that such planning at this stage will normally be limited to ensuring
that opportunities to minimize harm at subsequent stages in the
development process have not been precluded by decisions made at the
first-tier stage. This preliminary determination is then incorporated
into the first-tier EIS.
[[Page 42619]]
(2) A preliminary Section 4(f) determination made in the first-tier
stage shall be considered final and need not be revisited as part of a
final Section 4(f) approval granted during the second-tier stage.
(3) The final Section 4(f) approval shall be made in the second-
tier categorical exclusion (CE), environmental assessment (EA), or
final EIS or in the record of decision (ROD) or finding of no
significant impact (FONSI). Where the Section 4(f) approval is made in
a second-tier final EIS or EA, the Administration will summarize the
basis for its Section 4(f) approval in the ROD or FONSI.
(f) A de minimis impact finding under Sec. 774.3(a)(2) must
include sufficient supporting documentation to demonstrate that the
impacts, after avoidance, minimization, mitigation, or enhancement
measures are taken into account, are de minimis as defined in Sec.
774.17(e); and that the coordination required in Sec. 774.5(b) has
been completed.
(g) The Administration may develop additional programmatic Section
4(f) determinations. Programmatic Section 4(f) determinations shall be
reviewed for legal sufficiency and approved by the Headquarters Office
of the Administration.
Sec. 774.9 Timing.
(a) Any use of lands from a Section 4(f) property shall be
evaluated early in the development of the action when alternatives to
the proposed action are under study.
(b) For actions processed with EISs, the Administration will make
the Section 4(f) approval either in its approval of the final EIS or in
the ROD. Where the Section 4(f) approval is documented in the final
EIS, the Administration will summarize the basis for its Section 4(f)
approval in the ROD. Actions requiring the use of Section 4(f)
property, and proposed to be processed with a FONSI or classified as a
CE, shall not proceed until notification by the Administration of
Section 4(f) approval.
(c) If the Administration determines that Section 4(f) is
applicable after the CE, FONSI, or final EIS has been processed, a
separate Section 4(f) approval will be required when:
(1) A proposed modification of the alignment or design would
require the use of Section 4(f) property;
(2) The Administration determines that Section 4(f) applies to a
property; or
(3) A proposed modification of the alignment, design, or measures
to minimize harm (after the original Section 4(f) approval) would
result in a substantial increase in the amount of Section 4(f) property
used, a substantial increase in the adverse impacts to Section 4(f)
property, or a substantial reduction in mitigation measures.
(d) A separate Section 4(f) approval required under paragraph (c)
of this section will not necessarily require the preparation of a new
or supplemental environmental document. Where a separate Section 4(f)
approval is required, any activity not directly affected by the
separate Section 4(f) approval can proceed during the analysis,
consistent with Sec. 771.130(f) of this title.
(e) Section 4(f) may apply to archeological sites discovered during
construction, as set forth in Sec. Sec. 774.11(f) and 774.13(b) of
this part. In such cases, the Section 4(f) process will be expedited
and any required evaluation of feasible and prudent alternatives will
take account of the level of investment already made. The review
process, including the consultation with other agencies, will be
shortened as appropriate.
Sec. 774.11 Applicability.
(a) The Administration will determine the applicability of Section
4(f) in accordance with this part.
(b) When another agency is the lead agency for the NEPA process,
the Administration shall make any required Section 4(f) approvals
unless the lead agency is another U.S. DOT agency.
(c) Consideration under Section 4(f) is not required when the
official(s) with jurisdiction over a park, recreation area or refuge
determine that the property, considered in its entirety, is not
significant. In the absence of such a determination, the Section 4(f)
property will be presumed to be significant. The Administration will
review a determination that a park, recreation area, or refuge is not
significant to assure its reasonableness.
(d) Where Federal lands or other public land holdings (e.g., State
forests) are administered under statutes permitting management for
multiple uses, and, in fact, are managed for multiple uses, Section
4(f) applies only to those portions of such lands which function for,
or are designated in the plans of the administering agency as being
for, significant park, recreation, or refuge purposes. The
determination of which lands so function or are so designated, and the
significance of those lands, shall be made by the official(s) with
jurisdiction over the property. The Administration will review this
determination to assure its reasonableness.
(e) In determining the application of Section 4(f) to historic
sites, the Administration, in cooperation with the applicant, will
consult with the official(s) with jurisdiction to identify all
properties on or eligible for the National Register of Historic Places
(National Register). The Section 4(f) requirements apply only to sites
on or eligible for the National Register unless the Administration
determines that the application of Section 4(f) is otherwise
appropriate.
(f) Section 4(f) applies to all archeological sites on or eligible
for inclusion on the National Register, including those discovered
during construction, except as set forth in Sec. 774.13(b).
(g) Temporary recreational activity on property formally reserved
for future transportation use will not subject the property to Section
4(f). Where the property is formally reserved for transportation use
before or at the same time an adjacent park, recreation area, or refuge
is established and concurrent or joint planning or development occurs,
then any resulting proximity impacts of the transportation project will
not be considered a constructive use as defined in Sec. 774.17(d).
Examples of such concurrent or joint planning or development include,
but are not limited to:
(1) Designation or donation of property for the specific purpose of
such concurrent development by the entity with jurisdiction or
ownership of the property for both the potential transportation project
and the Section 4(f) property, or
(2) Designation, donation, planning or development of property by
two or more governmental agencies, with jurisdiction for the potential
transportation project and the Section 4(f) property, in consultation
with each other.
Sec. 774.13 Exceptions.
The Administration has identified various exceptions to the
requirement for Section 4(f) approval. These exceptions include, but
are not limited to:
(a) Restoration, rehabilitation, or maintenance of transportation
facilities that are on or eligible for the National Register when:
(1) The Administration finds that such work will not adversely
affect the historic qualities of the facility that caused it to be on
or eligible for the National Register, and
(2) The official(s) with jurisdiction over the property have been
consulted and have not objected to the
[[Page 42620]]
Administration finding in paragraph (a)(1) of this section.
(b) Archeological sites where the Administration, after
consultation with the official(s) with jurisdiction over the property,
determines that the archeological resource is important chiefly because
of what can be learned by data recovery and has minimal value for
preservation in place. This exception applies both to situations where
data recovery is undertaken or where the Administration decides, with
agreement of the official(s) with jurisdiction, not to recover the
resource.
(c) Designations of park and recreation lands, refuges, and
historic sites that are made, or determinations of significance that
are changed, late in the development of a proposed action. With the
exception of the treatment of archeological resources in Sec.
774.9(e), the Administration may permit a project to proceed without
consideration under Section 4(f) if the property interest in the
Section 4(f) lands was acquired for transportation purposes prior to
the designation or change in the determination of significance and if
an adequate effort was made to identify properties protected by Section
4(f) prior to acquisition. However, if the age of an historic site is
close to, but less than, 50 years at the time of the governmental
agency's acquisition, adoption, or approval, and except for its age it
would be eligible for the National Register, and construction would
begin after the site was eligible, then the site is considered a
historic site eligible for the National Register.
(d) Temporary occupancies of land that are so minimal as to not
constitute a use within the meaning of Section 4(f). The following
conditions must be satisfied:
(1) Duration must be temporary, i.e., less than the time needed for
construction of the project, and there should be no change in ownership
of the land;
(2) Scope of the work must be minor, i.e., both the nature and the
magnitude of the changes to the Section 4(f) property are minimal;
(3) There are no anticipated permanent adverse physical impacts,
nor will there be interference with the protected activities, features,
or attributes of the property, on either a temporary or permanent
basis;
(4) The land being used must be fully restored, i.e., the property
must be returned to a condition which is at least as good as that which
existed prior to the project; and
(5) There must be documented agreement of the official(s) with
jurisdiction over the property regarding the above conditions.
(e) Proximity impacts that are not substantial enough to constitute
a ``constructive use'' as defined in Sec. 774.17(d). Examples include:
(1) Compliance with the requirements of 36 CFR 800.5 for proximity
impacts of the proposed action, on a site listed on or eligible for the
National Register, results in an agreement of ``no historic properties
affected'' or ``no adverse effect'';
(2) The impact of projected traffic noise levels of the proposed
highway project on a noise sensitive activity do not exceed the FHWA
noise abatement criteria as contained in Table 1 in Part 772 of this
title, or the projected operational noise levels of the proposed
transit project do not exceed the noise impact criteria for a Section
4(f) activity in the FTA guidelines for transit noise and vibration
impact assessment;
(3) The projected noise levels exceed the relevant threshold in
paragraph (e)(2) of this section because of high existing noise, but
the increase in the projected noise levels if the proposed project is
constructed, when compared with the projected noise levels if the
project is not built, is barely perceptible (3 dBA or less);
(4) There are proximity impacts to a Section 4(f) property, but a
governmental agency's right-of-way acquisition, an applicant's adoption
of project location, or the Administration approval of a final
environmental document, established the location for a proposed
transportation project before the designation, establishment, or change
in the significance of the property. However, if the age of an historic
site is close to, but less than, 50 years at the time of the
governmental agency's acquisition, adoption, or approval, and except
for its age it would be eligible for the National Register, and
construction would begin after the site was eligible, then the site is
considered a historic site eligible for the National Register;
(5) Overall (combined) proximity impacts caused by a proposed
project do not substantially impair the activities, features, or
attributes that qualify a property for protection under Section 4(f);
(6) Proximity impacts will be mitigated to a condition equivalent
to, or better than, that which would occur if the project were not
built;
(7) Change in accessibility will not substantially diminish the
utilization of the Section 4(f) property; or
(8) Vibration levels from project construction activities are
mitigated, through advance planning and monitoring of the activities,
to levels that do not cause a substantial impairment of protected
activities, features, or attributes of the Section 4(f) property.
(f) Park road or parkway projects developed in accordance with 23
U.S.C. 204.
(g) Trail-related projects funded under the Recreational Trails
Program, 23 U.S.C. 206(h)(2).
(h) Transportation enhancement and mitigation projects where the
use of the Section 4(f) property is solely for the purpose of
preserving or enhancing the activities, features, or attributes that
qualify the property for Section 4(f) protection; and the official(s)
with jurisdiction over the property agrees in writing that the use
benefits or improves said activities, features, or attributes of the
property.
(i) Alternative transportation facilities and services in parks and
public lands that are funded under 49 U.S.C. 5320.
(j) The Interstate System and individual elements of the Interstate
System, with the exception of those elements formally designated by
FHWA for Section 4(f) protection on the basis of national or
exceptional historic significance.
Sec. 774.15 Constructive use determinations.
(a) If the project results in a constructive use, as defined in
Sec. 774.17(d), of a nearby Section 4(f) property, the Administration
shall evaluate that use in accordance with Sec. 774.3(a)(1). The
Administration is not required to determine that a project would not
result in a constructive use of a nearby Section 4(f) property.
However, such a determination may be made at the discretion of the
Administration. When a constructive use determination is made, it will
be based, to the extent it reasonably can, upon the following:
(1) Identification of the current activities, features, or
attributes of a property which qualify for protection under Section
4(f) and which may be sensitive to proximity impacts;
(2) An analysis of the proximity impacts of the proposed project on
the Section 4(f) property. If any of the proximity impacts will be
mitigated, only the net impact need be considered in this analysis. The
analysis should also describe and consider the impacts which could
reasonably be expected if the proposed project were not implemented,
since such impacts should not be attributed to the proposed project;
(3) Consultation, on the foregoing identification and analysis,
with the
[[Page 42621]]
official(s) with jurisdiction over the Section 4(f) property.
(b) The Administration has reviewed the following situations and
determined that a constructive use occurs when:
(1) The projected noise level increase attributable to the project
substantially interferes with the use and enjoyment of a noise-
sensitive facility of a property protected by Section 4(f), such as
hearing the performances at an outdoor amphitheater, sleeping in the
sleeping area of a campground, enjoyment of a historic site where a
quiet setting is a generally recognized feature or attribute of the
site's significance, enjoyment of an urban park where serenity and
quiet are significant attributes, or viewing wildlife in an area of a
wildlife and waterfowl refuge intended for such viewing;
(2) The proximity of the proposed project substantially impairs
esthetic features or attributes of a property protected by Section
4(f), where such features or attributes are considered important
contributing elements to the value of the property. Examples of
substantial impairment to visual or esthetic qualities would be the
location of a proposed transportation facility in such proximity that
it obstructs or eliminates the primary views of an architecturally
significant historical building, or substantially detracts from the
setting of a park or historic site which derives its value in
substantial part due to its setting;
(3) The project results in a restriction of access which
substantially diminishes the utility of a significant publicly owned
park, recreation area, or a historic site;
(4) The vibration impact from operation of the project
substantially impairs the use of a Section 4(f) property, such as
projected vibration levels from a rail transit project that are great
enough to affect the structural integrity of a historic building or
substantially diminish the utility of the building; or
(5) The ecological intrusion of the project substantially
diminishes the value of wildlife habitat in a wildlife or waterfowl
refuge adjacent to the project or substantially interferes with the
access to a wildlife or waterfowl refuge, when such access is necessary
for established wildlife migration or critical life cycle processes, or
substantially reduces the wildlife use of a wildlife or waterfowl
refuge.
Sec. 774.17 Definitions.
The definitions contained in 23 U.S.C. 101(a) are applicable to
this part. In addition, the following definitions apply:
(a) Administration. The Federal Highway Administration or the
Federal Transit Administration, whichever is making the approval for
the transportation program or project at issue.
(b) All Possible Planning. All possible planning to minimize harm
means that measures that would reduce the adverse impacts resulting
from the use of Section 4(f) property must be included in the project
unless such measures are not prudent. All possible planning does not
require analysis of avoidance alternatives.
(1) In evaluating the prudence of minimization and mitigation
measures to minimize harm under Sec. 774.3(a)(1), the Administration
will consider:
(i) The views of the official(s) with jurisdiction over the Section
4(f) property;
(ii) With regard to public parks, recreation areas, and refuges,
the measures may involve a replacement of land or facilities of
comparable value and function, or monetary compensation to enhance the
remaining property or to mitigate the adverse impacts of the project in
other ways;
(iii) With regard to historic sites, the measures normally serve to
preserve the historic activities, features, or attributes of the site
as agreed by the Administration and the official(s) with jurisdiction
over the property in accordance with the consultation process under 36
CFR part 800;
(iv) Whether the cost of the measures is a reasonable public
expenditure in light of the adverse impacts of the project on the
Section 4(f) property and the benefits of the measure to the property,
in accordance with Sec. 771.105(d) of this title; and
(v) The impacts of the measures outside of the Section 4(f)
property.
(2) A de minimis impact finding under Sec. 774.3(a)(2) subsumes
and obviates the requirement for all possible planning to minimize
harm.
(c) Applicant. The Federal, State, or local government authority,
proposing a transportation project, that the Administration works with
to conduct environmental studies and prepare environmental documents.
For transportation actions implemented by the Federal government on
Federal lands, the Administration or the Federal land management agency
may take on the responsibilities of the applicant described herein.
(d) Constructive Use. A constructive use occurs when the
transportation project does not incorporate land from a Section 4(f)
property, but the project's proximity impacts are so severe that the
protected activities, features, or attributes that qualify a property
for protection under Section 4(f) are substantially impaired.
Substantial impairment occurs only when the protected activities,
features, or attributes of the property are substantially diminished.
(e) De Minimis Impact.
(1) For historic sites, de minimis impact means that a
determination of ``no adverse effect'' or ``no historic properties
effected,'' in accordance with the regulation (36 CFR part 800)
implementing Section 106 of the National Historic Preservation Act of
1966, is appropriate.
(2) For parks, recreation areas, and refuges, a de minimis impact
is one that will not adversely affect the protected features,
attributes, or activities qualifying the property for protection under
Section 4(f).
(f) Environmental Assessment (EA). Refers to a document prepared
pursuant to NEPA and Sec. 771.119 of this title for a proposed project
that is not categorically excluded but for which an EIS is not clearly
required.
(g) Environmental Impact Statement (EIS). Refers to a document
prepared pursuant to NEPA and Sec. Sec. 771.123 and 771.125 of this
title for a proposed project that is likely to cause significant
impacts on the environment.
(h) Feasible and Prudent Alternative. A feasible and prudent
alternative avoids using Section 4(f) property and does not cause other
severe problems of a magnitude that outweighs the importance of
protecting the Section 4(f) property. In assessing the importance of
protecting the Section 4(f) property, it is appropriate to consider the
relative value of the resource to the preservation goals of the
statute. An alternative may be determined not feasible and prudent if:
(1) It cannot be built as a matter of sound engineering judgment;
(2) It compromises the project to a degree that it is unreasonable
to proceed with the project in light of its stated purpose and need;
(3) It results in severe safety or operational problems;
(4) After reasonable mitigation, it causes:
(i) Severe social, economic, or environmental impacts;
(ii) Severe disruption to established communities;
(iii) Severe disproportionate impacts to minority or low income
populations; or
(iv) Severe impacts to environmental resources protected under
other Federal statutes;
(5) It results in additional construction, maintenance, or
[[Page 42622]]
operational costs of an extraordinary magnitude;
(6) It causes other unique problems or unusual factors; or
(7) It involves multiple factors in paragraphs (1) through (6) of
this definition, that while individually minor, cumulatively cause
unique problems or impacts of extraordinary magnitude.
(i) Finding of No Significant Impact (FONSI). Refers to a decision
document prepared pursuant to NEPA and Sec. 771.121 of this chapter.
(j) Official(s) with Jurisdiction.
(1) In the case of historic properties, the official with
jurisdiction is the State Historic Preservation Officer or Tribal
Historic Preservation Officer for the State or Tribal government
wherein the property is located. When the Advisory Council on Historic
Preservation (ACHP) is involved in a consultation concerning a property
under Section 106 of the National Historic Preservation Act, the ACHP
is also an official with jurisdiction over that property for purposes
of this part.
(2) In the case of public parks, recreation areas, and refuges, the
official(s) with jurisdiction are the official(s) of the agency or
agencies that own or administer the property in question, and who are
empowered to represent the agency on matters related to the property.
(k) Record of Decision (ROD). Refers to a decision document
prepared pursuant to NEPA and Sec. 771.127 of this chapter.
(l) Use. Except as set forth in Sec. 774.13 of this part, a
``use'' of Section 4(f) property occurs:
(1) When land is permanently incorporated into a transportation
facility;
(2) When there is a temporary occupancy of land that is adverse in
terms of the statute's preservationist purposes as determined by the
criteria in Sec. 774.13(d) of this part; or
(3) When there is a constructive use of a Section 4(f) property as
defined in paragraph (d) of this section.
Federal Transit Administration
Title 49--Transportation
CHAPTER VI--FEDERAL TRANSIT ADMINISTRATION, DEPARTMENT OF
TRANSPORTATION
PART 622--ENVIRONMENTAL IMPACT AND RELATED PROCEDURES [AMENDED]
5. Revise the authority citation for Subpart A to read as follows:
Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 303, 5301(e),
5323(b), and 5324; Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (Pub. L. 109-59, Aug.
10, 2005, 119 Stat. 1144); 40 CFR parts 1500 et seq.; 49 CFR 1.51.
6. Revise Sec. 622.101 to read as follows:
Subpart A--Environmental Procedures
Sec. 622.101 Cross-reference to procedures.
The procedures for complying with the National Environmental Policy
Act of 1969, as amended (42 U.S.C. 4321 et seq.), and related statutes,
regulations, and orders are set forth in part 771 of title 23 of the
Code of Federal Regulations. The procedures for complying with 49
U.S.C. 303, commonly known as ``Section 4(f),'' are set forth in part
774 of title 23 of the Code of Federal Regulations.
[FR Doc. 06-6496 Filed 7-24-06; 10:10 am]
BILLING CODE 4910-22-P